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  • Vern Edwards

    DOD's Section 809 Advisory Panel

    By Vern Edwards

    DOD has announced the names of the 18 appointees to its Section 809 Advisory Panel on Streamlining and Codifying Acquisition Regulations. You can see their names and qualifications here: http://www.dau.mil/sec809/default.aspx. The panel's congressionally mandated mission is as follows: I have to say that I'm disappointed by the appointments. It's not that the appointees are not qualified or that I object to anyone's inclusion. They're distinguished and eminently qualified. The problem is that, unless I'm mistaken, they're old. Yes, I said old. Was there not even one GS-15 or SES in their early 30s with recent working-level experience who is sufficiently well qualified to provide advice and make recommendations for the amendment and repeal of regulations? Not one person in their late 20s or early 30s? Not one? The panel is comprised entirely of people whom I'd call, no offense intended, the usual suspects. I know some of them and like the ones I know, but that makes no difference. Look, I don't expect much. The panel will work hard and produce a glossy report in 2018 (2018???!!!--why so far off?) that will be much discussed, I'm sure, for at least a month, maybe even two. We've had a lot of reform panels over the years and, ultimately, their work hasn't really come to much. (Anyone remember the SARA panel?) Oh, the 809 Panel is very likely to recommend at least some changes that will be made, but they won't change the system's ultimate character and outcomes, because reforms rarely address the system's fundamental problems. It's been more than 20 years since the Federal Acquisition Streamlining Act of 1994, yet I just saw a 47-page solicitation for 12 sleeper sofas, a buy that’s probably worth less than $18,000, yet incorporates something like 200+ pages of text by reference. Any little money saved by competition will be consumed by the cost of the process. What we need from the 809 Panel is a final report that shows just how looney the system has become. We also need a final report that makes really radical recommendations. How about taking DOD out of the FAR system and letting it go back to having its own Defense Acquisition Regulation? (The two-council system is a mess.) How about freeing the Defense acquisition regulations from Paperwork Reduction Act reviews? (Congress and the President are imposing most of the paperwork, so what’s the point?) How about raising the simplified acquisition threshold to $1 million and taking simplified acquisition procedures out of the regulation and putting them into a separate guidebook so people doing simplified will be less regulation-obsessed? How about exempting simplified acquisitions from some socio-economic laws and programs? How about raising the dollar threshold for the submission of certified cost or pricing data to an amount at which the likely benefit will exceed the requirement's costs. ($50 million is about right. Maybe even $100 million.) How about applying the cost accounting standards only to contracts under which there is a likelihood of requests for equitable adjustment and significant claims worth more than, say, $5 million? How about recommending that certain contractor selections be based on qualifications, rather than technical proposals and price, and followed by unrestricted, in-depth, one-on-one negotiations (not "discussions") with the selectee? But I fear that such a distinguished panel will consider such recommendations to be too far out. Only the young would be so radical and indecorous. The future belongs to the young. It's they who will be tomorrow's acquisition (and national) leaders, and so it’s they who should take the lead in recommending changes. The folks of my generation have had our chances. We need to step aside and lend the young a hand. The old heads need to be there mainly to tell the young about their experiences, how they’ve been there and done that and why it didn't work the last few times, so that the young can go forward without making the same mistakes. (It would be trite at this point to quote Bob Dylan, so I won't do it. But most of you know the song I'm thinking about.) I wish that Deirdre Lee, the panel chair, would prevail upon DOD to find and appoint at least two young radicals to the panel--persons in their late 20s or early 30s. I wish that the panel would actively seek the ideas and opinions of today's young chiefs of contracting offices and section chiefs. I wish that they'd hand over the task of writing the final report to young thinkers and firebrands.  I understand how the system works and why it works the way it does. Sadly, I do understand. I’m not naïve. But isn’t it time for subversive leadership from the old? What will they have to lose in 2018? Why not let the young set Congress’s hair on fire? It’s time, at long last, long past time, for the old timers to bring people to the front who don't care how and why the system works the way it does, who want to take a new path, and who don’t mind kicking dirt on some shoes. It's long past time.  
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  1. After September 30, 2016, unsuccessful offerors will lose the ability to challenge some task order awards issued by civilian agencies.

