Vern Edwards

What is a "level of effort", as in "level of effort contract"?

Question: Does that kind of contract action make sense?

Question: Does that kind of contract action make sense? I wonder what that procurement, including the protest litigation, cost the taxpayers.

I don't know that it "incentivizes" protests. The biggest problem is time and cost, both the cost of the protest process and the costs of delayed contract awards. Protests hamper agencies' ability to get what they need to do their job for the American people. The benefits of the protest system are largely theoretical, rather than established in fact.

It takes time, and a protest afterward is still possible, even likely in hotly contests procurements.

The idea was to streamline the solicitation process by enabling combined synopsis/solicitation. The UCF did not lend itself to that process. However, the original concept of combined sysnopsis/solicitation has long been laid by the wayside.

The use of the word approach in RFP statements of evaluation factors and proposal preparation instructions is quite old. It probably dates back to the design competitions conducted by the Army and Navy under the Air Corps Act of 1926 and was carried forward in the use of negotiated procurements after passage of the Armed Services Procurement Act of 1947. It originally referred to aircraft design approach (two-engine, like the B-25, or four, like the B-17), but thanks to cut-and-paste practice it is now used in all sorts of procurements and means who knows what. "Proposed [technical or management] approach" is a very common evaluation factor and proposal preparation instruction term. The concept of management approach was adopted in the early 1960's, because preliminary designs were not good predictors of performance. The emphasis shifted to contractor capability. See Peck & Scherer, The Weapons Acquisition Process: An Economic Analysis, pp, 361 - 385.. I just downloaded from SAM.gov the following instruction in a combined synopsis/solicitation for human resources support services, RFP W91CRB-24-R-0014: The PWS is 32 pages long (no table of contents). Offerors get 15 pages in which to address five topics, so that's an average of three pages per topic. The second topic is PWS Task 5.2.2, entitled, "Civilian and Military Personnel Management." It is takes up about three quarters of a page and consists of six subtasks. So the space available is about 1/2 page per subtask. Subtask 5.2.2.3 says: What are the offerors expected to say about that in 1/2 of a page? Can you all see how utterly stupid this is? Whose fault is this kind of thing? THE CONTRACTING OFFICERS'! THEY ARE SUPPOSED TO BE THE "BUSINESS ADVISORS," THE SOURCE SELECTION EXPERTS. THEY ARE SUPPOSED TO BE THINKERS! What does approach mean? What do the evaluators want to know? When you ask someone to describe their "approach" to some undertaking, what do you want them to describe? What specific questions do you want them to answer? According to definition of approach in the Oxford English Dictionary (the OED--the 20-volume dictionary, not some "college" dictionary), definition 5b, approach means: Most contract specialists will say, "We want them to describe how they plan to do the job?" What does "how" mean? According to the OED it means: Approach is not specific. Asking "how" is not being specific. What, specifically, do you want to know? What specific information will affect your selection of an offeror and acceptance of its offer? So the next time the "technical people" write a cut-and-paste proposal preparation instruction, sit down with them and say: "What questions do you want answered?" And then, instead of writing a "proposal preparation instruction", write a questionnaire. If you want page limits, write an appropriate limit for each question. Think!

The UCF is one of the best things in the FAR. It was in the ASPR and FPR before FAR. It is an excellent way to organize the content of a solicitation and contract. FAR 12.303 prescribes a format to be used "to the maximum extent practicable," but its use is not strictly mandatory, and some agencies now use the UCF to organize commercial item RFPs and contracts. I recommend use of the UCF for large commercial item RFPs and contracts, because it works. Otherwise, RFPS for commercial items are sometimes badly organized, even chaotic, because contract specialists receive next to no training about organizing and writing RFPs and contracts, and important task.

P.S. See also Administration of Government Contracts, 5th ed., pp. 10 - 12, Protection of Public Interest, Consideration Required. Tell the stupid contractor that consideration is for its own protection, to ensure the extension is enforceable.

Emphasis added. See "Consideration for Time Extensions: Now You See It Now You Don't, The Nash & Cibinic Report (September 1990): That's the answer to the highlighted question, but there is more to it, so read the whole article. Read the cited board decisions. Read other board decisiopns. And do not ask me how to find the article or the board decisions. If you don't know or do not know how to find out you shouldn't be in the contracting business. I only answered this because the OP cited me.

Emphasis added. See "Consideration for Time Extensions: Now You See It Now You Don't, The Nash & Cibinic Report (September 1990): That's the answer to the highlighted question, but there is more to it, so read the whole article. Read the cited board decisions. Read other board decisiopns. And do not ask me how to find it the article or the board decisions. If you don't know or do know how to find out you shouldn't be in the contracting business. I only answered this because the OP cited me. Some of you guys said you'd take care of things after I "retired."

Actually, I say that the fence is excessively costly to maintain and does more harm than good.

