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How can industry contracts strengthen the Government/contractor relationship post-award?


Mike Twardoski

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The latest episode of The Contracting Officer Podcast was devoted to the 3 Doers, and how the contractor becomes a member of the acquisition team post-award.

The discussion on the pod sparked a question for me as a contracts manager on the industry side: How can industry contracts strengthen the Government/contractor relationship post-award? ? I'm interested in hearing insights and/or anecdotes from the Government's perspective. Any best practices or stories about what makes a good industry contracts manager?  Is there someone (no names needed) you, as a Government employee, worked with in which you thought to yourself, "Company X's contracts manager was the best because he/she did this, this, and this..."?

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Probably the most important thing in my opinion is establishing good communications.  By that I mean providing timely, meaningful, and pertinent information especially on contract performance.  The government should be made aware of potential problems as soon as they surface and not after they actually materialize. This allows both parties to focus on solving them together.   Ideally the relationship should be collaborative with the focus on achieving program/agency mission. In many instances, the contractor can take the initiative to get things going.

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On 1/11/2023 at 10:33 AM, Mike Twardoski said:

Is there someone (no names needed) you, as a Government employee, worked with in which you thought to yourself, "Company X's contracts manager was the best because he/she did this, this, and this..."?

I’ve had many great experiences with the contractor representatives and the home office rep and/or owners over the years. Some were prior to the Corps of Engineers’ instituting the “Partnering” process between all stakeholders, including the Contractor in the early 90’s. Those pre-partnering experiences were primarily one on one relationships between my office or me and the contractor. Many other were after we implemented Partnering.

Establishing mutual trust and cooperation through effective oral (telephonic) and/or face to face communications are essential elements. Identifying and nurturing mutual goals and objectives are also important. And understanding the other person’s positions during difficulties is critical. 

Bringing the client agency and other internal and external stakeholders into Partnering relationships has often been very important and helpful.

By making them feel they are essential parts of solutions, we’ve had some great successes. 

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Perhaps my favorite all-time Corps of Engineers contract was a project to build a large, 650’ long steel, Thru-Truss railroad bridge and 1/2 mile,  pre-cast concrete trestle. This was from 1981-1982,  during construction of the 210 mile, Tenn-Tom Waterway.

This project was on an existing railroad that would cross over a new (not yet dredged) cut-off, Waterway section in Columbus, MS.

Peter Kiewit was our contractor. My Resident Engineer (the ACO) and I were able to build an exceptional professional relationship with Kiewit’s on-site located project manager.

I was our Resident Engineer “office engineer”, performing the contract admin duties for about 20 active contracts up and down the Tombigbee River in MS and AL

We also developed both professional and personal relationships with Kiewit’s site “office engineer” and Job site quality control engineer.

Some of my friends from our on-site QA office and I were given permission to play on a city adult league basketball team with the two Kiewit guys.

We all also played together on a local summer league softball team.

Two of us Corps guys and the QA guy were in the “Knights of Columbus”, a religious fraternal organization. We three ran a drink tent together once during a Special Olympics event at Mississippi State University.

Yet- we all maintained our professional responsibilities at work…

That project was exceptionally designed (Modjeski and Masters, our A/E in Mechanicsburg, PA.), managed (A/E, Corps, Railroad, and Kiewit) and constructed (Peter Keiwit).

It was on-time (early completion) with zero changes due to design deficiencies or other job conditions.

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On 1/11/2023 at 8:33 AM, Mike Twardoski said:

How can industry contracts strengthen

I have struggled with the question.  I am perplexed by the word "contracts" yet would agree strongly with the comments to date but they seem to be focused on what the government has done not what industry can do.  So expanding on the thoughts already offered here is my thought.    Switch it up.   Industry could better understand the guiding principles to the FAR  to use them to better foster the ideal of becoming a member of the acquisition team post award.  Be an advocate for a relationship of good faith and fair dealing.  Example - the offer partnering comes from the Government side why couldn't industry propose it with an offer?   Almost like the intent of Forum be the one to take the hand of the wayward CO and in the process of solicitation to contract award be more forceful, in a productive way, to forge a mutual contract and then once awarded not let the guard down and continue in the advocate role.   As advocates understand and help promote this - 1.102-4 Role of the Acquisition Team.  After all  if they really are a member of the "team" this should be industry's mission as well.

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The best communications I've had with contractors were as an ACO.  The contract and project managers and I spoke weekly, and with no pretense.  We were partners in furthering the project's goals (and were mutually glad the source selection was out of the way).

The worst communications I've had with contractors were as a PCO.  Our interactions were full of pretense, like talking to a public affairs spokesperson.  The person had ulterior motives.

Discussions are rife with ulterior motives that prevent good communications: PCOs are guilty of this when facts are omitted to prevent protest fodder.  Contractors are guilty of this when facts are omitted to prevent proposal weaknesses.  As a result, discussions are by default pretentious unless risks of protest and proposal judgment are taken by the parties, to overcome that default. 

