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I just read an online column in which the author (1) asserted that the government neglects contract performance management to its detriment and (2) called for the devotion of more resources to that acquisition function. I don’t know on what basis the assertion was made or whether it is true, but I would not be surprised to learn that it is. My impression is that most contracting people devote most of their time to acquisition planning, contractor selection, contract award, and to unavoidable contract mods and postaward administrative matters. I suspect that most have little or no time for actual contract performance oversight and management.
If that is true, why would it be so? I am not sure, but I believe that a major contributing factor is the multiple-award task order contract. (By “task order contract” I mean an indefinite-delivery indefinite-quantity (IDIQ) contract for services.)
We spend more on services than supplies, and we conduct a lot of competitions in order to spend that money. We conduct competitions under FAR Part 13, FAR Part 14 (a few), FAR Part 15, FAR Subpart 8.4, and FAR Subpart 16.5. The reason for conducting Part 13, 14, and 15 competitions is obvious and understandable, but the Subpart 8.4 and 16.5 task order competitions are competitions on top of competitions. We do them because Congress wants agencies to continue the pursuit of lower prices after contract award and keep pressure on contractors to perform well.
Competition is resource intensive, time-consuming, and costly to all involved. How much time and money do all the 8.4 and 16.5 competitions cost and how much money, if any, do they actually save in the long run? Do they, in fact, result in better quality than could be had through effective contract management? No one knows, because no one keeps track.
The preference for multiple awards of task order contracts was a provision of the Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355, §§ 1004 and 1054. The FAR councils implemented the statutory preference in FAR 16.504 and 16.505. FAC 90-33, 60 FR 49723, Sep. 26, 1995.
I commented on the proposed rule, 60 FR 14346, Mar. 16, 1995, in an article for The Nash & Cibinic Report entitled, “The New Rules for Multiple Award Task Order Contracting” (June 1995, 9 N&CR ¶ 35). In that article, I said:[T]he proposed rule is significant because of the policy preference for multiple awards and task order competition. Presumably, multiple awards and competition among the awardees for task orders would pressure the awardees to continuously increase their productivity and the quality of their output. But multiple awards and task order competition could also increase the administrative cost and lead time associated with the issuance of task orders, and those effects could cancel out or even overwhelm the advantages accruing from task order competition. Although the idea of awarding multiple task order contracts for the same service and requiring that the awardees compete for individual task orders is not new (a few agencies have been doing this for many years), the vast majority of task order contracts have been single awards. Thus, the new policy can be expected to have a significant effect on procurement operations.
I also said:The multiple award preference policy states that every awardee must be given a “fair opportunity” to be considered for the award of each task order in excess of $2,500. The proposed rule leaves the choice of evaluation factors to the CO's discretion. The CO need not publish a synopsis, solicit written proposals, or conduct discussions with awardees prior to the award of a task order, proposed FAR 16.505(1). The rule precludes protests against task order award decisions. Agencies must appoint task order “ombudsmen” to handle complaints from awardees about task order selections, proposed FAR 16.505(4).Notwithstanding these liberal policies, it is not difficult to imagine Government procurement officials conducting a mini-source selection before the issuance of each task order. Some will almost certainly consider a more formal procedure to be necessary to ensure fairness. One can easily imagine requests for proposed task order “performance” plans or “management” plans, especially for task orders of significant dollar value. One can also imagine requests for extensive cost breakdowns, certified cost or pricing data, and proposal audits. If too complex and demanding, such procedures would significantly increase an agency's administrative costs, extend the lead time associated with task order issuance, and force awardees to incur significant costs in the preparation and negotiation of task order proposals.
And I concluded:The objectives of the proposed rule about the task order contract multiple award policy preference are unstated, but one objective is undoubtedly to lower the cost of services provided under task order contracts by maintaining competitive pressure on contractors throughout the life of the contract. This may be a reasonable expectation based on theory, but there are many reasons to believe that it will not work as intended. The proposed rule of March 16, 1995, if issued unchanged as a final rule, will not increase the policy's prospects for success. It simply fails to address all the issues that the policy creates in ways that will assist working-level procurement officials to implement the policy in an intelligent manner.
