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PM63A4

Doke Testimony

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Vern-

I'll drop the cell phone example I brought up because it's really not part of my argument. For what it's worth, I don't disagree with anything substantive that you said in your response to that. In all honesty, you didn't work with me as much as I had hoped a reader would with such a simplified "11th grade" example. My point was more about the subtleties of requirements training, not about which type of acquisition strategy to use. So we can drop that, unless you want to keep going and/or get the last word. But again, I don?t disagree with anything substantive that you said on this point. And I certainly didn?t mean to waste your time.

But I wanted to go back to my original points, which was in regard to Mr. Doke?s testimony and its applicability to the use of best value vs. LPTA. I honestly think that Mr. Doke *is* advocating the use of LPTA/sealed bidding and *is* suggesting that best value is to be avoided at all costs. And I think you disagree with that, but I'm not sure.

Again, Mr. Doke says the most important thing we can right now to fix government procurement is to have the government report to Congress any and all cases in which the government pays a "premium" for a contractor to exceed a stated requirement. So, for the purposes of this discussion, he wants any best value awards in which the award isn't given to the lowest bidder (within the competitive range) to be reported to Congress.

Now, since Mr. Doke never says what Congress should do with the information, I think we are required to read between the lines. And when I do that in this case, I make assumptions and conclude that he is thinking that his recommendation will drive the behavior of government SSAs and decisionmakers away from best value and towards LPTA. Again, I'm reading between the lines, and I acknowledge that I can't authoritatively say what he's thinking. But my gut feel is he doesn't want the numbers reported to Congress as much as he wants us to make LPTA awards (which we wouldn't have to report).

Do you agree or disagree with that? RSVP.

I say this because someone as thorough and logical as he is should/would have stated what he would do with the information reported to Congress, but he didn't do that in his testimony, and he didn't do that in his 1995 article. This was the reason for the half-serious "What Next?" question in my original post. I still honestly don't know what his next step would be (if the information were actually reported to Congress), but I?m not sure it?s a relevant question (and I wasn?t sure when I asked the first time either). I?m not being facetious, I?m honestly trying to figure out what he?s thinking.

At any rate, *if* you hop aboard this logic train, then I think you have to conclude that he is an advocate for a move to LPTA (and other cost-centric strategies), and away from best value. That is, I think he is hoping--first and foremost--to have this effect with his recommendation. And if I?m wrong and he truly is after the numbers, I go back to asking what good could come of knowing that it?s a really big number. Pragmatically speaking, you and I both know the number is not going to be exactly right, so he may as well just approximate the number (say, based on a sample of all contracts awarded), state for the record that it?s a really big number, and then continue with his argument (whatever that may be). But is this really his point? Deep down, I doubt it, but I really and honestly don?t know.

Anyway, here?s where I was going with my original post: If I?m right and he is an advocate of a move from best value to LPTA at all costs, then (to me) he?s generally opposed to the vast majority of R&D efforts and complex weapon system programs (which, earlier, you agreed do not lend themselves well to LPTA). I?m generalizing, but I think you get my point. And being in the military, that bothers me a bit, so that?s why I was miffed. We in the government don?t know everything about what?s going on at Boeing and Lockheed Martin, any more than the folks at Lockheed know everything that?s going on at Boeing (or vice-versa). Ergo, best value has a role (and an important one in my opinion).

Lastly, I understand your point about people being out of work and the government paying too much for goods and services , but as long as we?re investing defense funds in our own Congressional districts and not overseas, and we aren?t using too large a percentage of these funds to run the machine that is government procurement, then we are pouring that money into our economy and that?s not a bad thing. I?ve heard macro-economists summarize defense spending as the best jobs program imaginable because it has the residual effect of ?buying time? by producing weapons that provide for defense of that republic when times get tough and ?other countries have all the money.? Some would say this is where we are now, I don't know. At any rate, I think we both agree that when the costs associated with awarding federal contracts gets too high (because of things like contracting inefficiencies), then we?ve got a problem. And I think we both agree that we have that problem now (to one extent or another). And that?s why I said getting rid of duplicative vehicles is a problem that needs to be fixed. If we were to fix that problem, I think it would provide a huge ROI (in part by freeing up PCOs and buyers to be trained and/or to work on other efforts), which in turn would reduce the costs associated with awarding government contracts. By comparison, a switch from best value to LPTA (in all cases where LPTA arguably makes sense) would have a much smaller impact/ROI, in my opinion.

Okay, I?m done, Vern. You get the last word unless you need me to clarify or give a response on something pertaining to my post. As always, if you think replying to this post is worth the effort, please do so. For whatever it?s worth to you, I do value your opinion, so I hope to see a response.

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1) When was the last time you saw a Contracting Officer who, after evaluating the four factors at FAR 6.401(a), solicited sealed bids?