    With the House of Representatives and Senate at odds over the extent to which task orders should be subject to bid protests in the first place, it’s unclear whether that protest right will be restored.

    Under the Competition in Contracting Act, a protest challenging a task order award issued by a civilian agency is not permitted unless it falls under either of the following exceptions:

    (A) the protest alleges that the order increases the scope, period, or maximum value of the contract under which the order was issued; or

    (B) the protest challenges an order valued in excess of $10 million.

    41 U.S.C. § 4106(f)(1).

    The statute, however, provides that the second exception—allowing protests challenging orders valued at greater than $10 million—expires on September 30, 2016. After that date, an offeror’s ability to protest a task order issued by a civilian agency will be limited to only those protests alleging that the order increases the scope, period, or maximum value of the underlying contract.

    It is important to note that this expiration applies only to task orders issued by civilian agencies; offerors can still challenge task orders issued by the Department of Defense, so long as the awards meet the same $10 million minimum. See 10 U.S.C. § 2304c(3)(1).

    Congress has started discussing how to address this issue. But the House and Senate remain worlds apart: the House proposes to allow civilian task order protests again, while the Senate wants to do away with task and delivery protests at GAO altogether and instead require the task and delivery order ombudsman to resolve any complaints. H.R. Rep. No. 114-537, § 1862 (p. 348)S. 2943, 114th Cong. § 819.

    In fiscal year 2015 (the last year for which statistics are available), GAO closed 2,647 cases; only 335 of them arose from GAO’s special task order jurisdiction. And as we have reported, 45% of protests resulted in a favorable outcome for the protester, either through a formal “sustain” decision or by way of voluntary corrective action. It would be unfortunate to permanently eliminate GAO’s ability to decide protests regarding larger task orders when the statistics indicate that such protests aren’t pervasive and are often meritorious.

    So what’s the bottom line? Unless Congress acts, unsuccessful offerors in civilian task order competitions will be able to protest only in very limited circumstances; these offerors must instead bring their complaints before the agency’s task order ombudsman. In the meantime, affected offerors might consider discussing the issue with their elected representatives.


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  2.  
    The Environmental Protection Agency (EPA) has issued a final rule regarding self-certification for Disadvantaged Business Enterprises (DBE) in procurements under EPA financial assistance agreements, which will be effective on October 26, 2016 if no adverse comment is received. If an adverse comment is received by the EPA, the rule will be withdrawn. However, the EPA expects to receive no adverse comments.

    Current Major Components of the EPA’s DBE Program

    EPA’s DBE Program was first implemented through 40 CFR part 33 on March 26, 2008 with four major components program: DBE Certification, Negotiating Fair Share Goals, Good Faith Efforts, and Reporting Accomplishments. Currently, the DBE Certification process requires a Minority Business Enterprise (MBE) or Woman Business Enterprise (WBE) to be certified as such by an appropriate agency (federal, state, locality, Indian Tribe, or qualifying independent private organization). The other current components of the program require that goals are established with the EPA, that there is an opportunity to compete for procurements, and that a report is sent to the EPA on the success of the program with respect to MBEs & WBEs.

    Key Changes

    This final rule makes three key changes to the EPA’s DBE program. The first is the creation of a self-certification platform. The second is the increase to the threshold to be exempted from negotiating fair share objectives from $250,000 to $1,000,000. The third and final change is that the frequency of reporting to the EPA has been revised to annually and the threshold of $150,000 is now codified. There are additional minor changes in the Final Rule, but the three above will have the most impact on an organization.

