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Vern Edwards

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Everything posted by Vern Edwards

  1. Yes, and if the contractor can hire the auditor, there is no need for the Government to hire them. It might take a year or longer for the Government to hire an auditor. 🙄
  2. @WC79ji20874 is correct! All the case that I cited says is that it was done. It was not an issue in that case. Look at your solicitation or contract to see what it says.
  3. Just Google "B-298912." If I weren't familiar with it, how would I have known to tell you about it?
  4. Since this thread exists and mentions me, a comment about those comments and The Source Selection Bootcamp®. I post only to clarify some misconceptions. FAR does not define "source selection" and term is used in contexts other than FAR Part 15. See, for example, the definition of source selection information in FAR 2.101, which reads in part as follows: Boldface added. See also FAR 36.601-3(b): Emphasis added. By statute, the competitive process described in FAR Part 15 is "competitive proposals." See 10 USC 2305(a)(2) and 41 USC 3301(b)(2). See also FAR 6.102(b) and 6.401(b). The FAR Part 15 process is also described as "competitive negotiation." It is true that FAR Subpart 15.3 is entitled "source selection" and that in common parlance "source selection" refers to the process addressed by that subpart, but it is not true that a source selection class "would" address only FAR Subpart 15.3. Broadly defined, the term "source selection" encompasses the contractor selection and contract formation processes prescribed by FAR 8.4, 13, 14, 15, 16.5, 35.016, 36.3, and 36.6, and a "source selection" class could address any process by which the government chooses a "source," i.e., a contractor. In short, a source selection class would presumably address whatever the person conducting the class wants to teach about contractor selection and contract formation. It is true that agencies use FAR Part 15 procedures when not required to do so. The Source Selection Bootcamp® discourages such practices. But the fact is that people do it, and when they do the GAO will look to FAR Part 15 for guidance when deciding a protest. See Innovative Quality Solutions, LLC, GAO B-419009.2, Dec. 17, 2020. So the course teaches the concepts, principles, and rules of FAR Part 15, as applied, to anyone who wants to understand them, no matter what kinds of acquisitions they conduct. The course does not teach detailed procedures, although it makes recommendations, because agencies and offices within agencies use a wide variety of detailed procedures, and what is "right" for some is "wrong" for others. The course teaches ideas, such as what kind of thing an evaluation factor is and about factor measurement and value functions, ideas you would learn in a class or from a book about multiple attribute decision making, which is what the source selection tradeoff process referred to in Part 15 is really about. The course also teaches ideas such as that contrary to FAR usage of common parlance, the government does not evaluate "proposals," it evaluates offerors and their offers based on information in proposals and available elsewhere. It teaches people how to read, interpret, and apply Part 15. What The Source Selection Bootcamp® tries to do is disperse the cloud of unknowing that inhibits simplification.
  5. Yes, it's possible. Why not? It is not impermissible, unless you have defined "key (i.e., important) personnel" or consultant in such a way as to make it so? There have been a number of GAO protest decisions which have mentioned consultants as key personnel. See, e.g., Magellan Health Services, GAO B-298912, Jan. 5, 2007:
  6. Please clarify: Are you saying that the contractor is proposing someone to be a key person who will be working for them as a consultant, rather than as an employee?
  7. Everyone wants examples. Many want them for cutting and pasting, because cutting and pasting is easier than thinking things through. Cutting and pasting instead of thinking is one of the reasons source selection is the mess it is today. Cutting and pasting is the antithesis of thinking. If you don't want to think, don't take the Source Selection Bootcamp®.
  8. Is it your impression that every firm which sells goods to a government prime contractor or subcontractor is itself a government subcontractor? Even firms whose goods are purchased for general stock inventory?