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19 hours ago, Voyager said:

Discussions are rife with ulterior motives that prevent good communications: PCOs are guilty of this when facts are omitted to prevent protest fodder.  Contractors are guilty of this when facts are omitted to prevent proposal weaknesses.  As a result, discussions are by default pretentious unless risks of protest and proposal judgment are taken by the parties, to overcome that default. 

@VoyagerThose are very interesting assertions. (I assume you are talking about FAR 15.306(d) discussions.) I thank you for them.

Do you think contract negotiations and other such business communications are ever fully free of ulterior (hidden) motives and pretense (falseness)? Do you think there is ever a case when negotiations are fully free of cunning, and people put all their cards on the table face up?

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6 hours ago, Vern Edwards said:

Do you think there is ever a case when negotiations are fully free of cunning, and people put all their cards on the table face up?

I once had a large business construction contractor for Phase II of the Aberdeen (MS) Lock and Dam construction on the Tenn-Tom Waterway. From the get-go, starting with the Post Award (pre-construction) Conference,  the contractor’s site manager acted unpleasantly, like he was expecting confrontation. This attitude persisted for several weeks.

Soon, we had a need to add an  architectural masonry, site restroom building , which would cost around $60 thousand dollars today.

I developed a very detailed Government labor, equipment and material estimate from scratch, as though I was the actual builder.

When the proposal came in, it was somewhat less than my IGE. I reviewed it in detail and discovered that they had failed to include any cost or activity for interior and exterior painting.

My PNO strategy was to try to disarm this site manager’s apparent distrust of us.

When negotiations began, I told him that, after reviewing their proposal in detail, it appeared to be reasonable overall- and would be acceptable -  however they neglected to include the required painting, which I estimated would add about $2500 to the total, marked up number. I showed him my red-lined marked up copy of his proposal, showing the painting numbers and revised markups.

He was very surprised and read back through the proposal. He admitted that they forgot the painting. He accepted my counter number - and his attitude changed immediately. He thanked me for pointing out the omission. We had broken through the trust barrier! 

I transferred to Saudi Arabia a couple of months later but our relations with this contractor were much better! 

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On 1/14/2023 at 6:10 AM, Vern Edwards said:

Do you think contract negotiations and other such business communications are ever fully free of ulterior (hidden) motives and pretense (falseness)?

Yes but they are rare, yet I have personally experienced it.

On 1/14/2023 at 6:10 AM, Vern Edwards said:

Do you think there is ever a case when negotiations are fully free of cunning, and people put all their cards on the table face up?

Yes and not limited to when human life is on the line.  I have personally experienced it.

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7 hours ago, Vern Edwards said:

@VoyagerI'm not sure it's always true even then. Think Boeing's 737Max.

Thanks for the comments.

Stalin is quoted as saying, “The death of one man is a tragedy. The death of a million is a statistic.”  Okay, so you got me there, given that we’re talking in absolutes (you said “fully free of” and I said “only when”).  The higher the dollar amount at stake, the greater the chance the absolute conditions we are talking in will fail to prove true.  It seems logical that this is because the negotiators grow further from the work itself, and thus fall captive to that sad truism the People’s Commisar taught us nearly a century ago.  I therefore revise my proposition to the following instead:

Only when a human life is on the line, and both parties know his name.

I have seen this prove true in construction negotiations that are subject to FAR 52.236-13, Accident Prevention, with Alt. I - an alternate prescribed for the most hazardous of jobs.  The workforce just has to be entirely known - and known to be risking life and limb - and then all the statistics go out the window (in the early days of mask shortages, I even saw this shine through in COVID clause negotiations).  A workforce resident at a GOCO facility performing construction like in my agency will always be known, and are often known to be risking their lives.  I, for one, would never hide what I know from my contractor counterpart when negotiating their more hazardous work.

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Formerfed's response to the OP's inquiry about improving government-"industry" relations was to say, "Probably the most important thing in my opinion is establishing good communications."

I asked formerfed: "Would you say that good communications begin with discussions (FAR 15.306(d)) during source selection?"

Formerfed responded, "Absolutely."

Voyager responded: "Discussions are rife with ulterior motives that prevent good communications: PCOs are guilty of this when facts are omitted to prevent protest fodder.  Contractors are guilty of this when facts are omitted to prevent proposal weaknesses.  As a result, discussions are by default pretentious unless risks of protest and proposal judgment are taken by the parties, to overcome that default."

The reason I asked about discussions is that once upon a time, after the enactment of Public Law 87-653 in 1962, "discussions" were mandatory prior to competitively "negotiated" contract awards. Today, they are effectively optional (except for DOD contracts in excess of $100 million, in which case the government "should" conduct discussions), and I suspect that most competitively "negotiated" contracts (see FAR 15.000) are awarded without discussions. And even when agencies do conduct discussions, they are rarely full and free. They are limited to the disclosure of significant weaknesses and deficiencies.