    Self-Certification Impact on Affected Organizations

    If your firm wishes to take advantage of this revision and is a qualifying organization, you will be able to self-certify through the Small Business Vendor Profile System at www.epa.gov. You will be required to provide the appropriate information and confirm that the eligibility requirements have been met. After certifying that you have met the eligibility requirements, no EPA review will be required. This change will significantly decrease the time it takes for organizations to be certified as MBEs or WBEs, as organizations will no longer be required to obtain other qualifying certification from the government. However, self-certification through the EPA’s DBE Program under the new rule will not be recognized by other organizations and such certification will remain valid only 3 years. Therefore, qualified organizations will continue to have an obligation to re-register to maintain their status as an MBE or WBE. Firms that choose to certify through this option will be published on the Office of Small Business Program’s web site, and you should always review the final rule for additional impacts it may have on your organization.

    About the Author

    Colin Johnson
    Contracts Manager

    Colin Johnson is a Contracts Manager who focuses on business development and federal contracts management. His expertise is in preparing quotes and responses for both government and commercial entities for training and legal support services.

    The post EPA Issues Final Rule on Self-Certification for Disadvantaged Business Enterprises appeared first on Centre Law & Consulting.


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  3.  

    DOD has announced the names of the 18 appointees to its Section 809 Advisory Panel on Streamlining and Codifying Acquisition Regulations. You can see their names and qualifications here:

    http://www.dau.mil/sec809/default.aspx.

    The panel's congressionally mandated mission is as follows:

    Quote

     

    Section 809 of the 2016 National Defense Authorization Act established the Advisory Panel on Streamlining and Codifying Acquisition Regulations (809 Panel) to review the acquisition regulations applicable to the Department of Defense with a view toward streamlining and improving the efficiency and effectiveness of the defense acquisition process and maintaining a defense technology advantage. The panel is charged with making recommendations for the amendment or repeal of such regulations that the panel considers necessary, as a result of such review, to: 

    ·         Establish and administer appropriate buyer and seller relationships in the procurement system 

    ·         Improve the functioning of the acquisition system

    ·         Ensure the continuing financial and ethical integrity of defense procurement programs 

    ·         Protect the best interests of the Department of Defense

    ·         Eliminate any regulations that are unnecessary for the purposes described

    I have to say that I'm disappointed by the appointments. It's not that the appointees are not qualified or that I object to anyone's inclusion. They're distinguished and eminently qualified. The problem is that, unless I'm mistaken, they're old.

    Yes, I said old.

    Was there not even one GS-15 or SES in their early 30s with recent working-level experience who is sufficiently well qualified to provide advice and make recommendations for the amendment and repeal of regulations? Not one person in their late 20s or early 30s? Not one? The panel is comprised entirely of people whom I'd call, no offense intended, the usual suspects. I know some of them and like the ones I know, but that makes no difference.

    Look, I don't expect much. The panel will work hard and produce a glossy report in 2018 (2018???!!!--why so far off?) that will be much discussed, I'm sure, for at least a month, maybe even two. We've had a lot of reform panels over the years and, ultimately, their work hasn't really come to much. (Anyone remember the SARA panel?) Oh, the 809 Panel is very likely to recommend at least some changes that will be made, but they won't change the system's ultimate character and outcomes, because reforms rarely address the system's fundamental problems. It's been more than 20 years since the Federal Acquisition Streamlining Act of 1994, yet I just saw a 47-page solicitation for 12 sleeper sofas, a buy that’s probably worth less than $18,000, yet incorporates something like 200+ pages of text by reference. Any little money saved by competition will be consumed by the cost of the process.

    What we need from the 809 Panel is a final report that shows just how looney the system has become. We also need a final report that makes really radical recommendations. How about taking DOD out of the FAR system and letting it go back to having its own Defense Acquisition Regulation? (The two-council system is a mess.) How about freeing the Defense acquisition regulations from Paperwork Reduction Act reviews? (Congress and the President are imposing most of the paperwork, so what’s the point?) How about raising the simplified acquisition threshold to $1 million and taking simplified acquisition procedures out of the regulation and putting them into a separate guidebook so people doing simplified will be less regulation-obsessed? How about exempting simplified acquisitions from some socio-economic laws and programs? How about raising the dollar threshold for the submission of certified cost or pricing data to an amount at which the likely benefit will exceed the requirement's costs. ($50 million is about right. Maybe even $100 million.) How about applying the cost accounting standards only to contracts under which there is a likelihood of requests for equitable adjustment and significant claims worth more than, say, $5 million? How about recommending that certain contractor selections be based on qualifications, rather than technical proposals and price, and followed by unrestricted, in-depth, one-on-one negotiations (not "discussions") with the selectee?