  9. You are not being clear. What do you mean by "stop gap/bridge"?
  10. See this: Competitive Processes in Government Contracting: The FAR Part 15 Process Model and Process Inefficiency.
  11. What do you mean by "use FAR Parts 8, 12, 13, and 15 together"? "Together" in what sense?
  12. Yes. There is no rule against it in statute or in the FAR.
  13. @joel hoffmanWhy would a U.S. attorney pursue bid shopping? Is bid shopping a violation of Federal law? I don't think so. Am I wrong? https://www.keglerbrown.com/publications/ethical-challenges-of-bid-shopping/#:~:text=Although bid depositories are intended,on the freedom of competition.&text=Bid shopping also may violate unfair trade practices laws. From the Associated General Contractors of America https://www.agc.org/industry-priorities/procurement/bid-shopping
  14. @C CulhamUhhh, Carl, I don't understand your sentence or the point you are making with respect the comment that you quoted. What do good staff have to do with politicians? What do you mean by "directed contract"?
  15. Transdigm was about purchases of spare parts under 112 contracts. The auditors were the DODIG and GAO. And the contractor was shamed into voluntarily giving back $16 million after Congress held hearings at which Jim Jordan and AOC were on the same side, believe it or not.
  16. Contracting can be a great job! I loved it. Unfortunately, management decided to eliminate the distinction between contracting and purchasing by eliminating purchasing agent jobs. From the GS-1105 purchasing series position classification standard, TS-122, March 1993: I think that most "contracting" work today is really purchasing agent work, thanks to the increased simplified acquisition threshold, the commercial items movement, the GSA FSS program, BPAs, and GWACs. Most of the work does not require a college degree. People told they would be "business advisors" are often sorely disappointed with the work that they do. I know many promising young people who have left the field because they find too much of the work to be simple, tedious, repetitive, and boring. We need far fewer 1102s and many more 1105s. Meanwhile, people who would be happy to do purchasing agent work and would do a good job of it cannot qualify for an 1102 position. Government managers did this to the contracting profession, by pursuing an ill-advised and short-sighted initiative to save money. It has left some agencies ill-equipped to handle complex acquisitions, and it has needlessly increased the costs and reduced the availability of first rate professional education for the people who are doing the complex work. Really, I sometimes just don't know what to think of the way our government is managed.
  17. Right! Which is why people shouldn't be so adamant about the success and superiority of the "best value" tradeoff process. It's a tool, and it's only as good or as bad as the people using it. (Come back, Shane!) Same with LPTA. It's because, despite all the hoorah about contracting personnel being professionals, agency heads and senior management see them as, at best, administrators or high-level clerks. (They will deny it, but judge them on what they do, not on what they say.) In any case, too many of us act like administrators and clerks. WE in contracting are partly to blame for that, by handing out too many CO appointments and not putting enough emphasis on professional education. Presidents had better wake up to the fact that they run a contracted-out government. Think back to the clown-show in February-March 2020 when nobody at the White House could figure out how to use the Defense Production Act. Someone should tell the next president that he or she had better take more personal interest in the contracting rules and bureaucracy. Our country obligates more than one-half trillion dollars a year under contract. Almost everything our government does, including war-fighting, is dependent on contracts, on the people who award and administer them, and on the rules that bind them. Presidents seem to be clueless in that regard until a problem like the Healthcare.gov website contracting fiasco rears its ugly head, or they can't figure out how to buy face masks and respirators in a hurry. https://www.theatlantic.com/politics/archive/2014/07/obamacare-website-has-cost-840-million/440478/
  18. @novice Speaking just for myself, you are not clear about what you want to know. Progress payments and performance-based payments are very big topics. Do you want a catalog of differences in concept and an explanation of differences in contract administration? Too much! Read FAR Subparts 32.5 and 32.10 and then do a Google search for more information or come back here with more specific and more clearly-worded questions. If you are asking about construction progress payments, see FAR 52.232-5.
