Jump to content
The Wifcon Forums and Blogs

Recommended Posts

His recommendations on contracting data is interesting, but I believe a bit more one sided.  Data on commodity purchasing may work with pork bellies, or chicken parts, but when it comes to IT products and services sharing pricing is a bit more complicated.  Pricing is made on a basis of terms and the structure of the agreement, therefore it would be very easy to draw the wrong conclusions based on pricing.  What he should be more focused on is costs.

For example, Agency A and Agency B bought the same product C, but A paid price 1.7x the price for that product than Agency B.  Does that mean that Agency B got the better deal?  Not necessarily.  Only by looking at what else Agency B bought would that determination be able to be made.  The vendor was able to give him a significant discount on product C, but also gave a slight markup to products D, E and F which are not included in the "price" comparison.  Context is everything in pricing, and you would need smart people dig into the reasons why pricing is what it appears to draw conclusion, but unfortunately there is not enough time (or smart people?) to do the digging.

His recommendation on sexy-ing up COR as a title strikes me as a little silly.  What a surprise.....a call for more training.  

Pay per transaction (by the drink) is a term taken from cloud computing (pay for what you use).  Many folks seem to have issues with this because they cannot easily predict the needed funds (easier with software than infrastructure).  He seems to shift the term though and move it to "pay for success".  I understand the concept and intent and see its application to cloud, but that may be the extent of it.  I just don't know what private sector entity would put up the upfront capital for something that may not be mandatory use.  To mush risk on the vendor, and it would create such high costs to account for that risk that the pay per scheme would not be tenable.  I could be wrong.

Lastly....LOVE the Share-in-savings contracting.  Many private sector expense management or IT auditing companies engage in this practice, and it is a big win when it works right.  That being said, outside of auditing inventories and usage for IT, I have a difficult time believing that the scenario he poses is one that would be adopted.

Link to post
Share on other sites

Made a few notes by heading below.  Overall it couldn't overcome my pessimistic nature, despite how much I like him.  Others will find the gems, apparently I can only throw mud:

1. Develop More Information about Contract Performance

A lot of discussion about disclosing prices here, seems like a mismatch with the heading.  Pricing transparency is pretty far down the list in terms of both cost and benefit.  The discussion about actual contract performance amounts to publicizing things the Government should already be tracking.

2. Pivot to Post-Award

CORs should be better!  What's not to love!  I think they have the same workforce issues we do- it takes years to make a good project officer.  It takes years to make a great craftsman of any profession.  Making people better is very hard, and will probably not happen.

3. Expand Forms of Contracting that Pay for Success

Grab bag of  procurement techniques which will not help the day-to-day contracts person.  It's great to know they exist but I will never use them.  Will not have the occasion to use any of these.  I'm not even sure if "Contests" should be run through the contracts group. 

Link to post
Share on other sites
Guest PepeTheFrog

Did anyone find these passages strange? Kelman states on pages 112-113:

"But smart contracting officials use more informal ways, including phone calls from agency leadership to a company’s CEO and agreements with the contractor to provide some free labor (or at least just costs, no fee) or outside consulting help to deal with problems, in “consideration” for not cancelling the contract."

Free labor in "consideration" for not cancelling the contract? Phone calls and "agreements" between agency leadership and company CEOs? Is PepeTheFrog misinterpreting or being too rigid and risk-averse?

Kelman states on page 112:

"For example, in cost reimbursement/time-and-materials contracts, there is little the government formally can do in the case of unsatisfactory performance short of the legally very difficult step (almost always legally challenged by the contractor) to terminate the contract..."

Is a termination for convenience a step that is legally very difficult? Isn't the power of termination for convenience rock-solid? Is there little the government formally can do in the case of unsatisfactory performance short of termination? What about past performance and CPARS? What about not exercising options? What about holding the contractor to the standards of the contract? Is PepeTheFrog misinterpreting or missing something?

Link to post
Share on other sites
Guest Vern Edwards

The first recommendation is Develop More Information about Contract Performance. Under that heading the memo devotes several pages (107 - 111) to the idea that the prices paid by the Government for certain "commodity" purchases (involving "intuitively understandable products," such as airline tickets, small package delivery services, and chicken parts) should be disclosed to the public. The author apparently believes that such disclosure would somehow lead to the improvement of "the performance and results of the procurement system."

Does anyone believe that?

 

 

Link to post
Share on other sites

No...because without expertise it raises more questions than it answers...and it is illegal to do so.  FOIA exempts pricing as trade secret information that is not meant for public release.  Ref:  "Documents which would reveal "[t]rade secrets and commercial or financial information obtained from a person and privileged or confidential." 5 U.S.C. § 552(b)(4)."  (http://www.foiadvocates.com/exemptions.html)

Link to post
Share on other sites
Guest Vern Edwards

I'm not sure about FOIA exemptions and trade secret protection as it applies to prices on Government contracts. As I recall, FOIA does not expressly exempt prices from disclosure. Kelman discusses a workaround in his memo.

Personally, I think taxpayers ought to be able to see what their government is paying, but I don't think such disclosure would improve the performance of the procurement system.

Link to post
Share on other sites

In the past I have always allowed line-item pricing at the point of competition as a redactable item, and legal counsel agreed.  My understanding is that information can be shared internally between government personnel, but to post such pricing for their competitors to see would not be allowable.

Link to post
Share on other sites

Under FOIA exemption (b)(4) exemption, the government can release pricing information (as contrasted to the bottom line price) if to do so would not be likely to cause substantial competitive harm to the submitter of the information.  See, National Parks & Conservation Association v. Morton, 498 F.2d 765 (D.C.Cir.1974).  This determination is made on a case by case basis and there is no absolute rule that CLIN pricing cannot be disclosed under FOIA.  Bottom line prices have generally been held to be releasable and not exempt under (b)(4).  McDonnell Douglas appears to have been the most prolific litigator on this point and there are several D.C. Circuit decisions involving MCDD discussing contract pricing information and FOIA.

Link to post
Share on other sites
2 hours ago, apsofacto said:

Apologies for wandering: Can prices paid really be redacted from a FOIA request?  

The U.S. Court of Appeals for the District of Columbia Circuit has held that the federal government is not permitted to disclose line item pricing information in a government contract in response to a Freedom of Information Act (FOIA) request. Canadian Commercial Corp. v. Department of the Air Force, 514 F.3d 37 (D.C. Cir. 2008).

Our office has policy to allow the release of prices if the awardee agrees to it. Otherwise, the argument is usually surrounding competitive harm - if a competitor knows your pricing they can undercut that pricing when the government is checking the market during option renewals.

Link to post
Share on other sites
42 minutes ago, Jamaal Valentine said:

The U.S. Court of Appeals for the District of Columbia Circuit has held that the federal government is not permitted to disclose line item pricing information in a government contract in response to a Freedom of Information Act (FOIA) request. Canadian Commercial Corp. v. Department of the Air Force, 514 F.3d 37 (D.C. Cir. 2008).

Wow!  I'm subject to the Texas Public Information Act at the moment and we may as well put the Contract File in the parking lot after the contract is awarded.

Link to post
Share on other sites
Guest
This topic is now closed to further replies.
×
×
  • Create New...