    But I fear that such a distinguished panel will consider such recommendations to be too far out. Only the young would be so radical and indecorous.

    The future belongs to the young. It's they who will be tomorrow's acquisition (and national) leaders, and so it’s they who should take the lead in recommending changes. The folks of my generation have had our chances. We need to step aside and lend the young a hand. The old heads need to be there mainly to tell the young about their experiences, how they’ve been there and done that and why it didn't work the last few times, so that the young can go forward without making the same mistakes. (It would be trite at this point to quote Bob Dylan, so I won't do it. But most of you know the song I'm thinking about.)

    I wish that Deirdre Lee, the panel chair, would prevail upon DOD to find and appoint at least two young radicals to the panel--persons in their late 20s or early 30s. I wish that the panel would actively seek the ideas and opinions of today's young chiefs of contracting offices and section chiefs. I wish that they'd hand over the task of writing the final report to young thinkers and firebrands. 

    I understand how the system works and why it works the way it does. Sadly, I do understand. I’m not naïve. But isn’t it time for subversive leadership from the old? What will they have to lose in 2018? Why not let the young set Congress’s hair on fire?

    It’s time, at long last, long past time, for the old timers to bring people to the front who don't care how and why the system works the way it does, who want to take a new path, and who don’t mind kicking dirt on some shoes.

    It's long past time.

     

  4. A key challenge to improving acquisition is defining what good contracting really is—and the proper skill sets necessary for those working within it. There are many different views on this topic that show up in various legislation, course curricula, job descriptions, and a variety of professional certifications across public- and private-sector agencies, firms, and associations. These include large government contractors; Defense Acquisition University; Federal Acquisition Institute; colleges and universities with supply chain, contract management, and business programs; corporate training criteria; and all manner of nonprofit standards and certifications. Unlike many other professions, there is no universally agreed upon “Good Housekeeping Seal of Approval” that gives those working in or contemplating entry into contracting a universally adopted set of competencies for today’s acquisition manager. Instead, “good contracting” and its skill sets are defined (if at all) piecemeal, employer by employer, segmented by type and size of organization.

    However, there are models in use today that could be a starting point. For example, the Volcker Alliance recently published a list of fundamental skills and experience required for those responsible for public procurement, based on interviews with procurement officials and academic experts, leveraging their expertise to develop a competency model and evaluate the current public procurement workforce against those competencies. 

    Very close to this model, with perhaps more depth and historical iterations, is the Contract Management Body of Knowledge (CMBOK), maintained by the National Contract Management Association. The initial compilation began with a job analysis of functions performed in public- and private-sector contracting. Now in its fourth edition, the CMBOK is a comprehensive standard that includes definitions from within the field, practices and processes, and the procedural steps applicable to contract management generally and to the commercial and government sectors in particular.

    Other organizations related to the field offer certifications based on smaller standards or high-level competency models. How difficult would it be to align these models more closely, recognizing their similarities? Are the basic principles of contract/procurement/supply chain/acquisition so unique to each sector, devoid of any overlap or redundancy? Or is it simply the case that depending on where the function is performed, some competencies require a greater or lesser degree of knowledge, experience, complexity, emphasis, or prominence?

    As is often the case, most organizations consider themselves unique, different, one of a kind, etc. However, aren’t the skill sets required for effective acquisition uniform, regardless of sector or employer? Leveraging the overwhelming numbers working in this field (known as strategic sourcing when involving purchasing power) could create a large, influential “market” of existing and potential professionals. This would drive competency-based education and training at the university level and offer lucrative, flexible career opportunities to entice people into the field earlier and convince them to stay longer.