2) The Government requirements development process is totally broken and devoid of guidance, intellect, effort and consequences.

3) The subjectivity of these non-price related factors begs for cronyism and, just as Doke said, fraud. Past performance as an evaluation factor has turned into a travashamockery.

4) The complexity of the processes currently used to conduct acquisitions within the United States Government is not a good match for the cognitive abilities of the civilian and military personnel currently conducting the acquisitions. The answer must be better personnel, a simpler set of processes, or continued failure. The smart money is being placed on continued failure.

5) "Why should the Government pay a price premium for a contractor to perform more than satisfactorily? If the Government needs performance that is more than satisfactory, that must be because the Government has not properly defined what ?satisfactory? means in the specifications or statement of work." That is not a silly comment. That is an alert comment.

6) Cost Plus Award Fee contracts generally, and Cost Plus Award Fees with zero base fee in particular, though not discussed, are emblematic of this 'paying extra' problem. Before you know it the Government is paying extra in Award Fee because the contractor exceeded requirements by washing the FDO's car.

7) The notion that price could be permitted to play as low a weight as 10% in a Federal Procurement should trouble us more than it does.

8) The gentleman's discussion of the fraud afoot in the current system is exactly on point. "I personally believe we have had more reported fraud in government contracting in the last 10 years (including fraud by high level government officials) than the combined amount in the previous 40 years. I believe the deficiencies in our competition process have given such enormous discretion to contracting officials that, together with a lack of transparency, they have created an environment and circumstances that have contributed significantly to this increase in fraud." I believe him.

9) Part 11 needs a fresh look.

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PM63A4:

You wrote:

Vern-

I honestly think that Mr. Doke *is* advocating the use of LPTA/sealed bidding and *is* suggesting that best value is to be avoided at all costs. And I think you disagree with that, but I'm not sure.

Again, Mr. Doke says the most important thing we can right now to fix government procurement is to have the government report to Congress any and all cases in which the government pays a "premium" for a contractor to exceed a stated requirement. So, for the purposes of this discussion, he wants any best value awards in which the award isn't given to the lowest bidder (within the competitive range) to be reported to Congress.

Now, since Mr. Doke never says what Congress should do with the information, I think we are required to read between the lines. And when I do that in this case, I make assumptions and conclude that he is thinking that his recommendation will drive the behavior of government SSAs and decisionmakers away from best value and towards LPTA. Again, I'm reading between the lines, and I acknowledge that I can't authoritatively say what he's thinking. But my gut feel is he doesn't want the numbers reported to Congress as much as he wants us to make LPTA awards (which we wouldn't have to report).

Do you agree or disagree with that? RSVP.

I think that the best way to figure out what Mr. Doke wants is to quote Mr. Doke:

When a contract is awarded to a competitor whose price is higher than the price offered in an otherwise acceptable proposal, the difference between the lowest price and the contract award price is the price premium being paid for the other, non-price, evaluation factors. In other words, the price premium reflects how much more the Government is paying for evaluation factors such as additional years of experience, better reputation, more intrinsic value, etc. That price premium must be documented in the contract file, but there is no requirement, anywhere, that these price premiums be reported above the contracting officer level.

I respectfully submit to this Subcommittee that no more important service to government contracting could be provided, right now, than merely imposing a statutory requirement that price premiums paid for every contract be reported ?up-the-chain? to the Department level and aggregated at each level.

The President stated in a Memorandum of March 4, 2009, 74 Fed. Reg. 9755, that spending on government contracts has more than doubled since 2001, reaching over $500 billion in 2008. Merely adding ?sunlight? and transparency to the price premiums being paid would, I believe, have a significant impact in slowing additional growth.

He wants payments of price premiums to "be reported 'up-the-chain' to the Department level and aggregated at each level." He did not say that he wanted it reported to Congress. You infer that what he "really" wants is to have the information reported to Congress, and that might be a valid inference, but that's not what he said he wants. If he wanted what you think he wants, why wouldn't he have said it? He does not strike me as an allusive person.

Nor does he urge the use of LPTA or sealed bidding to the exclusion of "best value." In fact, he used the work "lowest" only once, in the quotation I supplied above. He did not use the word "low" or the term "lowest-price technically-acceptable" at all.

I think we have to take Mr. Doke's testimony at face value. He clearly distrusts Government personnel to make wise use of the discretion they have in a "best value" source selection. He wants disclosure to higher management within the Executive Branch whenever a decision is made to pay a price premium, as he defined it in the quote above. He clearly believes that this would make SSA's and other agency officials think twice about a decision to pay a premium. I find that recommendation to be sound and not especially burdensome. As I said in an earlier post, Mr. Doke does not go as far as I would, but I know the workforce better than he does.

