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bob7947

The Federal Contracting Process: Starting from Scratch.

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I've been thinking about how I would build a federal contracting process from scratch.  I'm sure there are bits and pieces of discussion on here but I am thinking about more than that--say, putting it all in one place under a special forum on this board.  First, we need to have specific finite items to discuss.  For example, maybe a forum called "Starting from Scratch."  Within that forum, we have areas, such as, laws, regulations, personnel, etc.  How would we build a new system.  I can set it up, if I can figure out the new upgrade.  However, there needs to be people providing ideas.  I know, we have an area for the 809 panel and maybe before I'm dead they will have a final product.

Maybe such a new effort would draw new participants.  I'm just wondering if anyone cares.  If you do, give me some ideas.  If there are any responses, I can set it up for you.  You can even approve of the design for the forum.

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Bob - The purpose of doing this would be to draw new participants? Can you explain the nexus between the two?

For regular posters, I can't see that making much of a difference (for instance, see Vern's post on brainstorming source selection process improvements, which was extremely popular). For those who have never posted or occasional visitors, I can think of potentially better ways to increase participation (for instance, by making the message board link more visible on the Wifcon homepage). 

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Guest Vern Edwards
1 hour ago, bob7947 said:

I've been thinking about how I would build a federal contracting process from scratch. 

I think that topic is too big. It's mind-boggling. I wouldn't know where to start.

How about narrowing it. For instance:

The Competition in Contract Act has been the pre-eminent contracting law since 1984. It requires that agencies seek and obtain full and open competition and conduct competitive acquisitions in certain ways. See 10 U.S.C. §§ 2304 and 2305 and 41 U.S.C. Chapters 33 and 37 and FAR Parts 6, 14, and 15. How should those rules be changed, if at all? For example:

  • Should agencies still be required to seek "full and open" competition, or would some lesser standard be adequate or better?
  • Should we still have advocates for competition (formerly, competition advocates)?
  • Should sealed bidding (FAR Part 14) be eliminated as obsolete and replaced with LPTA competitive negotiation?
  • Should we eliminate the concept and rules about responsible prospective contractors (FAR Subpart 9.1) and replace it with evaluations of offeror qualifications?
  • Should price or cost still be a mandatory evaluation factor in all acquisitions?
  • Should agencies have to disclose the "relative importance" of evaluation factors?
  • If the CO wants to talk to an offeror about its proposal, should he or she be required to determine a competitive range and conduct discussions with all offerors within the competitive range?
  • Should the rules permit contractor selection followed by one-on-one negotiations with the selectee?
  • Should we still have a later proposals rule?

If you could change 10 USC §§ 2304 and 2305 and  41 USC Chapters 33 and 37, what would you change and how?

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Vern:

That should be possible.    If we need to change things, we can do it as we move along.

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I like the “from scratch” idea, if only because those who choose to discuss the topic can focus on principles, policies, and procedures of a new contracting process and the merits of such ideas rather than the “well X idea still conflicts with Y regulation/statute” conversations.  

As for where to start, the beginning of course:  “Begin at the beginning," the King said, very gravely, "and go on till you come to the end: then stop.” - Lewis Carroll -

 

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Mathew:

My original thought was that.  I can call the forum starting from scratch.  After that, we could add one thing at a time and we could eventually complete the process.  If we take Vern's suggestion, we could hash out CICA and when that dies out, we could move on to the next area of discussion.  When we are done with our components or building blocks, we might have a thorough look at the acqusition process.  I can move things around to fit our structure and needs.

For example:

The forum might be called:  Federal Contracting, Starting from Scratch.  Our first area would be CICA, as Vern suggested.  Once that is discussed to our heart's content, we could move on to the next block and build on our structure.  That way we could stay focused on one thing at a time.

Under CICA, we could discuss Vern's bullets one at a time.

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Would this new forum be used to discuss the federal contracting process as-is, or how we would like it to be?

Either way, I think starting with the end in mind is a good place to kickoff. For example, what is the purpose of having a/the process? What are the goals and objectives? 

Define (the problem), Ideate, Prototype

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34 minutes ago, bob7947 said:

Mathew:

My original thought was that.  I can call the forum starting from scratch.  After that, we could add one thing at a time and we could eventually complete the process.  If we take Vern's suggestion, we could hash out CICA and when that dies out, we could move on to the next area of discussion.  When we are done with our components or building blocks, we might have a thorough look at the acqusition process.  I can move things around to fit our structure and needs.