    At the federal level, this might limit the routine attempts to legislate competencies and skill sets only pertinent to the U.S. government, (leaving large and small organizations throughout the nation to figure it out for themselves, depending on a smorgasbord of competency models to choose or ignore).

    An agreed to standard can emanate from existing competency models and professional communities, with the leadership of existing professionals in the field and existing professional organizations. It’s likely that some could view such collaboration as a threat, affecting existing business models and profit centers.  However, aligning the profession together will bring far greater improvement and efficiencies to private and public sector costs of doing business, so the sooner the process begins, the sooner the fruits of this labor will be realized.


    Michael P. Fischetti
    Executive Director
    National Contract Management Association

     

  5. It’s time we rethink our approach to the training problem. Our traditional approach is to dictate a blueprint of training classes that must be followed in order to obtain prescribed levels of certification. To put it in acquisition terms, we’ve been using a design specification. What if we were to use a performance specification instead? What might that look like? Before answering these questions, we should identify what it is we are trying to achieve with training.

    The purpose of training is to make the trainee proficient in performing one or more defined learning objectives by means of specialized instruction and practice. A learning objective consists of three parts—an action, a condition, and a standard. For example, someone new to federal contracting will likely receive training to select FAR provisions and clauses (action) given a set of facts about an acquisition and access to the FAR (condition) (the implied standard would be “correctly”). It follows that if an individual already behaves in the prescribed way under the prescribed conditions to the prescribed standard, then training would be unnecessary for that individual—they’ve already attained the learning objective.

    Under the “design specification” training model that we currently use, there is an implied assumption that an individual cannot attain the requisite learning objectives without following the prescribed blueprint of training classes. Further, there is no method of demonstrating the attainment of the requisite learning objectives prior to the prescribed training classes. As a result, everyone must take the required training classes, regardless of individual necessity. Considering the resources involved in carrying out such a program, this is an expensive proposition.

    While the implied assumption of the “design specification” training model may prove true in some cases, a more reasonable assumption would be that some individuals need to follow the prescribed training blueprint and some do not. Those that do not would include those that have already attained the requisite learning objectives by other means and those that could without following the prescribed training blueprint. Thus, the challenge would be to identify those that don’t need a particular training class before requiring their attendance at the training class.

    What if we borrowed the thinking behind performance-based acquisition and applied it to the training problem (i.e., a “performance specification” training model)? That is, instead of dictating how the workforce is to attain requisite learning objectives, we specify the requisite learning objectives (performance outcomes) and method of assessment, and let the workforce decide how they are going to attain them. Some workforce members may choose a program of self-study, others may study in informal groups, some contracting offices may develop their own ongoing training programs, etc. Still others may choose to follow the existing blueprint of training classes. Regardless of how one attains the requisite learning objectives, all are held to the same standard using the same method of assessment.

    For an illustration of how such a model might look, consider the profession of actuarial science. Beanactuary.org contains the following description:

    Like other top-ranked professions (such as law and medicine), one must pass a set of examinations to achieve professional status as an actuary. Unlike other professions, in actuarial science you’ll have the opportunity to work as an actuary while completing the examination process—employers often allow study time during working hours, pay exam fees, provide internships, and even award raises for each exam passed. Though, to get the best start on a rewarding career, many soon-to-be actuaries begin taking exams while still in college. Of those that do, most achieve associateship in three to five years. All candidates acquire a core set of knowledge from required preliminary exams. The preliminary exams and Validation by Educational Experience requirements are the starting points for an actuarial career.

