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Here are two provisions of law to get rid of as soon as possible, for the sake of the country


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Sure, why not? Now that that we are approaching $6 trillion in pandemic supplements within a year, the lid is off and anything goes. 

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6 minutes ago, Don Mansfield said:

How about requiring justifications and approvals before conducting full and open competition?

Why ?

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45 minutes ago, Don Mansfield said:

Why should full and open competition be the default? Shouldn't the decision be justified? 

Isn’t that somewhat contradictory to the logic of not requiring D&Fs when the rational is self-evident?

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1 hour ago, Don Mansfield said:

How about requiring justifications and approvals before conducting full and open competition?

This sounds like a step toward the pre-CICA days when there were 14 exceptions to the use of sealed bidding (formal advertising) for DoD, some of which, such as a sole source or the use of a cost reimbursement contract, required a D&F.  

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45 minutes ago, Don Mansfield said:

If there were no CICA, why would the justification for full and open competition be self-evident? 

A big part of reform is simplifying things.  That includes eliminating unnecessary documentation.  If the rule is full and open competition, no need for justification unless you are taking an exception.  If someone is restricting competition, CICA or otherwise, the rational needs explained.  Contracting people aren’t good about explaining in file documentation why certain actions are taken. Thus the reason for forms like JOAFC and D&Fs. 

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5 hours ago, Retreadfed said:

Vern, would you replace them with some other statute or just let the statutory field be wide open?

@RetreadfedYes, I would replace them with some other statute.

I want to get rid of the requirement for full and open competition (F&OC), which requires that all responsible offerors be permitted to compete. I also want to get rid of the requirement for a competitive range and discussions and final proposal revisions from all offerors within that range. I want the government to be able to quickly choose a prospective contractor based on its qualifications and then negotiate a contract one-on-one, as it does for architect-engineer services. I do not believe that "best value" tradeoff competition based on essay-test proposals produces better contracts and prices than can be had through one-on-one negotiations.

I think that F&OC and the process folderol that goes with it is wasteful and inefficient. I think that the protest system case law that has arisen from that process has yielded nothing but delay and needless bureaucracy. I think that there is no evidence that F&OC produces better value than a less expansive requirement for competition.

F&OC cannot be justified on business grounds; it can only be justified on political grounds. Given that modern government is contracted out, and given the challenges that confront it, I do not think we can continue to afford such a wasteful and inefficient policy.

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@Vern Edwards Excellent ideas.  Decisions like this on competition and what’s best for the government should be entrusted to Contracting Officers with input from program managers and legal advisors.  Another thing,  when discussions are held in a competitive environment, common sense rules should prevail to obtain the best deal for the government and not the arcane procedures we have now.

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31 minutes ago, formerfed said:

Another thing,  when discussions are held in a competitive environment, common sense rules should prevail to obtain the best deal for the government and not the arcane procedures we have now.

formerfed, can you please elaborate on the above point?

What are some common sense rules that you advocate to prevail?

What arcane procedures would you eliminate?

Thanks. 

“DICTIONARY Definitions from Oxford Language Dictionary
ar·cane
/ärˈkān/
adjective
  1. understood by few; mysterious or secret.
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2 hours ago, formerfed said:

If the rule is full and open competition, no need for justification unless you are taking an exception

Right, but Vern is proposing throwing out that rule. I'm adding to that by saying that there would have to be a J&A to conduct full and open competition. Nobody would ever write a J&A again. 

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40 minutes ago, joel hoffman said:

formerfed, can you please elaborate on the above point?

What are some common sense rules that you advocate to prevail?

What arcane procedures would you eliminate?

Thanks. 

“DICTIONARY Definitions from Oxford Language Dictionary
ar·cane
/ärˈkān/
adjective
  1. understood by few; mysterious or secret.

Joel,  negotiate to obtain the most favorable deal you can.  The current rules on things like communicating weaknesses in total, establishing a competitive range, and having a common cutoff date for concluding discussions don’t make sound business sense.  
 

