Jump to content
The Wifcon Forums and Blogs

Recommended Posts

Vern, I don’t think that I said that CICA makes sense, as currently written.

I’m questioning what practical alternatives there are, assuming that Congress agrees, given the general capabilities and business judgement of the overall federal contracting and acquisition workforce - as evidenced by the general views that you and others have expressed over the years in the WIFCON Forum.

Its one thing to be able to pump out awards but that doesn’t necessarily mean that they are quality or economically affordable awards, in the best overall interest of the taxpayers, under any method, including full and open competition.

The acquisition workforce, including many Contracting Officers are primarily interested in getting their programs awarded and executed.

There should also be reasons to protect the “Government’s interests”, which should include the  “citizens’ interests, the “public’s interests” and the “taxpayers’ interests”.

Since you initiated this thread without any reasons or explanation for your opinion, I assume that means that everyone is entitled to express their own opinion. 

If you and some other pros can start from scratch and convince Congress, go for it. 🤠

 

 

Link to comment
Share on other sites

  • Replies 56
  • Created
  • Last Reply

Top Posters In This Topic

1 hour ago, joel hoffman said:

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

Well the Brooks Act and some good lobbying.  No doubt other details but does it really matter?

1 hour ago, Vern Edwards said:

I want to design from scratch. I want a new world, not a cloned one.

So one professional here that would help lobby for the new world!  I am in!

Link to comment
Share on other sites

Just now, C Culham said:

Well the Brooks Act and some good lobbying.  No doubt other details but does it really matter?

It does really matter.  Every State has professional licensing requirements for architects and engineers for design of facilities, utilities, transportation systems, etc. that will be used by the general public. These licensing jurisdictions as well as the professional organizations have  codes of ethics and licensing qualifications. They generally prohibit price competition for  professional services in order for licensed designers not to be motivated or have to cut corners, risking health and safety of occupants and users.

A/E services involve the design of real property facilities, public works, civil engineering,  other utilities, dams, flood control, transportation systems, etc., etc., that affect life safety, health, general public, etc., etc.

Unlike many typical services, the design products are often intended to be safe, functional and last for years, decades and sometimes centuries.

Most people want to trust that designs of public (or private) facilities, properties and systems are safe, functional and won’t fail while they or their families are in, on or using them. The primarily consideration for retaining an architect, engineer or A/E team should be on the basis of their qualifications, not price.

 

Link to comment
Share on other sites

1 hour ago, joel hoffman said:

Since you initiated this thread without any reasons or explanation for your opinion, I assume that means that everyone is entitled to their own opinion. 

People will have their own opinion whether they are entitled or not.

I wanted to express an opinion without assuming that everyone is interested. I wanted to see if there is any interest in my reasons. It appears that there is some interest among a few of the regular denizens of Wifcon. But I see no evidence thus far of much interest in the larger world. Same old, same old.

Most people in our field know next to nothing about the history of policy and procedure, and so have no sense that today's policy was not necessarily cut in stone at the creation.

Anyway, not much is likely to happen any time soon. Our legislative and executive branches are pretty much dysfunctional, and our presidents don't understand that almost everything they want to accomplish they will have to accomplish through contracts and, for that reason, they should pay attention to contracting policy and procedure and how long it takes to award a contract.

Link to comment
Share on other sites

5 hours ago, Vern Edwards said:

 I want to design from scratch. I want a new world, not a cloned one.

I personally don’t see most of the current 1102 workforce doing things much differently even with more flexibility.  Look at all the GSA Schedule buys that follow FAR 15 procedures.  Or advertising proposed GSA Schedule actions on eBuy so all of the hundreds of contract holders can participate even though rules say you need need to solicit enough to reasonably ensure three responses.  Then there are people doing commercial buys using RFPs when FAR 13 is allowed.  Even some potentially fruitful things like IDIQ contracts get screwed up because of misuse and abuse.  So now there’s fair opportunity requirements to notify all contract holders (sometimes numbering in the hundred) and the ordering process is often ridiculously complicated.

I would like to see special COs warrants granted to select individuals to do what makes good business sense.  That could include reasonable competition with a reasonable number of known entities.  It would include A&E type approaches for professional services.  Requirements for synopsis wouldn’t apply especially if those COs ensure a fair share of work to small businesses.  OTA type procedures could apply as appropriate.  Those COs will be held accountable for results and get extra pay for their added responsibilities.  
 