Well, we all know what happened after FASA and FAC 90-33. The number and dollar value of acquisitions of services under multiple-award task order contracts (and GSA FSS contracts) soared. There was a lot of misuse and sloppy practice. In reaction, Congress and the FAR councils made the once liberal rules more voluminous and restrictive, not only for task order contracts under FAR Subpart 16.5, but also for orders against GSA Federal Supply Schedule contracts under FAR Subpart 8.4.
Competition is an essential part of acquisition policy, but competitions clog the acquisition system by absorbing a lot of human resources, taking a lot of time, and costing a lot of money. I believe that the multiple-award preference has made for a lot of unnecessary and ineffective competitions. It is not at all clear that the contracting results have been better than they would have been had agencies been allowed to make single awards without hectoring by the GAO, review teams, IGs, and other critics. Would America really be worse off if agencies simply conducted one competition for a task order contract, chose one contractor, awarded one contract, and focused on getting the best performance from that firm under that contract?
Multiple awards can be useful and have a place in acquisition practice, but I think that the statutory and regulatory preference for multiple awards has been one of the worst things that has happened to postaward contract management. It has diverted precious human resources to processes of dubious effectiveness and away from work that, if done well, would likely have a much more direct and immediate impact on results.
If anyone believes that better contract performance management yields better results and is looking for more resources to devote to that work, start by seeking the elimination or moderation of the multiple-award preference.
Four ideas to make elimination or moderation of the multiple-award preference more palatable to Congress:
1. Limit the duration of ordering periods under single-award task order contracts to three years, including options.
2. Amend the applicable statutes to expressly allow agencies to renegotiate prices and rates in single award contracts and prices and rates in contract extension options after contract award, without conducting a new competition.
3. Allow agencies to negotiate and award a new contract of up to three years duration with one of the original competitors without conducting a new competition if the original awardee's contract is terminated for convenience or default during the first year of the ordering period.
4. Develop a special course in services pricing and price negotiation for all COs who manage task order contracts and require them to attend and successfully complete the course within the first year of their assignment to such a contract.
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All of us can probably agree that each year seems to go by faster than the year before. The older we become, the rate at which we age seems to increase. So now, with 2016 upon us, (and without providing a comprehensive listing of new contracting laws, statutes, regulations, personnel changes, or best practices during 2015), perhaps it’s best to simply summarize and reflect on what 2015 might signify regarding acquisition success. Let’s also not use the “R” word even though talking about acquisition reform keeps us blog writers and consultants busy.
Some initiatives that began with great fanfare are no longer around. The government almost “closed” again, although the list of program exceptions to shutdowns is now so large that many don’t notice. Those programs with greater lobbying power are essential, while many very worthy programs are used as pawns. Probably the greatest damage to government contracting, dwarfing any new legislative improvement, is the indecisive nature and short-term environment under which government programs must operate.
GSA launched initiatives in category management, including its acquisition gateway, eBuy Open and other initiatives intended to improve contracting officer market knowledge and vehicles available to meet specific needs and better leverage government buying power.
The Department of Defense says it’s at a 35-year best in controlling costs for major acquisition programs and bestowed a variety of 15 individual and five organization awards for the past year. Heidi Shyu stepped down as the Army’s acquisition executive and off of the acquisition “bus,” where she coined the analogy that all acquisition program “passengers” have a brake and steering wheel, but no gas pedal.
Legislation intended to improve the current process within information technology is underway and new legislation within DoD was passed. It will be sometime before it is clear how well these latest changes have performed.