Take a look at this first decision as an example http://wifcon.com/pd15306d3.htm

 

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2 hours ago, formerfed said:

Joel,  negotiate to obtain the most favorable deal you can.  The current rules on things like communicating weaknesses in total, establishing a competitive range, and having a common cutoff date for concluding discussions don’t make sound business sense.  

 

Thanks, formerfed. How would you negotiate the best deal in a competitive environment? 

Or are you saying to negotiate the most favorable deal in other than a competitive environment and skip dealing with multiple firms?

Skipping telling multiple firms what their weaknesses and other undesirable or less than favorable features are (bargaining for better performance) and skipping concluding discussions and asking for revised offers seems to imply skipping competition. If not, what competitive procedures would you suggest? 

Just still not understanding your points.

I've conducted lots of source selections - most were for construction and design-build contracts with several installation and facility O&M service contracts. I have conducted a lot of discussions and negotiated numerous sole source contracts, changes, REA’s, claims and other mod types.

I’m just curious how you would recommend source selections and negotiations be conducted.  
Thanks. 

I think that the 1997 FAR Part 15 rewrite was a significant improvement.  It allowed and emphasized bargaining for better performance in competitive environment, even when a proposal meets the minimum requirements. The problem is that a great many KO’s have no idea what that is. I think that ignorance is based upon legacy discussion procedures and pre-conceptions that were handed down to them. I’ve had several KO’s tell me even within the past five years that “we can’t discuss less then desirable features if they meet the minimum requirements”!!!  Several entire USACE Districts were operating under such misconceptions.

Much of that is based upon the old FAR 15 emphasis on what one shouldn’t or couldn’t discuss. For example,  the prohibitions against “technical leveling”, which were misunderstood and taken to extremes, were eliminated back in 1997. I’ve had KO’s tell me that  this is still prohibited, so we can’t ask for improved features or better design solutions - that we must take what they offer and improve later through the change process, if funds are later available. Nonsense! 

I have little confidence that many in the federal contracting community are now or would be effective negotiators, able to “negotiate the most favorable deal for the government”, especially for technically complex acquisitions and particularly if they would have to deal with a single firm in a non-competitive environment, such as a qualifications based selection, then negotiate the price.

A/E contract negotiations, as an example, don’t provide “the most favorable deal” for the government, certainly in terms of pricing.

My opinion is based upon personal experience, observations, feedback from my D-B class students over 21 years, as well as the overall WIFCON Forum context over the years.  

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16 hours ago, Don Mansfield said:

Why should full and open competition be the default? Shouldn't the decision be justified? 

Don, If you are saying that the government isn’t qualified to conduct competitive acquisitions, who is going to negotiate the “most favorable deal you can [get]” for the multitude of contracts each year? What are their qualifications to do this?

Competitive acquisitions have been conducted across the US for decades, probably for centuries. The States, municipalities and other public institutions do it. It seems to be a transparent and accountable process to promote honesty and the public’s trust in public contracting.

”No-bid contracts” (anything other than public bid openings) are routinely criticized in the media, news and social discussion platforms. Typical perceptions expressed are such as  dishonest, underhanded, under the table, wasteful, special interests, favoritism kickback arrangements, etc., regardless of whether or not they are.

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1 hour ago, joel hoffman said:

Don, If you are saying that the government isn’t qualified to conduct competitive acquisitions, who is going to negotiate the “most favorable deal you can” for the multitude of contracts each year? What are their qualifications to do this?

I'm not saying that. I'm questioning why full and open competition should be the rule. Because tradition?

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7 hours ago, Don Mansfield said:

I'm not saying that. I'm questioning why full and open competition should be the rule. Because tradition?

Because it is public policy, other than exceptions for set-asides or sole source awards for special classes of the general business community. Have you asked your question to any member of Congress ? Do you think that they favor restricting competition on an equal or favored basis in comparison to allowing their constituents opportunities for the government’s business? Have you been responsible to investigate and answer congressional complaints of favoritism, discriminatory requirements or other barriers to constituents’ chances to compete for government business? 