You asked me if I agree with the following: "[M]y gut feel is he doesn't want the numbers reported to Congress as much as he wants us to make LPTA awards (which we wouldn't have to report). Do you agree or disagree with that?" I don't agree because I simply don't know if that's true. Given the general thrust of his remarks I believe that he would be happy to see more sealed bidding and LPTA and less "best value" -- so would I -- but I don't believe that he wants agencies to use sealed bidding and LPTA to the total exclusion of "best value" -- nor do I. The "best value" approach is permitted by law, and he does not call for a change in the law.

In your long conclusion you said:

If I?m right and he is an advocate of a move from best value to LPTA at all costs, then (to me) he?s generally opposed to the vast majority of R&D efforts and complex weapon system programs (which, earlier, you agreed do not lend themselves well to LPTA). I?m generalizing, but I think you get my point. And being in the military, that bothers me a bit, so that?s why I was miffed. We in the government don?t know everything about what?s going on at Boeing and Lockheed Martin, any more than the folks at Lockheed know everything that?s going on at Boeing (or vice-versa). Ergo, best value has a role (and an important one in my opinion).
Emphasis added.

I think that if you take a second look at that statement you will agree with me that you went much too far. If I thought that Mr. Doke opposed the "the vast majority of R&D efforts and complex weapon system programs" I would not take him seriously, but I know him to be a serious man, and I take him very seriously and agree with much (but not all) of what he said. In any case, given that I would go much farther than Mr. Doke in curbing the use of "best value," then you must think that I am opposed to "the vast majority of R&D and complex weapon system programs." Do you think that?

There are clearly valid uses of the tradeoff approach to source selection ("best value"). I don't think they include buying janitorial services and such-like. But having said that, one might ponder whether "best value" has worked all that well for for weapon system buys, given the problems we've had with those. (The literature on weapons acquisition is replete with embarrassing examples.) Maybe the problem is not the method, but the people using it, like the people who conducted the tanker source selection.

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Vern-

Thanks again for the reply.

I'll admit there was a bit of "conspiracy theory" embedded in my posts and that I may have gone too far. Let me try to put my posts into context. Shortly after President Obama entered office, he himself mentioned curtailing the use of cost-plus and T&M contracts, and to me, Mr. Doke?s testimony was a variation on this theme. So you?re right, I inferred a lot from what he wrote/said.

I think we can all agree that best value approaches (and C-P and T&M type contracts) are overused--your "janitorial services" remark is, sadly, spot-on in some cases. And you know Mr. Doke and I don?t, so I hope you're right, and Mr. Doke is not indirectly suggesting that R&D and large weapons systems efforts need more oversight/reporting requirements and/or?more importantly?that these types of programs should be more susceptible to cuts simply because of their nature (i.e., the solicitation approach or, for the President, the contract type chosen/required).

I guess my fear is that, collectively, this mindset this could evolve into ?open season? on any efforts in which the government pays a premium or has any cost risk whatsoever. I honestly don?t know that you have such a fear and/or agree with such a mindset, but I do think trying to curtail best value and T&M and C-P vehicles by requiring reporting on these would not have any positive effect (especially on R&D efforts and other complex efforts/programs that, at least in my experience, exhibit the tendency to ?pay premiums? to get certain very difficult/specialized work accomplished by a company that is more costly but also assessed to be much more qualified). I would submit that most of these efforts are important and are worth the cost, that they don?t need additional oversight/reporting, and that such reporting could very well cause more harm than good to our country and our economy. Cutting programs generally means cutting jobs, and I think there's a connection here. (On a side note, your point that the assessment I mention above is too often being done by people not qualified to do it is fair, but this is not the primary focus of my comments.)

At any rate, while I?m still not *certain* what Mr. Doke was suggesting in his testimony, I?m assuming (rightly or wrongly) that he would not disagree that he is suggesting 1) that more reporting is a good thing, and (here?s where I?m putting words into his mouth?) 2) if programs get cut because of such reporting (whether arguably justified or not), so be it. I?m convinced you think that 2) above is not a fair conclusion based strictly on what he said, and you?re right. But if you consider what he said, and then make some (what I think are) reasonable assumptions about how this might play out (which Mr. Doke obviously knows), I think you can see how certain programs/efforts would certainly not be helped by such a law (and could very well be harmed). So I think there is a risk of ?collateral damage? when you lump all ?pay a premium? solicitations together and require additional reporting for these. By comparison, I think doing away with duplicative contracts will save more resources, solve more problems, and would have no (or very little) ?collateral damage.?