Thus, in many if not most cases, government agencies award contracts to companies that are virtual strangers to them and with which they have had virtually no one-on-one communication about the contract's terms. This despite the fact many specifications and SOWs are lengthy and incorporate other documents by reference; U.S. government contracts are among the worlds most complex business documents; and in most cases neither party to the contract is expert with regard to their content.

The so-called "meeting of the minds" is more like a passing glance.

Why doesn't the government conduct full and free discussions during source selection? Why don't the parties talk and make sure they understand each other before committing themselves? Mainly because (1) discussions with all offerors in a competitive range take time and source selections already take forever, (2) a competitive range decision might be protested, and (3) discussions have historically been a protest risk.

I wonder if, in the interest of improving relations, that mythical entity some call "industry" would go along with (1) eliminating the competitive range rule and (2) letting agencies conduct one-on-one discussions with only the their prospective selectee before award, and let them bargain freely. I also wonder if "industry" would be (3) willing to accept agencies' choices and go along with the elimination of bid protests.

I know the answers to those questions. No, no, and no.

As a general rule, only in government contracting would a businessperson sue a prospective customer in an effort to force them into buying their product or service.

So much for improving relations with "industry."

As for maintaining good relations between particular contracting parties, agency and contractor—it is mainly a matter of adult behavior.

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I totally agree with you, Vern.  I wish the more complex contracts’ source selections were, instead of a competition for award, a competition for the opportunity to negotiate single-source with the agency, fully and freely (protest-free), perhaps even with the IGCE openly compared to the offer.  I wish we could grant favor during the source section process to the offeror with the best promissory language and the best experience and past performance.  And that’s it!

Since we are in the beginners forum, I will leave the following link as further reading on the subject to invite inquiry.

https://www.wifcon.com/anal/analcomproc.htm

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At the risk of sidetracking the discussion - which has been really insightful - thank you all for your insights. I really do appreciate it.

On 1/13/2023 at 10:26 AM, C Culham said:

Switch it up.   Industry could better understand the guiding principles to the FAR  to use them to better foster the ideal of becoming a member of the acquisition team post award.  Be an advocate for a relationship of good faith and fair dealing.  Example - the offer partnering comes from the Government side why couldn't industry propose it with an offer?   Almost like the intent of Forum be the one to take the hand of the wayward CO and in the process of solicitation to contract award be more forceful, in a productive way, to forge a mutual contract and then once awarded not let the guard down and continue in the advocate role.   As advocates understand and help promote this - 1.102-4 Role of the Acquisition Team.  After all  if they really are a member of the "team" this should be industry's mission as well.

I like this idea, @C Culham. It's something I'd like to adopt in a forthcoming multi-year, sole-source RFP (we're the incumbent seller). 

Along those lines, I do understand @Voyager's comments about motives. I don't have nearly the amount of experience as many here have, but the overall vibe I've gotten from Government contracting offices - with maybe one exception - is one of suspicion. Maybe I'm asking the wrong questions, but many of the PCO's/contracts specialists I've worked with seem to get really cagey whenever I use the word "collaboration," whether it's pre- or post-award. I understand it more pre-award, but post-award? It kinda baffles me. 

Therein lies the struggle for me. I want to show good faith by saying "let's collaborate." Perhaps some of the reluctance is due to lack of face to face time, especially post-COVID. One of my favorite PCO's - someone with nearly 30+ experience - was all about relationship building, and I've tried to take a page from his book. 

@joel hoffman I'd welcome the opportunity to play some softball with my Government counterparts! I love that story. 

@Vern Edwards your insights are always helpful, and I appreciate your posts here. 

If I may ask another question, would you all suggest finding a mentor on the Government side to get a better handle of the Government's perspective? Is that frowned upon?

I've harbored this idea for the past few weeks - finding a former PCO - to bounce ideas off of or just chat with on a semi-regular basis. I've tried this on the NCMA boards and through their Mentor portal, but alas, no takers. 

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55 minutes ago, Mike Twardoski said:

[T]he overall vibe I've gotten from Government contracting offices - with maybe one exception - is one of suspicion. Maybe I'm asking the wrong questions, but many of the PCO's/contracts specialists I've worked with seem to get really cagey whenever I use the word "collaboration," whether it's pre- or post-award. I understand it more pre-award, but post-award? It kinda baffles me. 

Buyer-seller distrust is part of the culture of government contracting, deeply embedded, and not entirely without reason and justification on either side. Let's not get too carried away with that "acquisition team" business.

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15 hours ago, Vern Edwards said:

Let's not get too carried away with that "acquisition team" business.