See FARR 15.303. By the book, agency heads are responsible. When they delegate SSA to someone else, that person is responsible. Maybe what you mean is that no one is held responsible. No one is reprimanded or punished for process mismanagement when something goes wrong. Avoiding responsibility for that for which you are responsible is a very old, very human thing. And superiors are reluctant to hold anyone responsible because they would be responsible for that person.

I am often discouraged by how infrequently "professionals" in our business question underlying assumptions, theories, and doctrines. The OJT training they most receive does not encourage them to engage in self-interrogation, to inquire beyond official sources of information, to think deeply, and to ask challenging questions. The motto of the acquisition reformer is: Question all assumptions, conclusions, explanations, doctrines, policies, rules, factual assertions, processes, and procedures. The questions you must ask yourself everyday are: What do I really know about that?

Emphasis added. Get real about your work world. There is no evidence whatsoever that the current methods of contractor selection and contract award other than sealed bidding produce "best value." The average SSA could not give a coherent 15-minute presentation about concepts like value and risk. They could not provide a coherent explanation of the concept of evaluation factor. In most services acquisitions and many acquisitions of supplies the supposed "best value" determination is generally based on tradeoffs grounded on essay-writing contests ("describe your proposed approach" " demonstrate your understanding of the requirement")—"proposals" that are even now being produced in part with technology like ChatGPT—and on half-baked analyses of "key personnel" and "past performance" based on scant information. Conclusions about "value" are usually described in vague adjectival terms such as: Outstanding, Good, Acceptable, Marginal, or Unacceptable. See W. Edwards Deming's 1975 essay, "The Logic of Evaluation": What on earth does Good mean when applied to different proposals of various content? What is the margin of difference between Good and Acceptable? Evaluation documentation is often poor and is often destroyed. At the end of performance no one compares what was described in the winning proposal to what was actually received and writes a comparative assessment. In many agencies the winning proposal is not seen again after the source selection. And we have known for decades, since before WWII, that proposals are often based on desperate imagination and bull----. That knowledge is well documented. And lastly, where is the evidence that protests have made acquisition better in terms of the value actually received? On what facts (not suppositions) do you base that notion? What they mainly do is ensure compliance with administrative laws and regulations.

I think an injured contractor should be able to seek B&P costs and attorney's fees by submitting a claim for breach of implied contract to evaluate proposals in compliance with law and regulation and the terms of the solicitation. The SSA should be prosecuted for any criminal violation. If there is misconduct short of a criminal violation the SSA should be disciplined (demoted or fired) in accordance personnel rules.

Who knows? The FAR Part 15 source selection process and the processes modeled on it are stupid beyond repair. Not because of rules, but because of the ways that agencies choose to conduct it and dumb evaluation factors like "soundness of approach."

Deleted.

I now think that part of my proposal will include the elimination of mandatory debriefings. I think the concept of bid protests has outlived its usefulness. The government should promise to evaluate proposals fairly. After contractor selection it should be required to give every offeror an unexpurgated copy of all the government's documentation of the evaluation of its proposal and the basis for its source selection decision. If an offeror thinks the government did not properly evaluate its proposal it should be able to submit a claim for its bid and proposal costs based on breach of implied contract to the CO for final decision, with appeal to a board of contract appeals or the court of federal claims, just like any other claim. If a CO wants to explain the selection in an attempt to settle out of court, so be it. No CICA stays, no preliminary injunctions. No agency-level protests. No GAO or COFC protest. No GAO recommendations or COFC retraining orders or injunctions.The protest tribunals should be able to provide only monetary relief. That's it. If the government is found to have breached the implied contract and the contractor is entitled to compensation, the funds should come out of the agency's program or operating appropriation. If the agency is found to have broken the law in making its decision the SSA and/or the CO should be subject to appropriate discipline. We can no longer afford to delay procurements for months or even years while waiting for protest to reach their ultimate resolutions. Agencies should have to report all of their B&P claim payouts and disciplinary actions to the American public. Enough of the madness.

That is because, in mass, contracting people are not true professionals. The word is thrown around a lot, and people like to be called professionals and treated as such, but very few achieve that level in thought, communication, and action, and management does not insist that they do.

See: Briefing Papers 23-22, October 2023, "Use of Other Transactions," by Richard Dunn. Dunn was the first general counsel of DARPA, and is considered the Father of OTAs at DOD. https://strategicinstitute.org/wp-content/uploads/2023/12/Briefing-Papers-Uses-of-Other-Transactions.pdf He considers the DOD OTA guide to be a "retreat from innovation." Listen to the Strategic Institute podcasts: https://strategicinstitute.org/podcast/ot-guide-retreat/ https://strategicinstitute.org/podcast/unsticking-acquisition/