And again, as long as these funds are stimulating the economy here at home and aren?t being eaten to any great extent by the overhead associated with awarding federal contracts, I say it?s not a bad thing economically. I think our near-term focus should be on making sure the overhead associated with awarding federal contracts isn?t too high, so I think the focus should, first and foremost, be on eliminating duplication of effort. I think this is a workable problem right now and that it would have a significant ROI. On the other hand, I think Mr. Doke?s approach is more along the lines of saving resources by not paying a premium (which is fine in some but not all cases, ?Minimum Needs Doctrine? be damned?) AND by perhaps cutting programs/efforts (which he doesn?t say but I infer, and with which I respectfully disagree). Perhaps my second concern is imagined, but I have absolutely no concerns about cutting the number of duplicative contracts, and again, I?m confident that reducing the number of such contracts would have a positive effect on federal procurement.

Okay, I'm really finished this time. Thanks again for your views. BTW, were you goofing off on your ranch when they called these folks to testify? Sorry, couldn?t resist?.

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PM63A4:

The objection to paying premium prices is not about eliminating programs. That's way over the top.

In any case, I just read the Air Force's now notorious tanker RFP and guess what? The source selection is lowest-price technically acceptable! "Best value" considerations would come into play only in the event that prices are within one percent of each other. The following is from Section M, page 1 of 17:

In accordance with FAR 15.304(e), all evaluation factors other than cost or price, when combined, are approximately equal to cost or price.

* * *

1.1.1 The Government will evaluate the Mission Capabilities Factor (Factor 1) to determine technical acceptability. The Mission Capability subfactors (Key Systems Requirements, Systems Engineering, Product Support, Program Management, Technology Maturity, and Past Performance) will not be weighted and each subfactor will be evaluated as acceptable or unacceptable. Any subfactor that is evaluated as unacceptable will render the entire proposal unacceptable and ineligible for award.

1.1.2 The Government will evaluate the 93 non-mandatory technical requirements (Factor 3). Each of these requirements will be evaluated as having been met or not met. For those non-mandatory requirements proposed by the offeror which are deemed to have been met, a point value for that requirement will be awarded as described in paragraph 2.4.2 below. The Government will calculate a total point score for Factor 2 by adding together all points awarded for each non-mandatory requirement that the offeror fully meets, except as otherwise indicated.

1.1.3 The Government will evaluate each offeror's Total Proposed Price (TPP) in accordance with Section M, paragraphs 2.3.1, 2.3.1.1, 2.3.2.2, and 2.3.2.3. The Government will evaluate Total Proposed Price in discounted present value dollars, defined as TPP (PV), Integrated Fleet Aerial Refueling Assessment (IFARA), Fuel Usage Rate Assessment (FURA), and Military Construction (MILCON) in accordance with Section M, paragraphs 2.3.2, 2.3.2.1, 2.3.2.2, and 2.3.2.3. The Government will calculate a present value total evaluated price (TEP) [Factor 3] for each acceptable offeror by applying their IFARA, FURA, and MILCON adjustments to their respective TPP (PV).

1.1.4 The Government will then compare the resulting TEPs for all acceptable proposals to determine the lowest TEP. If there are no acceptable proposals with a TEP [total evaluated price] that is less than or equal to 101% of the lowest acceptable proposal TEP, the Government will award a contract to that acceptable offeror with the lowest TEP without consideration of the Factor 3 score.

1.1.5 If one or more acceptable proposals have a TEP that is less than or equal to 101% of the lowest acceptable proposal TEP, the Government will then compare the scores obtained in the Factor 3 evaluation for only these proposals, according to the criteria in paragraph 2.4.4.

Emphasis added. So Factor 3 is a price tie-breaker. The Air Force calls this approach "best value," but they clearly mean best value as defined in FAR 2.101, and not as synonymous with the tradeoff approach described in FAR 15.101-1. So, it looks like the Air Force doesn't share your fears about LPTA, and they've done a few major system acquisitions. The RFP was reviewed and approved by DOD.

One other thing: I don't agree with Mr. Doke's assertion of a minimum needs rule. He's wrong about that. There is no rule that the Government can buy only its minimum needs. However, I do share his concerns about the tradeoff process and price premiums.

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This have been one of the better threads to read for somone who considers himself to still be learning this profession well after earning the Level III certification and a graduate degree.

One thing that stood out in this discussion over the last several weeks on the knowledge and abilities of contracting and other acquisition personnel is that the target is moving. I have been at my current command for less than a year, but in that time the contracting process has changed several times and the Policy Division has issued new directives every week since the first of February. Legal and senior managers have instituted a rigid peer review process, and Agency level requirements change with every package sent to them from single documents to complete solicitation and contract award packages.

How can we become proficient, knowledgable and competent when the definition of that quality changes so rapidly? Even when we are up to date on the FAR, DFARS and AFARS, the guidance we are getting is often based on political decisions, old information, or in some cases policy, legal and senior executives who are more ignorant regarding the acquisition process than those producing the work.