For example:

The forum might be called:  Federal Contracting, Starting from Scratch.  Our first area would be CICA, as Vern suggested.  Once that is discussed to our heart's content, we could move on to the next block and build on our structure.  That way we could stay focused on one thing at a time.

Under CICA, we could discuss Vern's bullets one at a time.

Sounds good to me, though maybe we shouldn’t call it CICA if we’re starting from scratch - let’s call it “Contractor Selection” or something to that effect.  Two additional topic areas could be: (1) Ethics & (2) Public Policy (after all this is the federal contracting process).

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Jamaal:

Quote

 how we would like it to be?

That has to be decided.  Most of what we know is current law and regulation.  If we eliminate sealed bidding, we get rid of Part 14 in the FAR and in any supplement.  We could probably elimiante 1/2 of an attorney-year in GAO's bid protest unit too.  That is up to anyone that wants me to set up a discussion forum for the remake.

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Bob, et al.:

I was recently thinking about the different ways the government goes about getting things done when it believes the current laws and regulations that apply to government contracts are too burdensome. The government has relied on expanded SAPs, OTAs, etc.

If the government can spend taxpayer dollars using SAP; or Other Transactions (OTs) using a 39 page guide, we should be able to create a contracting process guide from scratch. Services can spend up to $250M using OTAs and over $250M with approval.

OTA Guide 17-Jan-2017

5 minute video on recent OTAs:

Pathways to Commercial Innovation and Other Transaction Authority ( OTAs)

Reportedly, OTs can allow for much greater speed, flexibility, and accessibility in promoting the engagement of non-traditional and small business contractors to design and implement innovative business models that would not be feasible or practical under FAR-based contracts. This can include instances where specific clauses within the FAR would create unnecessary burden on the government or contractor. This article tackles some of the beliefs surrounding OTs:

Other Transaction (OT) Authority Mythology: Reflections on the Cure-all of DEFENSE Procurement*

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Jamaal:

Back in the 1980s, I had to analyze the purchasing system of a private company.  I ended up looking at PEPCO.  It's now an Excelon company but that doesn't make a difference.  They buy quite a bit of items from a lot of companies.  They had a purchasing manual and a purchasing organization.  Back then, I was interested in their small business efforts.  They were qualifying small businesses and searching for small businesses to participate as suppliers.  They did what the federal government did with only a purchasing manual.  Of course, they weren't burdened by a House Armed Services Committee and a Senate Armed Services Committee or a U. S. Congress, for that matter.  Now those jerks and their local counterparts will have an effect on an industry purchasing manual in some way but it is still manageable.  That is not the case for the U. S. Government.  Every committee in Congress oversees some federal agency..  With few exceptions, these committees' jurisdiction covered only one or a few agencies.  However, they can wreak havoc over a single agency's procurement system.  Look at the various VA and DHS bills now.

The Armed Services Committees' unintended goal is to make federal contracting impossible.  Look at that crap of Thornberry's that Mathew posted.  Yesterday, both Vern and I concluded it was crap at about the same time and offered simplicity.  Vern's ideas were elegant and mine were crude but they both tried to get down to something simple.  That is what is needed.

Maybe the solution for federal contracting is for Congress to declare a 5-year moratorium on contracting legislation.  During that period, OMB could hire a group of intelligent, untainted, university students to develop a purchasing manual for the federal government.  The rest of us, who have been involved with this mess for any amount of time, may never be able to see past the sand dues and clearly view federal contracting's promised land.

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Jamaal,

The wind might be blowing the other direction in the matter of OTA’s. 

Section 204 of Representative  Thornberry’s new draft acquisition reform proposal calls for a reporting of DoD OTAs over $5Million. 

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Guest Vern Edwards
20 hours ago, bob7947 said:

I've been thinking about how I would build a federal contracting process from scratch. 

6 hours ago, Jamaal Valentine said:

If the government can spend taxpayer dollars using SAP; or Other Transactions (OTs) using a 39 page guide, we should be able to create a contracting process guide from scratch.

Let's be clear about your objectives.

Are y'all talking about building or creating (specifying?)