Discussion with today’s acquisition leaders reveals a determination to do the right thing as best as possible despite the peripheral (beyond acquisition) system challenges at each step. This past year may best be remembered for cyber security breaches; new and enhanced multiple-crises emanating from the Middle East; successful space probes and retrieval; cyclones, earthquakes, and changing climates; gun violence from Tunis to California; and a never-ending political campaign.
For contracting managers, the faster nature of societal change and news cycles may mask the great strides being made to respond more effectively to ever-changing government requirements and outsourcing needs. Ineffective conference, education, and industry communication restrictions appear to be abating. However, lengthy debate over government salary, bonuses, or predetermined solutions to unresearched acquisition problems continues.
From a contracting standpoint, 2015 may not be momentous in terms of single legislation or headlines. However, the complexities and challenges of successfully navigating today’s acquisition environment—from reduced spending to cyber security to Federal Reserve policy to the sheer complicated nature of the business enterprise itself—continues to grow. The requirements are harder, and the solutions harder still. Contractors supporting the government (and indeed the government itself) have a more difficult time understanding how to prepare, respond, and execute to these ever-evolving challenges. From workforce to technology, uncertainty is increasing and proven solutions decreasing. A new workforce is growing up in an environment of more employment uncertainty, from challenges to the education they’ve received to the manner of training and on-the-job experience they need.
However, we should all be impressed by the professionals working within this environment and what they accomplish. They don’t have time to publicly write or promote their efforts, but they are there and are noble. The year 2016 promises to be no easier than 2015. Our contracting leaders and managers are up to the challenge, but let’s understand for ourselves the causes and concerns, offer our advice and support, and be part of the solution.
Michael P. Fischetti
National Contract Management Association
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The Competition in Contracting Act of 1984 requires the Government Accountability Office (GA0) to report to the U. S. Congress annually when government agencies fail to fully implement its bid protest recommendations. GAO has posted these reports on its website since fiscal year (FY) 1995. Initially, these reports provided little information but by FY 2004, GAO published its "Bid Protest Statistics" covering FY 2004 through 2001. I have added every one of these reports to the fiscal year numbers at the top of the bid protest statistics.
Beginning in its report for FY 2013, GAO began listing its "most prevalent reasons for sustaining protests" during the FY. This has continued for FY 2014 and FY 2015. Although the information provided does not include cases where an agency took corrective action before a formal sustained decision was reached, it does provided information on 227 sustained decisions. In that sense, it may provide some help whether you are trying to prevent a protest or whether you may protest a procurement.
Below is my ranking of the most prevalent reasons for sustained protests listed by GAO for FY 2015 through FY 2013:
- failure to follow the evaluation criteria (listed 3rd in FY 2015 and 1st in FYs 2014 and 2013).
- unreasonable cost or price evaluation (listed 1st in FY 2015 and 4th in FY 2013) and
- inadequate documentation of the record (listed 4th in FY 2015 and 2nd in FY 2013)
- unequal treatment of offerors (listed 4th in FY 2014 and 3rd in FY 2013)
- unreasonable technical evaluation (listed 5th in FY 2015 and 3rd in FY 2014)
This ranking also requires a caveat because the number of sustained protests varied significantly for FY 2015 (68), FY 2014 (72), and FY 2013 (87).
Other reasons for sustained protests GAO listed include
- unreasonable past performance evaluation (listed 2nd in FY 2015)
- flawed selection decision (listed 2nd in FY 2014)
In addition to listing the most prevalent reasons, GAO also gives 1 example decision for each of the most prevalent reasons it lists in a FY. For example, under unreasonable cost or price evaluation which GAO placed first in FY 2015, GAO lists Computer Sciences Corp.; HP Enterprise Servs., LLC; Harris IT Servs. Corp.; Booz Allen Hamilton, Inc., B-408694.7 et al., Nov. 3, 2014, 2014 CPD ¶ 331.
My listing of each decision that GAO provided as a most prevalent reason with a link to the decision is here.