Personally, I have seen the Best Value process abused. I believe that unless someone has a definitive way of determining what constitutes BV, they should use LPTA methods to award contracts. But, as Joel said, there is resistance to that in the Army, and it is easier to get approvals for BV than LPTA as of right now. Which to me reflects the standard "But that is how we have always done it" disease.

My biggest fear about this problem is that it will not get any better before I retire, which would be a sad thing to see.

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This have been one of the better threads to read for somone who considers himself to still be learning this profession well after earning the Level III certification and a graduate degree.

One thing that stood out in this discussion over the last several weeks on the knowledge and abilities of contracting and other acquisition personnel is that the target is moving. I have been at my current command for less than a year, but in that time the contracting process has changed several times and the Policy Division has issued new directives every week since the first of February. Legal and senior managers have instituted a rigid peer review process, and Agency level requirements change with every package sent to them from single documents to complete solicitation and contract award packages.

How can we become proficient, knowledgable and competent when the definition of that quality changes so rapidly? Even when we are up to date on the FAR, DFARS and AFARS, the guidance we are getting is often based on political decisions, old information, or in some cases policy, legal and senior executives who are more ignorant regarding the acquisition process than those producing the work.

Personally, I have seen the Best Value process abused. I believe that unless someone has a definitive way of determining what constitutes BV, they should use LPTA methods to award contracts. But, as Joel said, there is resistance to that in the Army, and it is easier to get approvals for BV than LPTA as of right now. Which to me reflects the standard "But that is how we have always done it" disease.

My biggest fear about this problem is that it will not get any better before I retire, which would be a sad thing to see.

Technically, both the "trade-off process" (FAR 15.101-1) and the "lowest price technically acceptable" process (15.101-2) are considered to be "Best Value" under the "Best Value Continuum" in FAR 15.101. They include both technical quality and price as selection criteria, as opposed to price only or to technical quality only. I remember that they were combined under "Best Value" processes in the "FAR 15 Rewrite" back in 1996. Prior to that, only the trade-off process was covered in the Part 15 "best value" paragraphs. LPTA was discussed separately.

The design-build industry broadly defines acquisition processes (involving proposals vs. bids) that include both quality and price selection criteria as "best value" and processes that only consider qualifications as "Qualifications Based Selection".

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Vern,

I'm a bit confused about your comment "There is no rule that the Government can buy only its minimum needs."

The excerpt below is from the Guide to Specification Writing For U.S. Government Engineers by John Oriel, NAVAIR TSD:

The specifier's authority

"Here we have a civics lesson that deals with a topic fundamental to all modern forms of government: limitations on the authority of officials. It summarizes the essential difference between writing specifications for public contracts and writing them for private-sector work. Public policies imposing limitations on the authority of officials were developed in order to prevent the kinds of corruption that prevailed under the feudal system. Abiding by those policies is among the most fundamental of our responsibilities as government workers.

As you probably know, the actual authority to obligate the Government contractually is held only by contracting officers, and the actions of those officers are very tightly constrained by extensive regulations. The work we do as acquisition engineers is actually in support of those contracting officers. We attend to the complex technical details while they take care of the complex legal and administrative details. By being delegated such responsibility, we also make a lot of decisions that affect the scope of the work to be done by contractors and the duties that must be performed by the Government.

Along with this bit of delegated authority come the necessary limitations. For example, government engineers have authority to specify only minimum, essential, validated requirements. Such requirements should always be traceable to higher-level documentation, and should always be defensible in concrete terms of need. That means you can't specify a performance or design feature just because you think it's nice to have or is the latest and greatest thing to come from the vendors."

I always assumed the above quote was correct, although I can not find any reference to the "minimum needs doctrine" as such. When I also consider "The Necessary Expense Doctrine" of appropriation law, I conclude the quote is correct. Isn't this very similiar to the "minimum needs doctrine" mentioned in the Doke testimony? So if the government has the authority to specify only minimum, essential, validated requirements, what gives it the authority to buy (or pay a premium for) more?

Just trying to understand? Thanks!

TAP

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PM63A4:

The objection to paying premium prices is not about eliminating programs. That's way over the top.

In any case, I just read the Air Force's now notorious tanker RFP and guess what? The source selection is lowest-price technically acceptable! "Best value" considerations would come into play only in the event that prices are within one percent of each other. The following is from Section M, page 1 of 17: etc.

Thanks for finding and sharing the evaluation criteria, Vern.

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TAP:

First, let's deal with the "necessary expense doctrine." because it does not say what you seem to think that it does. Here it is as explicated by the GAO in Principles of Federal Appropriations Law, Vol. 1, Ch. 4:

The necessary expense rule is really a combination of two slightly different but closely related concepts:

1. An appropriation made for a specific object is available for expenses necessarily incident to accomplishing that object unless prohibited by law or otherwise provided for. For example, an appropriation to erect a monument at the birthplace of George Washington could be used to construct an iron fence around the monument where administratively deemed necessary to protect the monument. 2 Comp. Dec. 492 (1896). Likewise, an appropriation to purchase bison for consumption covers the slaughtering and processing of the bison as well as the actual purchase. B-288658, Nov. 30, 2001.