Link to comment
Share on other sites

20 hours ago, joel hoffman said:

Unlike many typical services, the design products are often intended to be safe, functional and last for years, decades and sometimes centuries.

I might give you centuries and possibly decades but to imply the service industry, other than A-E, has no interest in safe and functional escapes me.  

Back to my point, and while the OP was an attempt to create thoughts with regard to creation of guiding statute from the ground up, I offered selection based on qualifications and then get to price as a dynamic that has credibility beyond A-E.  After all it seems it is practiced to some extent in GSA FSS and even more so in sole source 8(a) procurements.   Of course I am at risk in mentioning either as conversation will lead to criticism of success  but all the same they are examples.  I would even go as far to say that agencies have created their own multiple award IDIQ processes to manipulate selection by qualification rather than price.  From initial award where basis is on a sample project to the award of multiple IDIQ contracts that carry nothing that resembles pricing, leaving it to the imagination of users to invent price with fair opportunity.

Link to comment
Share on other sites

4 hours ago, C Culham said:

I might give you centuries and possibly decades but to imply the service industry, other than A-E, has no interest in safe and functional escapes me.  

Back to my point, and while the OP was an attempt to create thoughts with regard to creation of guiding statute from the ground up, I offered selection based on qualifications and then get to price as a dynamic that has credibility beyond A-E.  After all it seems it is practiced to some extent in GSA FSS and even more so in sole source 8(a) procurements.   Of course I am at risk in mentioning either as conversation will lead to criticism of success  but all the same they are examples.  I would even go as far to say that agencies have created their own multiple award IDIQ processes to manipulate selection by qualification rather than price.  From initial award where basis is on a sample project to the award of multiple IDIQ contracts that carry nothing that resembles pricing, leaving it to the imagination of users to invent price with fair opportunity.

Carl, I didn’t mean to offend you concerning the importance of service contractors.

The point I am trying to make is that architects and engineers have to go through a licensing process with yearly continuing education, because they design structures, utilities, bridges, roads,  systems, etc. which affect the health and life safety of the public. They must be experts in the various building codes, life safety codes, numerous Industry technical guidelines and requirements, structural codes, plumbing and electrical codes, yah deh, yah deh.

Architects and engineers experience some considerable risk if their design result in failure and/or injury or loss of life. There can be both civil and criminal liability for negligence or errors causing physical or injury/deaths. 

There is a broad opinion in United States that owners shouldn’t require Architects and engineers to compete for FFP work on the basis of price.  As far as I know every licensing jurisdiction and every professional organization prohibit them from competing for work based on price.

There is also a statutory,  6% of the construction cost, ceiling on the fee for the actual design services, which usually constitute a major share of the overall A/E services. 

The same licensing requirements and level of long term life safety risk plus long term (statutes of repose) responsibility for fixing errors and omissions and corrective costs aren’t evident to me in much of the service contracting industry. 

 

Link to comment
Share on other sites

20 hours ago, formerfed said:

I would like to see special COs warrants granted to select individuals to do what makes good business sense.  

All CO appointments should be "special". No  more handing them out as rewards or inducements to stay, or because the office needs signatures.

 

Link to comment
Share on other sites

On 5/14/2021 at 1:13 PM, Vern Edwards said:

All CO appointments should be "special". No  more handing them out as rewards or inducements to stay, or because the office needs signatures.

 

Many offices need several COs to do high volume, routine tasks like signing orders and simple contract modifications.  That takes much of the signing workload off the senior experienced COs and these type warrants should have very limited monetary authority.  But I agree warrants for high dollar value or unlimited should be “special.”  

In fact if we ever got significant changes like we are talking about, it’s going to take a rare breed of COs to make it work.  OTAs are a prime example.  The concept is important to make the acquisition responsive to today’s defense needs.  But it also is often misused and abused by COs or others with signatory authority who have no business being in that position.  Already DoD is talking about establishing policies and procedures to make it “standardized.”  Thats to add bureaucracy and oversight.  Soon it will be so diluted by so many detailed procedures to follow, all the benefits are gone.

If CICA went away, the COs responsible for implementing whatever the new process is must be different than the rank and file COs of today.  I’m not optimistic if could work.  The majority of people of today are comfortable with the status quo.  They don’t want to do things differently from what they know and are comfortable with.  They avoid doing anything that might mean criticism.  Faced with a new situation they are familiar with, they look for rules.  If there aren't any, they seek someone to tell them what to do.