To me, the most striking reason for GAO sustaining a protest is inadequate documentation. That can be prevented by a thorough review of what documents are provided in the evaluation and selection decision. If there is something missing, identify it and correct it. You can get more information on the documentation issue by looking at the Wifcon.com protest page FAR 15.305 (a)(3): Technical Evaluation - Documentation.
Another striking reason for sustained protests is the first that I list--failure to follow the evaluation criteria. One time a friend of mine was sitting on an evaluation panel for a GAO procurement that I had no involvement in at all. He had something extra he wanted to include in his evaluation of proposals and he asked me about it. Although I was stunned at the question, I simply told him that he must follow the evaluation criteria in the solicitation and if he had any questions he should ask the contracting officer--not me.
Before ending this entry, I will once again remind you that the information provided by GAO only includes sustained protests. These are decisions in which the agency digs in its heels and fights the protest to a final decision. As GAO explains, "agencies need not, and do not, report any of the myriad reasons they decide to take voluntary corrective action." What you see here may be the tip of the iceberg.
“When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.”
“The question is,” said Alice, “whether you can make words mean so many different things.”
“The question is,” said Humpty Dumpty, “which is to be master—that’s all.”
--Lewis Carroll, Through the Looking Glass
When Better Buying Power (BBP) 1.0 was first issued in September 2010, then Undersecretary of Defense for Acquisition, Technology, & Logistics (USD(AT&L)) Ashton Carter used the word “tradecraft” when describing one of the five “areas” of BBP initiatives. The area was called “Improving Tradecraft in Services Acquisition.” The initiatives that were subsequently identified under this area were:
· Create a senior manager for acquisition of services in each component, following the Air Force’s example
· Adopt uniform taxonomy for different types of services
· Address causes of poor tradecraft in services acquisition
· Increase small business participation in providing services
“Tradecraft” was also used by current USD(AT&L) Frank Kendall in the 2015 Defense Acquisition Performance Assessment:
The objective is to see how well we are doing, learn from these generalities, and change our policies and tradecraft as we seek to improve outcomes.
It would seem that both Carter and Kendall are using “tradecraft” to mean the knowledge and skills for a particular occupation. However, that’s not what “tradecraft” actually means, nor is it commonly used in that sense. According to Merriam-Webster online dictionary (www.m-w.com), “tradecraft” means “the techniques and procedures of espionage”. The Oxford English Dictionary (OED) online (www.oed.com), gave three definitions of “tradecraft” dating as far back as 1812:
a. A trade-guild
b. Skill or art in connection with a trade or calling; specifically skill in espionage and intelligence work
c. The craft or art of trading or dealing
In “’Tradecraft’ Infiltrates the Language” lexicographer Neal Whitman describes the resurgence of “tradecraft” in the language:
Tradecraft, which has been spy jargon since at least the 1960s, has been making its way into more mainstream consciousness recently, as we hear about operations like the search for Osama bin Laden, or about Edward Snowden's training as a spy. Maybe you were thinking that it referred to the knowledge and skills for any particular occupation, but tradecraft is a good example of how words, compounds, or phrases with seemingly transparent meanings can settle into semantic idiosyncrasy through historical circumstance.
Whitman uses a quote from Agent Maya in the movie Zero Dark Thirty to illustrate its most common use:
“Over the course of two months he's called home from six different pay phones, from two different cities, never using the same phone twice. And when his mother asked him where he was, he lied. He said that he was in a place in the country with bad cell reception—implying he was in the Tribals—but he was in Peshawar. I'm sorry, but that's not normal guy behavior. That's tradecraft.”
The article continues:
These days, the most common meaning of tradecraft is indeed the one that Agent Maya had in mind. The Corpus of Contemporary American English, which contains 450 million words of English from 1990 through 2012, has 56 examples of tradecraft or trade craft, and of them only four (about 7%) do not have an espionage-related meaning. One of them refers author Paul Theroux's craft as a writer; one refers to medical skill; one refers to political savvy in dealing with upset constituents; and the last is a proper noun, apparently the name of an online travel advisory service (though I was unable to locate a current website for it). The remaining 93% of the COCA hits are more like these:
"Poor tradecraft, meeting in the open like this," Jake said.