  19. @formerfed I agree with everything you wrote. However... The government at large has been entangled in "best value source selection," now called "tradeoff process," since the mid-1980s. That process has become excessively time-consuming and costly, not because it is inherently so, but because of the way it is done. It's done that way not because it is unavoidable under the FAR, but because of certain norms and rituals, the worst of which is the instruction to offerors to submit "narrative" "technical" and "management" proposals. Here's an excerpt of a classic example from a Marine Corps RFP for "program and risk management support services": That's just a part of one paragraph in about 14 pages of instructions. I've got an entire file drawer full of such excerpts. The tradeoff process method was developed between 1926 and the late 1950s for weapon system design competitions; it is now used for almost everything, including janitorial services. The proliferated use of that process is a blight on our profession, a betrayal of the clients we support and the taxpayers. Its complexity and slowness are threats to national security. I'm neither joking nor exaggerating. Consider the JEDI source selection: https://about.bgov.com/news/what-comes-next-if-the-pentagon-strikes-down-jedi-cloud/ https://www.fedscoop.com/microsoft-president-shorter-bid-protest-process-jedi-aws/ If asked to do so we could not demonstrate that the tradeoff process consistently produces better performance outcomes than less burdensome methods. Tradeoff process source selection produces a contract; it does not produce a performance outcome. It was the method used to select the source in just about every major contract catastrophe that has occurred over the past 40 years, you name it. If we had to justify our use of that method based on factual evidence to a stern and knowing panel of critics, how could we do it? How could we show that the value actually received under contract was better than what we could have gotten using a simpler method? As for the heads of agencies, most of them are clueless when it comes to contracting methods, especially the political appointees. As for Congress... What is there to say about that failed institution that has not already been said? It has failed under the leadership of both parties by producing reactionary, rather than well-reasoned, acquisition legislation. And presidents are no better. Just about everything they are responsible for doing they must do with the help of contractors, even making war, yet most of them have no idea how the contracting system works and pay little attention to it. How far into his term, if ever, before President Biden nominates and empowers an OFPP administrator, gets that office out from under the thumb of OMB, and tells it to clean up the contracting system? Oh, formerfed, you've gotten me started. How cruel of you.
  20. @AcquirerI should warn you—most will react to any suggestion of sealed bidding as madness. What's funny is that LPTA is basically an efficient variation of two-step sealed bidding, which is described in FAR Subpart 14.5. But very few persons in contracting offices today have ever participated in a sealed bid acquisition, and they have been conditioned to think that the tradeoff approach is the only sane way to award contracts. But the government has used sealed bidding in the past to award contracts for some very complex projects. The biggest advantage of negotiated procurement is the ability to conduct discussions. But the default procedure described in FAR 52.2i5-1 is award without discussions. So go figure. The key to both sealed bidding and LPTA is the ability to specify your requirements in a contractually enforceable way. In fact, that kind of specification is very difficult to do for most service requirements, but the government does not recognize that fact. If it did, service contracting would be very different than it is now. Most source selection decisions for service requirements are based on so-called "technical proposals," which in many if not most cases are little more than sales pitches, often with little or no discernible or distinguishable promissory content. See Administration of Government Contracts, 5th ed., the discussion of "promissory language" in pages 154-156: In our legal system, the courts make a distinction between promises and statements of intention, opinions, and predictions. What we mostly get in the technical proposals that I have seen are statements of intention, opinions, and predictions. What's funny is that uneducated contracting officers think that incorporating technical proposals into contracts turns non-promissory language into promises. It doesn't. They think that because they do not receive quality contract law education. Too many of today's acquisition managers think they can rely on agency lawyers to protect the government's interests. Too many no longer think of COs as anything more than administrative personnel—signatures to keep the paper moving. The key distinction between LPTA and the tradeoff process is tradeoffs. Any Part 15 procurement, especially for IT services, in which the government announces its intention to award without making nonprice/price tradeoffs faces the prospect of a protest based on FAR 15.101-2 and DFARS 215.101-2-70, until the positions of the GAO and the Court of Federal Claims are clear.