 

 

Link to comment
Share on other sites

6 hours ago, formerfed said:

If CICA went away, the COs responsible for implementing whatever the new process is must be different than the rank and file COs of today.  I’m not optimistic if could work.  The majority of people of today are comfortable with the status quo.  They don’t want to do things differently from what they know and are comfortable with.  They avoid doing anything that might mean criticism.  Faced with a new situation they are familiar with, they look for rules.  If there aren't any, they seek someone to tell them what to do.

A sad state of affairs that's taken a long time to develop and would take even longer to change for the better, if possible. But it's an opportunity for those who are ready to take advantage.

Link to comment
Share on other sites

Some agencies already have a system that takes the full and open paradigm out of the decision making process.  They require all prospective offerors to prequalify for specific systems that will be purchased and only solicit those contractors for requirements in those systems.  

That rationale is good; the systems involve flight, missiles and other systems where people's lives would be endangered by using a non-standard product or assembly.  I don't know how that would work for procurements that do not involve critical systems like aircraft wings and engines, but perhaps it is time for us to go to such a procurement philosophy where possible.

Link to comment
Share on other sites

The rules about prequalification are in FAR Subpart 9.2, and it isn't easy.

More than 20 years ago Professor Ralph Nash wrote an article entitled, "Prequalification: Can It Be Used To Improve The Procurement Process?" The Nash & Cibinic Report, April 1996. He wrote in part as follows:

Quote

One of the “dirty words” in Government procurement is prequalification. When it is used, many contracting professionals think of a technique that restricts a procurement to those firms that have been previously placed on a list of qualified offerors--and they believe that is illegal. The most knowledgeable will tell you of the many decisions of the Comptroller General so stating. In the course of revising our text, Formation of Government Contracts, I decided to do a thorough research job to find out where this folklore came from. I found a series of Comptroller General decisions in the early 1970s decrying prequalification and a sporadic number of subsequent decisions permitting prequalification. In the midst of this mixed bag of decisions, Congress entered the fray with two statutes in 1984, and Federal Acquisition Regulation implementation followed in due course. My ultimate conclusion is that prequalification is legally permissible in many contracting situations if an agency wants to use the resources necessary to meet the statutory requirements.

***

There seems to be little doubt that an agency can use a prequalification system to prequalify sources for a wide variety of procurements if it is willing to follow the statutory procedures. This entails publishing the requirements, regularly qualifying prospective sources, and notifying sources that do not meet the requirements of their deficiencies. It also may require referring a nonqualification of a small business to the SBA for a prospective Certificate of Competency. See Stevens Technical Services, Inc., Comp. Gen. Dec. B-250515.2, 93-1 CPD ¶ 385, where the Comptroller ruled that this was necessary when the qualification requirements were no more than normal responsibility factors (the statutes preclude this requirement if there are special requirements). These procedural requirements are probably sufficiently demanding to discourage most agencies from adopting source prequalification procedures. However, once such a system is in place, it might not be too difficult to sustain, and it would have the major benefit of limiting bids or proposals to those companies that were really qualified to perform the contract.

***

The most difficult aspect of source prequalification is the initial determination that such a system is necessary. The statutes require that this determination be made by the “head of the agency” but this authority has been delegated to lower levels by many of the agency FAR supplements (FAR 9.202(a)(1) calls for the determination to be made by the “head of the agency or designee”). However, the delegation is very uneven and, in many agencies, the approval authority is still at a relatively high level. This means that there will be a lot of “staffing” of such determinations--with the expected negative comments. This can be particularly troublesome in the situation, as here, where there is no guidance as to what constitutes “necessity.” The only help that we can give is that “administrative convenience” is not necessity. But running a more effective procurement system might well meet the “necessity” test, and prequalification could easily be seen as a move in that direction. In fact, we would argue that a well-run source prequalification system would greatly enhance competition by informing all offerors before the expenditure of bid and proposal costs that they were considered to be qualified--or unqualified as the case may be. We believe that Congress was saying just that when it enacted the statutes.

Finally, there seem to be a few common sense principles to be applied here. For example, it seems clear that source prequalification would be most appropriate where the agency had had the experience of receiving bids or proposals from a significant number of unqualified sources--with the resulting waste of resources by both the industry and the Government agency. If that has not been the case, it doesn't appear that the cost of running a prequalification system would be worthwhile. We also have some doubt as to whether source prequalification is worthwhile if there is a likelihood that there will be numerous prequalified offerors. Again, the cost of the system would probably outweigh the benefits to be gained. Thus, prequalification of sources should be reserved for those situations where there are real payoffs. In such cases, there seems to be no legal impediment to its use.