It sure didn't sound like any CIA tradecraft I'd ever learned—but I wasn't going to argue.
Regarding the OED definition, Whitman explains:
However, tradecraft didn't start out with this intelligence-related meaning. The Oxford English Dictionary has it from 1812 with the meaning "the craft or art of trading or dealing." This citation from 1899 illustrates it well: "It is a lesson in tradecraft … to see how the girl holds her own with the dealers." And even now you can find examples like those lonely four that I found in COCA, as well as the occasional company name...
While it would not seem out of the ordinary to hear this use of “tradecraft” on an episode of Downton Abbey, the broad meaning of the word is virtually dead in Contemporary English. “Tradecraft” has settled into semantic idiosyncrasy. While I’m not above purloining a word from another field if I find no other word as apt, there are plenty of words that could have been used to describe the particular BBP area (“skill”, “expertise”, and “proficiency” come to mind). As acquisition professionals, we have a hard enough time communicating in the language of acquisition without adopting words from other fields (no matter how cool they sound). The Plain Language Action and Information Network (PLAIN) advises us to “understand your readers and match your language to their needs” (see http://www.plainlanguage.gov/howto/wordsuggestions/index.cfm). When choosing words, the objective should be to communicate, not to impress. Even if “tradecraft” meant what the authors of BBP thought it meant, its obscurity would still have made it a poor choice.
Eavesdropping, making dead drops, drycleaning--that's tradecraft. Creating senior manager positions in charge of service acquisition, adopting a uniform taxonomy for different types of services, increasing small business participation in service acquisition--that’s not tradecraft.
This post is not really so much about misunderstanding the missing words, but the misunderstanding that is created by the missing words when read or hear "All contractors must be treated the same" or "All offerors must be treated equally", or such similar sentences. It is the part that should come after, but in many cases does not, that concerns me.
In the GAO Bid Protest Annual Report to Congress for Fiscal Year 2014 (B-158766, GAO-15-256SP), November 18, 2014, Susan A. Poling, General Counsel of Government Accountability Office, wrote:
Of the decisions resolved on the merits during fiscal year 2014, our Office sustained 13 percent. Our review shows that the most prevalent reasons for sustaining the protests during the 2014 fiscal year were: (1) failure to follow the evaluation criteria;1 (2) flawed selection decision;2 (3) unreasonable technical evaluation;3 and (4) unequal treatment.4 [Footnotes omitted]
[Well, at least she signed. Keep in mind that Washington, DC is a place where people write letters they don’t sign, and sign letters they don’t write.]
My concern is with the last of the four reasons “unequal treatment.” What’s wrong with that? What's wrong with not treating offerors equally? Where in the Federal Acquisition Regulation (FAR) does it say that all prospective contractors or all offerors or all contractors must be treated equally? Does it even make sense to treat all prospective contractors or all offerors or all contractors equally?
Similarly, in recent conversations I’ve heard contracting officers make similar statements, such as “all contractors must be treated equally” or “all offerors must be treated the same.” I would ask the same questions that I asked concerning the GAO statement.
What the comments of the GAO and of the contracting officers have in common is the underlying concept that everyone must be treated equally, must be treated the same. Does that make sense? At first blush, it may. After all, that’s fair, isn’t it? We were all reared being taught that we should be fair. That’s why in kindergarten everyone got equal access to the toys. But, let’s explore that concept with a simple example.