2. Appropriations, even for broad categories such as salaries, frequently use the term ?necessary expenses.? As used in this context, the term refers to ?current or running expenses of a miscellaneous character arising out of and directly related to the agency?s work.? 38 Comp. Gen. 758, 762 (1959); 4 Comp. Gen. 1063, 1065 (1925).

The GAO has established a three-part test for the necessary expense doctrine:

When applying the necessary expense rule, an expenditure can be justified after meeting a three-part test:

1. The expenditure must bear a logical relationship to the appropriation sought to be charged. In other words, it must make a direct contribution to carrying out either a specific appropriation or an authorized agency function for which more general appropriations are available.

2. The expenditure must not be prohibited by law.

3. The expenditure must not be otherwise provided for, that is, it must not be an item that falls within the scope of some other appropriation or statutory funding scheme.

E.g., 63 Comp. Gen. 422, 427?28 (1984); B-240365.2, Mar. 14, 1996; B-230304, Mar. 18, 1988.

Nothing in that test prohibits the Government from buying more than its strict minimum need.

As for the NAVAIR text that you cite, I think this is the pertinent passage:

[G]overnment engineers have authority to specify only minimum, essential, validated requirements. Such requirements should always be traceable to higher-level documentation, and should always be defensible in concrete terms of need. That means you can't specify a performance or design feature just because you think it's nice to have or is the latest and greatest thing to come from the vendors.

Note that the author is vague. What does minimum need mean? What does "nice to have" mean? Would a rifle that is more accurate than the one specified be nice to have because it would do a better job of killing? Well, if you want a rifle to kill, I think the answer is yes. So would it be fair to say that you need it in order to kill more effectively? Would there be any objection to buying it if it didn't cost more, or if it meant that we could save money by buying less ammo?

We must make a distinction between specifying minimum need and buying minimum need. The author of the NAVAIR publication does not say that the Government cannot buy more than its minimum need, he says that the Government cannot specify more than its minimum need. The term "minimum need" appears at seven places in FAR: 6.302-1; 8.405-6; 11.103; 11.105; 17.105-1; and 34.001. (It appears in eight other places in agency FAR supplements.) In none of those places does the FAR say that the Government cannot buy more than its minimum need. If it did, then the only kind of procurements we could do would be sealed bidding and lowest-price technically-acceptable. But FAR expressly authorizes the use of the tradeoff procedure, through which the Government can pay more to get more if the more is useful in proportion to any price premium. FAR does not even say that the Government cannot specify more than its minimum need. What it does say is that it must specify its requirements in ways that promote full and open competition. The GAO has interpreted that to mean that it cannot specify its requires in ways that are "unduly restrictive" of competition.

The GAO has explained its unduly restrictive rule as follows:

A contracting agency has the discretion to determine its needs and the best method to accommodate them. Parcel 47C LLC, B?286324, B?286324.2, Dec. 26, 2000, 2001 CPD para. 44 at 7. In preparing a solicitation, a contracting agency is required to specify its needs in a manner designed to achieve full and open competition, and may include restrictive requirements only to the extent they are necessary to satisfy the agency's legitimate needs. 10 U.S.C. sect. 2305(a)(1) (2006); Innovative Refrigeration Concepts, B?272370, Sept. 30, 1996, 96?2 CPD para. 127 at 3. Where a protester challenges a specification as unduly restrictive, the procuring agency has the responsibility of establishing that the specification is reasonably necessary to meet its needs. The adequacy of the agency's justification is ascertained through examining whether the agency's explanation is reasonable, that is, whether the explanation can withstand logical scrutiny. Chadwick?Helmuth Co., Inc., B?279621.2, Aug. 17, 1998, 98?2 CPD para. 44 at 3. A protester's mere disagreement with the agency's judgment concerning the agency's needs and how to accommodate them does not show that the agency's judgment is unreasonable. Dynamic Access Sys., B?295356, Feb. 8, 2005, 2005 CPD para. 34 at 4. Where, as here, a requirement relates to national defense or human safety, an agency has the discretion to define solicitation requirements to achieve not just reasonable results, but the highest possible reliability and/or effectiveness. Vertol Sys. Co., Inc., B?293644.6 et al. , July 29, 2004, 2004 CPD para. 146 at 3.

When the GAO speaks of minimum need, it does so in the context of the effect on competition. The Government cannot specify more than it minimally needs if to do so would unduly restrict competition. But that having been said, if an agency receives an offer for more than that, and if the more is useful and proportionate in value to the price premium, no law or doctrine prohibits the Government from buying it, as long as the buy is consistent with the terms of the RFP. If that were not the case, the Government could not award a contract to an offeror with excellent past performance at a higher price than an offeror with satisfactory past performance.