Prequalification  has never caught on in a widespread way, probably because it is administratively challenging.

Prequalification decisions are not protestable unless they are done in connection with a solicitation of bids or proposals. See CGI Federal, Inc., B-418807, Aug. 18, 2020.

Link to comment
Share on other sites

5 hours ago, Vern Edwards said:

Prequalification  has never caught on in a widespread way, probably because it is administratively challenging.

I know of one office that tried it and gave up in a short time.  Besides of all the work setting it up, companies that didn’t make the cut kept coming back saying they fixed items they were dinged on.  Then a few new ones showed up and complained to Congressional reps they weren’t allowed in and were better qualified than some that were. 
 

And no, it wasn’t me that tried it 😄

Link to comment
Share on other sites

15 hours ago, DWGerard1102 said:

Some agencies already have a system that takes the full and open paradigm out of the decision making process.  They require all prospective offerors to prequalify for specific systems that will be purchased and only solicit those contractors for requirements in those systems.

When I worked for industry that’s how we did most of our procurements.

Link to comment
Share on other sites

On 5/13/2021 at 9:26 AM, C Culham said:

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

Link to comment
Share on other sites

13 hours ago, bob7947 said:

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

thank you Bob!   I agree!

Link to comment
Share on other sites

On 5/18/2021 at 5:49 PM, bob7947 said:

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

Lauder (Govt bribed, Walter Reed official) faces “two year” prison sentence for his part??? 
And Thomas, the guy who bribed Lauder, also faces a maximum of “two years”...

https://www.justice.gov/usao-md/pr/owner-company-providing-prosthetics-and-orthotics-materials-walter-reed-national-military

Hmmm. BPA fraud. Hmmm. Aren’t BPA’s relatively simple and convenient to use? Apparently they were here. 

 

Link to comment
Share on other sites

1 hour ago, joel hoffman said:

Lauder (Govt bribed, Walter Reed official) faces “two year” prison sentence for his part??? 
https://www.justice.gov/usao-md/pr/owner-company-providing-prosthetics-and-orthotics-materials-walter-reed-national-military

Hmmm. BPA fraud. Hmmm. Aren’t BPA’s relatively simple and convenient to use? Apparently they were here. 

 

I’m somewhat familiar with the prosthetics situation at VA and can see how this could happen without catching too much attention.  VA wanted to establish large national or regional IDIQ contracts for prosthetics several times.  They felt volume purchasing would create economic savings as well as allow for quick delivery.  However doctors that treat veterans strongly feel they want to only deal with suppliers they could work closely with (local) and they could easily customize for their patients.  Over time the medical staff had preferred vendors based upon experiences with their patients.  So the idea of IDIQ contracts never had a chance and local BPAs allowing doctors to pick suppliers based upon the unique circumstances of each patient continued. 

Link to comment
Share on other sites

A run of the mill case of corruption.

I don't understand why Bob chose to post the news in this thread. What does it have to do with the opening post and the topic of eliminating the CICA requirement for "full and open competition"?

CICA did not prevent this low grade corruption. It didn't prevent the Fat Leonard scandal, which was huge. Nothing will prevent corruption, not even the threat of death by extended torture. Some humans simply will be corrupt. What's new?

A case of collective short attention span.

Link to comment
Share on other sites

1 minute ago, Vern Edwards said:

I don't understand why Bob chose to post the news in this thread. What does it have to do with the opening post and the topic of eliminating the CICA requirement for "full and open competition"?

My fault....see my post of May 13 to this thread.  Which by your now most current comments I can see was probably a mis-placed comment.

Most interesting to me is nobody picked up on the DOL case listed just above it.   Why?  Probably it is just another case of low grade, intentional or not, misapplication of SCA by a contractor.  A contractor by the way that has done approximately $20 million in work also for the VA.