Let’s say that you are a contracting officer conducting a source selection IAW FAR Part 15, and it is time to conduct discussions with offerors in the competitive range. You have two offerors in the range Acme and Beta. You decided to hold discussions with Acme first. Your biggest concern with Acme’s proposal is the price, which was 17 percent above the Government estimate. In discussions you told Acme that its price was too high, significantly so, and that Acme needed to sharpen its pencil prior to final proposal revisions. Now, it is time to hold discussions with Beta, which has a price 17 percent below the Government estimate. What do you say to Beta? Well, if all offerors "must be treated the same," you must tell Acme that its price is too high, significantly so, and that Beta needs to sharpen its pencil prior to final proposal revisions.
Ridiculous you say? Absolutely! But, it is the ultimate conclusion, if all offerors must be treated the same, but only if. However, all offerors need not be treated the same.
What does the FAR have to say on the subject? The FAR requires that contracting officers conduct business with integrity, fairness, and openness. Specific to this issue is FAR 1.102-2( c )(3):
The Government shall exercise discretion, use sound business judgment, and comply with applicable laws and regulations in dealing with contractors and prospective contractors. All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same. [Emphasis added]
What the GAO or contracting officers mean, or should mean, when they say all offerors and contractors must be treated the same or treated equally relates to the words that are typically left unsaid, but, hopefully meant (i.e., "in like circumstances").
Let’s go back to what the GAO said about unequal treatment. The footnote that was omitted above:
E.g., Alutiiq Pacific, LLC, B-409584, B-409584.2, June 18, 2014, 2014 CPD ¶ 196 (finding that agency disparately assigned strengths to awardee’s and protester’s proposal for offering essentially the same feature).” In the headnotes of the case it states “Protest that agency disparately assigned strengths to proposals during its evaluation is sustained where record shows that agency assigned different number of strengths to awardee’s and protester’s proposals for offering essentially the same feature.
The issue, then, is not unequal treatment, but unequal treatment in like circumstances. That is why in our fictitious negotiation the contracting officer will actually tell Acme that its price is too high and Beta that its price is too low.
In another protest, in another footnote, GAO gives another explanation:
8 In any event, where a protester alleges unequal treatment in the agency’s evaluation of past performance, it must show that the differences in ratings did not stem from differences between the offerors’ past performance, but rather, that the offerors were rated differently where there were similarities in their past performance. Myers Investigative and Security Servs., Inc., B-288468, Nov. 8, 2001, 2001 CPD ¶ 189 at 7-9; see Paragon Systems, Inc.; SecTek, Inc., B-409066.2, B-409066.3, June 4, 2014, 2014 CPD ¶ 169 at 8-9. Given the differences in the type of performance issues identified, their severity, and their recency, Global has made no such showing. [Global Integrated Security (USA) Inc., B-408916.3; B-408916.4; B-408916.5, December 18, 2014, Page 12, Footnote #8.]
To give you another example, from a different source, you can see this issue addressed in Federal Procurement Policy Administrator Dan Gordon’s “Myth-Busting”: Addressing Misconceptions to Improve Communication. The memorandum discusses various myths, or misconceptions, about Government-Industry relations. The first misconception was “We can’t meet one-on-one with a potential offeror.” The fact is described as Government officials can generally meet one-on-one with potential offerors as long as no vendor receives preferential treatment. The discussion, in part states:
Prior to issuance of the solicitation, government officials – including the program manager, users, or contracting officer – may meet with potential offerors to exchange general information and conduct market research related to an acquisition. In fact, the FAR, in Part 15, encourages exchanges of information with interested parties during the solicitation process, ending with the receipt of proposals. There is no requirement that the meetings include all possible offerors, nor is there a prohibition on one-on-one meetings. Any information that is shared in a meeting that could directly affect proposal preparation must be shared in a timely manner with all potential offerors to avoid providing any offeror with an unfair advantage (FAR 15.201(f)). [Emphasis added]
If the FAR required that we treat all prospective contractors the same, we would have to provide one-on-one meetings with all. But we don’t have all the time in the world, so we must marshal our resources accordingly. Instead of providing one-on-one meetings with all, we provide them to the prospective offerors that have the potential to successfully compete, not to every Tom, Dick, and Harriet that doesn’t have a “snowball’s chance”. [That last bit is a technical term.] I know that this makes some contracting officers, and many lawyers, nervous, but it is the right and proper thing to do.