Hopefully it does not get kicked to the curb in total.   

The age old ideal of there is someplace in the middle where something works.  Totally not related but imagine being the supervisor of a Government employee, trusted at the time through out the agency, only to find due to circumstances that finally came to light that the person embezzled hundreds of thousands of dollars from the Government using the acquisition process as the ploy.  It was proven and jail time was the result.   My rose colored glasses were literally ripped from my face.   I agree very true but I would suggest applying the acquisition team business has more wins than it does losses.  It has its place!

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In the mid 90’s, after we established the competitive range for construction and design-build source selections, I decided to mail/email those offerors a copy of their consensus evaluation write up for discussions.

All the strengths were denoted with a  “+” and the corresponding narrative, all weaknesses denoted with a  “-“ and the corresponding narrative, all deficiencies denoted with an “*” and the corresponding narrative and requested clarifications denoted with a “?” and narrative.

We edited out the actual scores or adjectival ratings.

Then we conducted discussions by phone or in person. This was very effective for construction and design-build competitions.

I’m not sure that it would work for services, based upon the numbers of service contract protests that I see. However, we never had a protest issue using this method.

 

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@C Culham

I think the government's "acquisition team" idea in FAR 1.102 is more than a little hypocritical. The government wants a team attitude when it works for the government.

We had a discussion here at Wifcon some years ago about discussions in source selection, and I suggested that what the government ought to do is give every offeror in the competitive range a copy of the source selection board's evaluation of its proposal, including evaluator notes. I referred to the idea as "full disclosure discussions." Several people thought that was a bad idea. As I remember, one, who has participated in this thread (not you, Carl) suggested that the idea was nuts, and was adamantly opposed.

I have also advocated full disclosure debriefings. And Congress has passed a law to require COs to provide better debriefings and answer questions. But even then, contractors are having a hard time getting better information.

But the government requires contractors to provide it with data other than certified cost or pricing data when conducting competitive negotiations.:

Quote

 

Data other than certified cost or pricing data means pricing data, cost data, and judgmental information necessary for the contracting officer to determine a fair and reasonable price or to determine cost realism. Such data may include the identical types of data as certified cost or pricing data, consistent with Table 15-2 of 15.408, but without the certification. The data may also include, for example, sales data and any information reasonably required to explain the offeror’s estimating process, including, but not limited to–

           (1) The judgmental factors applied and the mathematical or other methods used in the estimate, including those used in projecting from known data; and

           (2) The nature and amount of any contingencies included in the proposed price.

 

Team. Yeah, right. I could provide other examples of government "team" play.

It seems that the government has two standards of teamwork, one for industry and one for itself.

There are many examples of fair play by individual COs. But the government as a whole? Nah.

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20 minutes ago, Vern Edwards said:

There are many examples of fair play by individual COs. But the government as a whole? Nah.

From that same altitude the view of industry very well could be the same.  My view is of an individual on many fronts.  How many numbers do I have to push in a phone call to hopefully reach a problem solver.

Mike's goal is lofty, I hope it brings success in his world of acquisition.

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20 hours ago, Vern Edwards said:

We had a discussion here at Wifcon some years ago about discussions in source selection, and I suggested that what the government ought to do is give every offeror in the competitive range a copy of the source selection board's evaluation of its proposal, including evaluator notes. I referred to the idea as "full disclosure discussions." Several people thought that was a bad idea. As I remember, one, who has participated in this thread (not you, Carl) suggested that the idea was nuts, and was adamantly opposed.

Vern,, if you are referring to me, my only problem was and still is providing individual evaluator notes from their initial proposal reading , prior to the consensus evaluation and rating process .

The only documentation that is relative to the final evaluation and ratings is the consensus write up. Our RFPs stated that the evaluation and ratings would be determined by consensus.

The individual notes only reflected thoughts during each person’s first look/reading. Those often changed after the group methodically discussed the actual requirements, their understanding of what was actually proposed and after the team applied the rating criteria.to to the consensus comments to determine the factor or subfactor ratings.

There was a tendency for individuals and teams to opine a rating first, then try to justify the rating. This is or was apparently a widespread practice, based upon my interaction with my students and other Districts. It was prevalent back in the numerical scoring days.

I didn’t allow the individual evaluators to rate the proposal during the initial review  They were only to write their comments and perceived strengths, weaknesses, deficiencies and uncertainties, which might require clarifications by other members or the proposer. 

If there were any dissenting opinions after the  discussions and final ratings, we were required to document them for the selection authority.

I don’t remember any instances of disagreements with the group’s consensus ratings or their agreed underlying comments which supported the ratings

Our lawyer, Steve Feldman, agreed with me and convinced the GAO in the single protest where it was an issue raised by the protestor during the discovery process. 

 

Edited by joel hoffman
Corrected reference to GAO and other minor edits.
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