Link to comment
Share on other sites

For those who want to pursue the topic of the pros and cons of competitive bidding, instead of cluck-clucking because some jackass nimrod took $20,000 in bribes over the course of a number of years and will now go to jail, where he belongs, here's some reading:

https://www.sa-tenders.co.za/content/hints-tips-and-news/7-disadvantages-competitive-bidding

https://www.processexcellencenetwork.com/innovation/columns/seven-reasons-competitive-tendering-fails-and-what

And here's a quote for you:

Quote

The use of competitive bidding for engagement of engineering services continues to increase. A review of the current status of the practice with particular reference to public agencies is presented and analyzed. Both advantages and disadvantages of various methods used are discussed. The use of competitive bidding is detrimental to the quality of engineering services, and invariably results in an adversarial client relationship. Guidelines are provided for those instances where competitive bidding is the only method proposed for selection of the engineer. The engineer is cautioned that his relationship to the client will be adversarial and appropriate contact provisions are required.

That was written by a government engineer employed by the Department of Energy. (You'll have to pay for the full article.)

https://ascelibrary.org/doi/pdf/10.1061/(ASCE)1052-3928(1987)113%3A1(66)

Link to comment
Share on other sites

So one thing that jumps out at me from reading those is why not allow the government PM and CO to authorize continual performance from quality suppliers?  As a minimum for extended performance, an incumbent continues to offer fair prices and high level performance.  Some other things might be useful such as providing continual improvement.   The concept is similar to award term contracts but not tied into a set duration or criteria.  

Link to comment
Share on other sites

1 hour ago, formerfed said:

So one thing that jumps out at me from reading those is why not allow the government PM and CO to authorize continual performance from quality suppliers?

Because our Congress thinks that the only way to get fair and reasonable prices is through head-to-head price competition. There is a long and voluminous record of congressional hearings in which Congress has expressed its distrust of one-on-one price negotiations.

Link to comment
Share on other sites

20 hours ago, Vern Edwards said:

For those who want to pursue the topic of the pros and cons of competitive bidding, instead of cluck-clucking because some jackass nimrod took $20,000 in bribes over the course of a number of years and will now go to jail, where he belongs, here's some reading:

https://www.sa-tenders.co.za/content/hints-tips-and-news/7-disadvantages-competitive-bidding

https://www.processexcellencenetwork.com/innovation/columns/seven-reasons-competitive-tendering-fails-and-what

 

Exactly why we moved away from low bid, IFB to best value trade off. Yep, more work than IFB.

But we got rid of virtually all the dirt bag, low bid contractors that we had been forced to deal with. I remember dreading having to conduct the post award conferences with those firms, knowing that that would be just the start of a miserable experience throughout contract performance performance. 

And the handful of acceptable but confrontational, difficult to deal with construction contractors we had frequent business with at each installation soon mellowed.

And once Partnering was accepted by both our workforce and the contracting community, it became more fun and rewarding dealing with those firms.

Past performance distinctions became important. We often included an installation rep and someone from our field office on source selection teams, who had personal knowledge of the competing firms (as Capt Renault said: “the usual suspects”) performance.

The quality of preparation of past performance ratings vastly improved once our field offices discovered that it could be a meaningful discriminator. Before, it made no difference. We had ended up getting the same, poorly performing, difficult contractors.

We also used the opportunity to evaluate proposed key personnel and the key subcontractors who would perform much of the project work.

We also added a key personnel and key subcontractor clause to dissuade “bait and switch” of the B or C key sub and key personnel teams for the proposed A teams.

Sure it was a lot more effort that IFB. Since it was in our client installations’ and our field offices’ best interests, they were appreciative of the opportunity to have some influence in selecting their contractors. And we, as their District Office Headquarters team, looked out for their interests.

And - the District Office Project Managers finally had to be accountable for more than simply getting rating credit for the number of awards they could get out the door. We put them on the SSB, too. That and the fact that they were made responsible for the life cycle quality/success and customer satisfaction of the project, including after award.

And- being on the technical evaluation teams and having an SSB member, the Engineering Division design teams had the opportunity to become more involved after they “put down their pencils” or CADD programs. They became more accountable for their design products, seeing the feedback from industry in the competitively negotiated process.

Instead of the old “stovepipe”, territorial functional duties and responsibilities, teamwork and internal government partnering was fostered and promoted.

Link to comment
Share on other sites

I want to add that we took advantage of the opportunity to conduct meaningful discussions in order to be able to obtain better pricing (and/or pricing within budget and/or awardable funding limits) and technical proposals, as well as improve the quality of the government’s design and overall solicitation requirements. 

Link to comment
Share on other sites

Guest
This topic is now closed to further replies.
 Share


×
×
  • Create New...