So, next time somebody says that all prospective contractors or all offerors or all contractors must be treated the same, or must be treated equally, look for the missing words, and think about whether the speaker is interpreting them correctly.
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The long-standing principle that the federal government had the same implied duty of good faith and fair dealing as any commercial buyer was put in jeopardy by a 2010 decision of the U.S. Court of Appeals for the Federal Circuit, Precision Pine & Timber, Inc. v. U.S., 596 F.3d 817 (Fed. Cir. 2010). There a panel of the court adopted a narrow rule seemingly limiting application of the principle to situations where a government action was “specifically targeted” at the contractor or had the effect of taking away one of the benefits that had been promised to the contractor. Although the decision concerned a timber sales contract not a procurement contract, when I wrote it up in the May 2010 Nash & Cibinic Report (24 N&CR ¶ 22), I expressed the fear that the reasoning would be subsequently applied to procurement contracts.
My fear was realized in a construction contract case, Metcalf Construction Co. v. U. S., 102 Fed. Cl. 334 (2011). In that decision, the judge described eggregious conduct on the part of the government officials that would have been held to be a breach of the implied duty of good faith and fair dealing under many earlier cases. However, the judge held that under the Precision Pine standard, the contractor had not proved that the actions were specifically targeted at the contractor. In the February 2012 Nash & Cibinic Report (26 N&CR ¶ 9), I criticized this decision but stated that I believed that even if the decision was affirmed on appeal, most contracting officers would not take this as a signal that the proper way to administer contracts was to abuse the contractor.
Fortunately, a panel of the Federal Circuit has reversed the decision, Metcalf Construction Co. v. U. S., 2014 WL 519596, 2014 U.S. App. LEXIS 2515 (Fed. Cir. Feb. 11, 2014). The court held that the lower court had read Precision Pine too narrowly and that “specific targeting” was only one example of the type of conduct that could constitute a breach of the implied duty of good faith and fair dealing. Importantly, the court also rejected the government’s argument that this “implied duty” only could be found when it was footed in some express provision of the contract. The court concluded that the correct rule was only that the express provisions of a contract had to be examined to ensure that they had not dealt with the conduct of the government; for if they had, they would override the implied duty.
This leaves us in a tenuous position with regard to the views of the Federal Circuit. We have one panel in Precision Pine stating a narrow rule, another panel in Metcalf Construction stating the traditional rule, and a third panel in Bell/Heery A Joint Venture v. U.S., 739 F.3d 1324 (Fed. Cir. 2014), ruling in favor of the government because the contractor had not alleged facts showing that the government had “engaged in conduct that reappropriated benefits promised under the contract” (which is part of the Precision Pine reasoning). Thus, it is difficult to state where the judges of the Federal Circuit stand. Hopefully, the court will agree to take either Metcalf Construction or Bell/Heery to the full court for an en banc review of the issue.
I’ve never been sure why the Department of Justice has so vigorously argued that the government should not be held to the same standards of conduct as a commercial buyer. Of course, persuading the courts and boards that a narrower standard should be applied to the government is a way to win litigated cases. But, in my view, encouraging abusive or non-cooperative conduct hurts the government as much as it hurts its contractors. I have taught for many years that in the long run the government benefits from actions that show industry that it is a fair contracting partner. A line of published judicial decisions that demonstrates that the government is not such a partner is one more of the many messages that tell companies they should sell to the government only when they can find no other customer. Surely, this is not the message that government agencies in need of products and services on the commercial marketplace want to convey to companies that can provide those products and services.
Many years ago when I came to Washington to work in the field of government contracting, I concluded that there was one major advantage to being on the government side of the negotiating table. That advantage was that I was under no pressure to extract money from the contractor by unfair bargaining or unfair contract administration. To me fairness was an integral part of the job of a government employee. I still believe it and teach it. Thus, no matter what the outcome of the good faith and fair dealing litigation, I will continue to urge government employees that fair treatment of contractors is the only way to go.