  21. @AcquirerHere is a link to a 2017 14-slide presentation about the method that NASA calls "price performance tradeoff." https://doingbusiness.msfc.nasa.gov/documents/3128625/3169091/PPTO.pdf/10701f66-2e49-270e-2f95-3dc0f29ba94e Note this on slide 2: Of course, tradeoff analysis is what you would like to avoid. Now here is how you described your proposed method: You said you wanted to do that "instead requiring a time-consuming Best Value analysis where past performance is more important than price," and you expressly asked if that was a "workable strategy." ji20874 seems to think that it is: Emphasis added. If you don't look at any other proposal, and don't compare proposals on at least one nonprice factor and trade it off against price, then I don't see how you can say you've made a tradeoff. And It's the lack of tradeoffs that prompted Congress to restrict the use of LPTA. I have speculated that if you use your approach and a protester challenges it as essentially an LPTA prohibition work-around, then you run the risk that the protest will be sustained. I think that's a reasonable speculation. See Inserso Corp., GAO B-417791, Nov. 4, 2019. According to the GAO: The GAO denied the protest on that basis. I have attached the decision. The protester also challenged the agency's decision to evaluate "technical" on a pass or fail basis, but the GAO rejected that part of the protest as untimely. Presumably, that is still open to challenge in the future. But go ahead and take a risk. That's what they're always telling us to do, so give it a shot. In answer to the question you asked, I don't think your strategy is workable if protested. But who knows? As for sealed bidding, why not? You say that you want to buy a complex commercial service with military applications, but you are apparently willing to do it without technical/price or even price/past performance tradeoffs and without discussions. If you are willing to forego tradeoffs and to award on the basis of what you call "high confidence" past performance, without comparing the offerors on any factor other than price, and apparently without conducing discussions, why not cut all Part 15 procedural "hassles"? In fact, looking at FAR 6.401, how can you justify doing anything but sealed bidding? Instead of verifying "technical acceptability" you would verify "responsiveness." See FAR 14.301(a). You can establish special past performance and experience standards in accordance with FAR 9.104-2. (Always, always, always evaluate experience.) I'm very serious about sealed bidding. I don't know exactly what what you're buying, but the government used to buy all kinds of services using sealed bidding until CICA gave a boost to the "best value' craze in 1984. I have seen no evidence that "best value" Part 15 source selection has resulted in better contract outcomes overall. In fact, I know of no attempts by the government to verify that it has. We award contracts based on speculation about 'best value" described in "technical proposals" that may not constitute promises. I don't know of any post-performance analyses to determine whether we actually got what we hoped to get. Of course, we buy things today that we didn't buy in the 1980s, and not all can be specified adequately for purposes of sealed bidding or LPTA. But some can—presumably yours, if all you want to do is determine technical acceptability, consider past performance without tradeoffs, and award on the basis of price and past performance of sufficient quality. If you were to show that sealed bidding could result in the selection of a competent (responsible) contractor at a fair and reasonable price without all the hoorah associated with Part 15, and in less time, you would be an acquisition culture hero. It all depends on what you're buying and your ability to specify it. B-417791,B-417791.3.pdf
  22. @AcquirerI question whether what you and ji20874 are proposing would survive a protest against the terms of the solicitation. If you were buying anything that is truly technical, especially services, for which quality is important, then I think that GAO or the Court of Federal Claims might sustain a protest that what you have proposed is a thinly-disguised attempt to dodge the statutory restrictions on the use of LPTA. See the Congressional Research Service (CRS) report entitled, "Defense Primer: Lowest Price Technically Acceptable Contracts," Jan. 22, 2021. What bothered Congress about LPTA was the absence of a willingness on the part of the government to make tradeoffs between the quality of what was being offered and the price that was being paid. According to the report: The approach that you and ji20874 have described does not involve quality/price tradeoffs, which is exactly what Congress didn't like about LPTA. How hard can a past performance/price tradeoff process be? But there is another way out, and it doesn't involve the use of dodgy source selection procedures. Why not use sealed bidding and treat past performance as a responsibility factor? Sealed bidding is the preferred method of conducting acquisitions valued about the SAT. See FAR 6.401. I used to get a kick out of bid openings. Might be fun.
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