Make sense?

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Vern,

Yes, that makes perfect sense. Regarding a contracting agency?s discretion to determine its needs and include restrictive requirements ?only to the extent they are necessary to satisfy the agency's legitimate needs.? The legitimate needs should be established in the agency's actual program requirements. Using the rifle example, sure there would be no objection to buying a more efficient rifle. But if one contractor proposed providing storage cases which were not ?necessary? to satisfy the agency's legitimate needs, then they should not pay a premium for the cases. If they needed the cases they should have asked for them. Going along with your previous post on this subject, I believe source selection trade-off procedure is often misused. The connection I was trying to make was that if either the RFP requirements or contractor?s proposed solution exceed the minimum, essential, validated requirements of the program for which an agency is contracting for, then any premium paid may or may not be a necessary expense? The ?discretion? to determine its needs may have already been exercised by the agency when it established its overall policy documents for carrying out its mission. The specifier needs to follow those policy documents and not add requirements just because they think they?re a good idea.

Thanks for the lesson!

TAP

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Vern,

Yes, that makes perfect sense. Regarding a contracting agency?s discretion to determine its needs and include restrictive requirements ?only to the extent they are necessary to satisfy the agency's legitimate needs.? The legitimate needs should be established in the agency's actual program requirements. Using the rifle example, sure there would be no objection to buying a more efficient rifle. But if one contractor proposed providing storage cases which were not ?necessary? to satisfy the agency's legitimate needs, then they should not pay a premium for the cases. If they needed the cases they should have asked for them. Going along with your previous post on this subject, I believe source selection trade-off procedure is often misused. The connection I was trying to make was that if either the RFP requirements or contractor?s proposed solution exceed the minimum, essential, validated requirements of the program for which an agency is contracting for, then any premium paid may or may not be a necessary expense? The ?discretion? to determine its needs may have already been exercised by the agency when it established its overall policy documents for carrying out its mission. The specifier needs to follow those policy documents and not add requirements just because they think they?re a good idea.

Thanks for the lesson!

TAP

Good.

Just a point. You said: "The specifier needs to follow those policy documents and not add requirements just because they think they?re a good idea." Specifiers commonly have considerable discretion in that regard. The extent of that discretion is a matter of agency policy and practice. Except at the highest levels, e.g., major weapons, specification is often very informal and writers can add "good ideas."

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Tip of the hat to federalcontracts. 8 EXCELLENT points. I'm wavering on #5.

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THE ONE THING THAT I WOULD FIX TO IMPROVE GOVERNMENT CONTRACTING.

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Why does the Government Accountability Office hate accountability ?

In every competition, every unsuccessful bidder, and especially every unsuccessful bidder in the competitive range, ought to be told who won, at what price, and why the winner was determined to be the best value.

A Contractor who thinks that they are an injured party is in the best position to hold contracting officials to the rules. GAO has even said that the protest function allows such injured parties to act as ?private Attorneys General? on behalf of the Government, greatly increasing the capacity of GAO to ensure accountability.

But then GAO says no to making this sort of accountability MANDATORY, as if accountability doesn?t affect the outcome.

Specifically,

?
We dismiss the protest because an agency?s failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award
.?

Gary Kepplinger, May 2, 2008.

The protestor didn?t protest the scheduling. This member of the competitive range protested the fact that the agency refused any debriefing, even refusing to say who won or at what price. The value with options was over $100 M. It was never announced as required by FAR 5.303(a).

It ain?t just the 1102 workforce that?s deficient in job knowledge, a point someone here is trying to make. Just because someone graduated from law school and got a job at GAO doesn?t mean they understand the basics of contracting, with apologies to the blogmaster.

More often than not, even after repeated follow-ups, I am not told the results of competitions I bid on, most of which are less than $200 K. I am often told to look for the results to be posted at FBO, but awards typically are not posted. If posted at a site like asfi, I have no way to find notices after they are removed from the database of active solicitations, which is usually before the award is made.

Fixing this one thing ? requiring unsuccessful bidders be told why someone else won, who won, and at what price, would open the door to more protests, which is how, for better or worse, this system heals itself.

.

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More often than not, even after repeated follow-ups, I am not told the results of competitions I bid on, most of which are less than $200 K. I am often told to look for the results to be posted at FBO, but awards typically are not posted. If posted at a site like asfi, I have no way to find notices after they are removed from the database of active solicitations, which is usually before the award is made.

Fixing this one thing ? requiring unsuccessful bidders be told why someone else won, who won, and at what price, would open the door to more protests, which is how, for better or worse, this system heals itself.

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Brian,

Have you read FAR 15.503(B)?