I’ll also answer your question with another question.  If the government can’t seem to be able to get the best deal with free and open competition, do you think that using other than free and open competition will result in more favorable deals?

Expressions like “get the most favorable deal you can get” are somewhat meaningless . Anyone can negotiate “the most favorable deal that (they) can get”.  I had a couple of Area Offices document every record of negotiation with statements to the effect that “the final settlement is the most favorable deal that we can get”.   How good is that deal?

Is “the best deal that you can get” measurable -quantifiable or comparable with (what)?

Of course, everyone is entitled to their opinion. Until “public policy” changes, I think these are all academic or personal opinion debates anyway.

Since Congress has gone wild in their recent spending habits, I suppose that anything could happen. There is no accountability for current  spending habits or its fiscal consequences.

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This is from the Patent and Trademark Office.  It’s an alternative to full and open competition where the CO and program office decide on participants based on personal knowledge of the marketplace

Quote

6.1.1 Alternative Competition Method

a. After conducting market research, the CO and Contracting Officer's Representative (COR) will use their technical expertise and understanding of the marketplace to determine which vendor(s) is/are the most likely to successfully meet the agency's needs and are thereby eligible to participate in an alternative competition.

 

 

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9 hours ago, joel hoffman said:

I have little confidence that many in the federal contracting community are now or would be effective negotiators

I just wonder in whose eyes.  My optimistic view is that most go through life effectively negotiating all kinds of stuff in their personal lives, yet there is no confidence that those same after requiring thousands of hours can not do it for the federal government if given the opportunity to do so via a more common sense approach.

My concern is how much would stuff like this increase?  https://www.justice.gov/usao-edwa/pr/clarkston-business-owner-and-federal-government-contracting-officer-indicted-bribery

13 hours ago, Vern Edwards said:

as it does for architect-engineer services.

Yes! I will probably get chastised for suggesting another pilot program ( and noting former's post just now) why not give the opportunity and authority to try it like USPTO  with hopes that it would lead to permanent change. 

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Carl, do you know why A/E contracts  use QBS selection with negotiation of a “fair and reasonable price”? 

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2 hours ago, joel hoffman said:

Because it [full and open competition] is public policy, other than exceptions for set-asides or sole source awards for special classes of the general business community.

@joel hoffmanYes, a 19th Century policy dating back to 1808 that made sense when most purchases were for relatively simple supplies and services and were made using sealed bidding (formal advertising). But today it is inefficient, needlessly costly and time-consuming, and makes us an unattractive customer to the very companies that we need the most. Industry is telling us that, and we need to listen.

The CICA "full and open competition" standard and the procedures that it and the protest tribunals have imposed upon us, see e.g., FAR 15.306, are impeding our ability to respond to the challenges that face our government, a government that has, since the early 1970s, become increasingly dependent on contractors to do its work, even the work of making war. 

We can't afford full and open competition anymore, unless we want to be second-place to China, and we contracting professionals, of all groups, need to explain that to Congress and seek a less expansive, more efficient, standard for competition.

There is no evidence that full and open competition yields better outcomes than a less expansive standard would produce.

We are forced to resort to "reforms" like OTAs in order to get around it. Enough! We need to burn our utopia of rules and sprinkle salt on its earth so it will not arise again. CICA, and all its works, delenda est!

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Here is the US Patent and Trademark Office Acquisition Guidelines, including authority references: 

https://www.uspto.gov/sites/default/files/about/vendor_info/ptag.pdf

The referenced Patent and Trademark Office law is here:

https://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

I believe that this office is not under the Executive Branch. Do you think that Congress would provide broad authority to the general federal agencies to use similar methods? 

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8 minutes ago, joel hoffman said:

Do you think that Congress would provide broad authority to the general federal agencies to use similar methods? 

Not if pros like you continue to say that CICA policy makes sense.

I don't know and don't care about PTO's "guidelines," or FAA's, or USPS's, or BPA's, or the guidelines of any of the other non-FAR agencies. I'm not the cut-and-paste type. I want to design from scratch. I want a new world, not a cloned one.

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