  • a process (an ordered set of steps toward production of some outcome, from start to finish),
  • a procedure (a way of doing something),
  • a set of rules that govern a variety of processes and/or procedures,
  • all of that,
  • or something else? 

And what do you mean by "contracting"? Are you going by the definition in FAR 2.101 or are you focusing on contract formation and contract administration? Do you want to include bid protests and legal settlement of disputes?

At present we do not have a single process, procedure, or set of rules for contracting. We have several processes and procedures and several sets of rules for buying different kinds of goods and services. Do you want to create a single ("overarching") process, procedure, or set of rules for all?

If you were contracting for this, how would you describe the work to be done (or output)? What is your statement of work (or performance work statement)?

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There would likely be more participation if we crafted a new set of rules that govern contract formation and contract administration processes and procedures.

Analyzing the current rules and how they should be changed is perhaps a bit more likely to spark change, but few have the tools or know-how to facilitate participation.

If we created a new set of rules the Statement of Objectives could be:

(1) Satisfy requirements in terms of cost, quality, and timeliness of the delivered product or service;

(2) Minimize administrative operating costs;

(3) Conduct business with integrity, fairness, and openness; and

(4) Fulfill public policy objectives by --

(i) Maximizing the use of commercial products and services; and

(ii) Maximizing the use of small businesses, that have a track record of successful past performance or who demonstrate a current ability to perform, when reasonably expecting at least two will submit offers and that the award can be made at affordable prices that offers best value given any other factors.

Whatever's decided, hopefully we can avoid the Pentagon Wars - link to video.

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Guest Vern Edwards

@Jamaal Valentine

16 minutes ago, Jamaal Valentine said:

There would likely be more participation if we crafted a new set of rules that govern contract formation and contract administration processes and procedures.

So the its the new rules that must:

16 minutes ago, Jamaal Valentine said:

(1) Satisfy requirements in terms of cost, quality, and timeliness of the delivered product or service;

(2) Minimize administrative operating costs;

(3) Conduct business with integrity, fairness, and openness; and

(4) Fulfill public policy objectives....

Is that right? Is that all?

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Other countries (e.g., UK) operate government procurement via a statement of principles intended to guide discretion and judgment. The US has chosen a more prescriptive, rules-based, approach. Perhaps we can learn from other countries' procurement regimes.

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H-2-H

European Community?

Don:

Nah.  Although, 1792 was the first contracting law I could find.

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2 hours ago, Don Mansfield said:

If we start from scratch, do we have to work within the Constitution, or is that on the table, too?

Does it even need to be human-based?   This seems like an ideal task for the AI procurement bots.  

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Where does everyone think the problems in federal procurement are coming from? Is it the thick rule book(s)? Is it the lack of delegation to the lowest possible level? Is it the process? Fear of protests? The oversight? Fear of simplifying? Fear of a bad deal?

I'm curious to know everyone's opinion. My personal opinion is almost all of the above, but mostly the oversight and fear of protests.

It's been pretty rare in my experience that my leadership feared a bad deal. They always fear protests. That being said, my experience isn't large weapons systems or anything extremely complex.

I agree that the rules and regulations need to be scrubbed, but I feel that the more important change needs to be in the culture of our leaders (supervisors, chiefs, clearance authorities, etc). Stop being worried about avoiding protest and instead focus on "can we defend this position?" If we can, move forward. If we can't, then press forward.

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Guest Vern Edwards

The number one problem is a lack of professional knowledge and competence on the part of the workforce. I believe there is general agreement about that. All other problems are secondary,.

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18 minutes ago, Vern Edwards said:

The number one problem is a lack of professional knowledge and competence on the part of the workforce. I believe there is general agreement about that. All other problems are secondary,.

I can get behind that. How do suppose it gets fixed? Training is a rough one, the Government "tries" with DAU. I think one big problem with the workforce is you've got two extremes. Ones who don't care and pencil whip everything with LPTA, and the others are "too good" in which they over-analyze and drag out acquisitions when it's unnecessary.

So two questions really:

How do you fix it?

Where do you start? From higher dollar acquisitions down to SAP? Or start from the bottom and work your way up? Or is there a "blanket" solution?

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If we are going to improve professional knowledge I can add that to the sole beginning topic.  Let's not discuss it here.

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