"(B)Postaward notices. (1) Within 3 days after the date of contract award, the contracting officer shall provide written notification to each offeror whose proposal was in the competitive range but was not selected for award (10 U.S.C. 2305(B)(5) and 41 U.S.C. 253b©) or had not been previously notified under paragraph (a) of this section. The notice shall include?

(i) The number of offerors solicited;

(ii) The number of proposals received;

(iii) The name and address of each offeror receiving an award;

(iv) The items, quantities, and any stated unit prices of each award. If the number of items or other factors makes listing any stated unit prices impracticable at that time, only the total contract price need be furnished in the notice. However, the items, quantities, and any stated unit prices of each award shall be made publicly available, upon request; and

(v) In general terms, the reason(s) the offeror?s proposal was not accepted, unless the price information in paragraph (B)(1)(iv) of this section readily reveals the reason. In no event shall an offeror?s cost breakdown, profit, overhead rates, trade secrets, manufacturing processes and techniques, or other confidential business information be disclosed to any other offeror.

(2) Upon request, the contracting officer shall furnish the information described in paragraph (B)(1) of this section to unsuccessful offerors in solicitations using simplified acquisition procedures in Part 13.

(3) Upon request, the contracting officer shall provide the information in paragraph (B)(1) of this section to unsuccessful offerors that received a preaward notice of exclusion from the competitive range."

Note that this says "shall." Any contracting officer not providing this basic information to unsuccessful offerors is not doing his/her duty, and is doing a great dis-service to industry and the entire acquisition community.

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Brian,

Where did you get this quote from? Is it from an offical GAO dismissal or someplace else? Knowing some of the specifics helps make more sesne out of it.

?We dismiss the protest because an agency?s failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award.?

Gary Kepplinger, May 2, 2008.

The protestor didn?t protest the scheduling. This member of the competitive range protested the fact that the agency refused any debriefing, even refusing to say who won or at what price. The value with options was over $100 M. It was never announced as required by FAR 5.303(a).

It ain?t just the 1102 workforce that?s deficient in job knowledge, a point someone here is trying to make. Just because someone graduated from law school and got a job at GAO doesn?t mean they understand the basics of contracting, with apologies to the blogmaster.

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See Barnesville Development Corp., B-400049, June 30, 2008, 2008 CPD ? 132 at 4:

The protester also complains that the agency failed to furnish it with a debriefing. An agency's failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award. The Ideal Solution, LLC, B?298300, July 10, 2006, 2006 CPD ? 101 at 3 n.2; Canadian Commercial Corp., B?222515, July 16, 1986, 86?2 CPD ? 73 at 5.

He got the quote from The Ideal Solution decision, signed by Gary Kleppinger, who was the GAO general counsel at the time.

It helps in all professional communications to know how to properly cite a GAO, board, or court decision so that others can find it.

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?
We dismiss the protest because an agency?s failure to provide a debriefing is not a matter that we will consider. This is because the scheduling of a debriefing is a procedural matter that does not involve the validity of an award
.?

Gary Kepplinger, May 2, 2008.

The protestor didn?t protest the scheduling. This member of the competitive range protested the fact that the agency refused any debriefing, even refusing to say who won or at what price. The value with options was over $100 M. It was never announced as required by FAR 5.303(a).

It ain?t just the 1102 workforce that?s deficient in job knowledge, a point someone here is trying to make. Just because someone graduated from law school and got a job at GAO doesn?t mean they understand the basics of contracting, with apologies to the blogmaster.

Brian,

So why do you feel the GAO position is wrong? To me it's pretty clear. GAO entertains protests on the award of contracts. A debriefing is a procedural process where offerors can obtain information. Now an offeror may or will use that information as a basis of their protest but failure to give a debriefing in a timely manner is not the basis to claim an award is invalid.

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Navy Contracting,

I am familiar with the regulatory requirement for a debriefing, and when I don?t get one, I remind CO?s of that requirement. Nevertheless, I often don?t get one.

I agree that any contracting officer not providing this basic information to unsuccessful offerors is not doing his/her duty, and is doing a great disservice to industry and the entire acquisition community.

But my recourse is to file with the US Court of Federal Claims, since GAO won?t hear a protest of this failure to debrief.

Former Fed,

That came from an unpublished Decision on a GAO protest I filed, citing the same case Vern cites.

Vern,

Your pithy comment at NYT on PowerPoint was right on.

I didn?t provide a cite because I didn?t want to have people trace it back to me. I figure that folks on this Blog are so resourceful that they can even find unpublished GAO Decisions.

Former Fed,

Unfortunately, I think that the GAO position is correct, as their authority is now written. In my Apr 25 2010, 01:15 AM post I meant that I would like it if GAO was given the additional authority to consider this type of complaint. I think it would improve the integrity of the procurement system.

.

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