Emphasis added. Truer words were never written. FAR 2.101 defines "market research" as follows: "Market research means collecting and analyzing information about capabilities within the market to satisfy agency needs." Well, that's half-baked and FAR-like, but it's a process of some kind, right? So what are the procedures, sources of information, and techniques of analysis? Is knowledge of how to do market research supposed to reside in the head of every 1102 like Athena in the mind of Zeus, or do they have to learn it somewhere? Or is it just common sense? 1102s certainly won't learn market research by reading the slightly more than two pages of FAR Part 10, which was added to FAR almost 30 years ago, by FAC 90-32, September 18, 1995. And it has hardly changed, if at all, in the ensuing years. Why is FAR Part 10 so short? First, because the FAR is not a textbook, and second, because the people who wrote FAR Part 10 did not have a clue about how to conduct buyer/consumer market research. They could not have stood up before an audience of 1102s and extemporaneously described the process, procedures, and techniques in any detail, which means to me that they weren't competent to write a regulation about it and should not have done so. Worse, they didn't see to it that adequate guidance and instruction would be provided to the people they told to do it. How complicated is market research? Well, the fifth edition of Wiley's Market Research Handbook (2007) is 656 pages long and costs $176.00 new at Amazon. Springer's newer Handbook of Market Research (2022) is 1,132 pages and costs $700.00. Go figure. You can look at the tables of contents online. How pertinent do the contents seem to government buyers? They were written for sellers. Most publications about market research are written for sellers, not buyers. But the FAR authors thought the term sounded good, so they used it. It would have made more sense to give FAR Part 10 the title, Purchasing Research. I'm sure that various agencies have published market research guides, DHS has written one. But if you want to learn how business people buy commercial items buy and read Purchasing: Selection and Procurement for the Hospitality Industry, 9th Edition, (2017) by Feinstein, et al. A mere 700 pages. Available at Amazon, but not cheap. Highly rated. Don't tell me that buying commercial items is simple and that 1102s don't need special training in how to do it. Think choosing and buying handguns for law enforcement and the military is easy? Handgun buyers know that they are technically complicated in terms of design, especially pistols, and, in combination with the many varieties of ammunition, are remarkably complex systems in terms of performance (reliability, accuracy, lethality, and durability) and maintenance. BTW, I do not sell training about market research or buying commercial items, and I am not going to do so.

@formerfed And understand and apply it in practice? I wonder why? Read this from FAR 12.213, Other commercial practices: Now suppose that a contracting officer, in accordance with FAR 12.102(b), decides to conduct a competition for a commercial service pursuant to FAR Part 15. How should that CO pursue that "common practice" under FAR 15.206(d) and 15.306(d) and the GAO and COFC case law about discussions with offerors in the competitive range? I am not saying that it cannot be done. I could do it. What I am saying is that it would take a lot of thought and background knowledge to sell that idea to management and legal and then work it out successfully. And I say that some special training in that regard would be very helpful, even essential. To say that (1) the regulations about commercial items are not complex and that (2) they can be read, understood and applied in a couple of hours are, in my opinion, remarkable assertions. I will have worked in this business for 50 years come this August, and I would not make that claim for myself. But I will not argue the matter further. We disagree.

I disagree! It is complicated. There is an entire FAR part devoted to it. It prescribes significant departures from standard practice in specification, clause prescription, solicitation, and subcontracting. Many persons are ignorant and confused. "Is construction a commercial item?" "What clauses must be flowed down to subcontractors?" et cetera. Part 12 provides for some discretion with which many 1102s are not accustomed, and it still prescribes a number of policies with which the commercial market is unaccustomed: e.g., full and open competition, SAM, set-asides, etc. After 30 years since FASA, the FASA policy goals are still not fully understood by 1102s, and certainly not by functional personnel. Some of the functional organizations which 1102s must support have not been trained and adapted to those policies or trained in commercial product and (especially) service specification. Go back and look at the RFP I wrote about. Does is read like something written by persons who don't need specialized training?

The problem goes way beyond the 1102 workforce. The classic example is the Army's procurement of the M9 "modular handgun," a pistol, a relatively simple close combat weapon that is rarely used in combat. A commercial item if ever there was one. (Speaking now as someone who has owned a fair number of pistols and revolvers and who carried a 1911 in Vietnam.) The procurement was roundly criticized by, among many others, Sen. John McCain and the Army chief of staff at the time, General Milley. See: https://ec.militarytimes.com/static/pdfs/americas-most-wasted-the-army-s-costly-misfire-10-2015.pdf https://crsreports.congress.gov/product/pdf/IF/IF10911/3 Gen. Milley reportedly said: “We're not figuring out the next lunar landing. This is a pistol. Two years to test? At $17 million? You give me $17 million on a credit card, and I'll call Cabela's tonight, and I'll outfit every soldier, sailor, airman and Marine with a pistol for $17 million. And I'll get a discount on a bulk buy.” Spoken by a man who wore the Combat Infantryman's Badge. A mere contracting officer or chief of a contracting office would have been powerless to change that procurement. That's a bureaucracy problem, not a workforce problem, and a very old one.