Ralph C. Nash
When I get older, losing my hair
Many years from now . . . .
When I'm Sixty-Four
John Lennon, Paul McCartney
Shortly after we celebrate our country's independence on July 4, 2013, Wifcon.com will end its 15th year on the internet. With much help from the Wifcon.com community, I've raised a growing teenager. When I started, I was 49 and my hair was so thick that I often shouted ouch or some obscenity when I combed it. Wifcon.com has existed in 3 decades and parts of 2 centuries. During that period, I've updated this site for every work day--except for the week or so when I called it quits. I remember the feeling of relief. I thought it was over. However, many of you convinced me to bring it back. Yes, just when I thought I was out, many of you pulled me back in.
As I mentioned in an earlier post, someone once told me that Wifcon.com was my legacy. I once had great hopes for a legacy. Perhaps, a great saxophone player belting out a solo in front of thousands of fans and seeing them enjoying themselves. Instead, here I sit in my solitude looking for news, decisions, etc., to post to the home page. For many years, my dog Ambrose kept me company. Now, my dogs Blue Jay and Lily stare at me and look for attention. With my sights now set realistically, I accept that Wifcon.com is my legacy. It's the best I could do.
Every now and then, I receive an e-mail from someone thanking me for Wifcon.com. They tell me how it helped their careers. These e-mails keep me and Wifcon.com going.
Send me a postcard, drop me a line,
Stating point of view
Indicate precisely what you mean to say
Yours sincerely, wasting away
Give me your answer, fill in a form
When I'm Sixty-Four
John Lennon, Paul McCartney
The thoughts in these e-mails won't let me quit. I still search each night for something to add to the site in hopes that it will increase your knowledge. If I find something new, I still get excited. Often, it feels like a self-imposed weight around my neck. What started as a release for my imagination has evolved into a continuing and daily addition to the contracting community. In the evenings, it is as if I'm Maillardet's automaton. I head over to my office, sit before the computer, and update. Then I send the updated pages to Virginia where it is accessed from around the world. Maybe I'm addicted to Wifcon.com; maybe I was born with the Wifcon.com gene.
If you haven't added the numbers, I'm 64 now. Wifcon.com and I are showing our age. I can comb the top of my head with my fingers. The ouches and other obscenities caused by my once thick hair are gone. A recent upgrade to the discussion forum requires that I turn the "compatibility mode" off on my browser. In that mode, I realized that Wifcon.com is ugly. I have current software for the needed future redo of this site.
I am Wifcon.com; Wifcon.com is me. It is my legacy and my albatross. As always, thank you for your support.
You'll be older too,
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When I'm Sixty-Four
John Lennon, Paul McCartney
Generally speaking, contractors flow mandatory FAR and DFARS clauses to vendors in a haphazard, incoherent manner with very little updating as changes to clauses occur. Some contractors post a huge list of clauses on their website and refer to them on vendor Purchase Orders (PO's) - telling the vendors they are responsible for complying with the clauses that apply to them. Anybody know a vendor that has the time or inclination to review these lists and determine which clause apply to their purchase order.
Some contractors separate the clauses by $ thresholds. This is helpful because a vendor can easily figure out that the clauses in the $650,000 and above category don't apply to their $2,700 PO. Some contractors include two lists of clauses - one list for commercial items and one list for non-commercial items. This kind of segmentation is helpful also; especially, if the vendor is providing a commercial item and very few clauses actually apply to the PO.
Government auditors are taking shots at contractors about the way they tell vendors which FAR and DFARS clauses apply to a purchase order; but auditor opinions vary greatly.
I would like to hear about methods for clause flow down to vendors that truly meet the requirements of FAR and are relatively easy to update. Does anyone have any suggestions