    To attain an “Associate of the Society of Actuaries” (ASA) designation from the Society of Actuaries, one must pass exams in probability, financial mathematics, models for financial economics, models for life contingencies, and construction and evaluation of actuarial models. In addition, there is one required e-Learning course and a required one-day seminar in professionalism. After attaining the ASA designation, one typically pursues a “Fellow of the Society of Actuaries” (FSA) designation within one of six specialties: corporate finance and enterprise risk management, quantitative finance and investment, individual life and annuities, retirements benefits, group and health, and general insurance. To attain the designation, the FSA candidate must take 3-4 more exams unique to the specialty, complete four e-learning courses, and attend a three-day case-based fellowship admissions course that requires each candidate to deliver an oral presentation on a topic within the field. In case you weren’t keeping track, that’s a total of four days of required attendance in classrooms to achieve the highest designation in the field. In contrast, DoD contract specialists must attend 32 days of classroom training to attain the lowest level of certification.

    What if to attain level 1 certification in contracting, one had to pass exams in, for example: acquisition planning, contracting methods, contract types, socioeconomic programs, and contract administration, and attend a one-day seminar on ethics? After level 1, contract specialists would choose a specialty in which they would pursue Level 2 certification. Specialties would be, for example, major system acquisition, research and development contracting, construction and A/E contracting, service contracting, IT acquisition, acquisition of commercial items, contract administration, etc. To attain Level 2 certification, contract specialists would have to pass a series of exams unique to that specialty. For example, to attain Level 2 certification in service contracting, there would be exams on specification of service requirements, source selection for services, pricing services, and service contract administration. There could also be a Level 2 admissions course where the candidate would have to submit and present a paper on a topic related to their specialty.

    If nothing else, use of the performance specification training model would cost less than the design specification model currently in use. I would go as far as to say that, on the whole, the workforce would be at least as competent as it is now.

    What’s your opinion? We’d like to know.

  6. Had you ever speculated on why April Fools’ Day seems to be such an important day for federal acquisition? After all, consider some of the regulatory and policy issuances on that day:

    • The Federal Acquisition Regulation (FAR) became effective on April Fools’ Day (1984).

    • The Federal Aviation Administration became exempt from the FAR on April Fools’ Day (1996).

    • The Office of Federal Procurement Policy (OFPP) memorandum on “Protests, Claims, and Alternative Dispute Resolution (ADR) as Factors in Past Performance and Source Selection Decisions” was issued on April Fools’ Day (2002).

    • Army Federal Acquisition Regulation Supplement (AFARS) Revision #25 was issued on April Fools’ Day (2010).

    • FAR Case 2010-015 on the Women-Owned Small Business (WOSB) Program was published in the Federal Register on April Fools’ Day (2011).

    No doubt a little research would provide a number of additional examples.

    Frankly, if it were me, April Fools’ Day would probably be the last day that I would pick for issuing important regulations or policy statements. That is one day that I would avoid like the plague. [Note: The last statement is not technically correct, I would go to greater extremes to avoid the plague than to publish an acquisition policy or procedure on April Fools’ Day.] Why not just wait a day, and avoid all the innuendo and snickering? After all, consider, April has 29 other days that are perfectly suitable for issuing regulations, policies, procedures, guidance and information.

    Comparison of Major Contract Types

    For example, on Monday, April 25, 2016, the Defense Acquisition University/Defense Systems Management College updated the Acquisition Community Connection with a revised version of its Comparison of Major Contract Types (i.e., Comparison of Major Contract Types - April 2016). [For those who would like a direct link: https://acc.dau.mil/CommunityBrowser.aspx?id=214513.] The new version better aligns with the terminology in the Contract Pricing Reference Guides, updates the charts on the reverse, and adds a chart on “Achieving a Reasonably Challenging but Achievable (RCA) Target Cost,” one of topics discussed extensively in the new Guidance on Using Incentive and Other Contract Types.

    Over the years, various versions of the “Comparison” have been fairly popular (i.e., 94,863 Page Views and 80,840 Attachments Downloaded. Although, given the number of personnel in the Defense Statutory Acquisition Workforce Contracting Career Field, 29,690 as of the 2nd quarter of 2015, those Lifetime Activity numbers may not be all that high, relatively speaking.

    The April Fools’ Day Announcements for 2016

    So, it can be done. However, this April Fools’ Day (2016) Defense Procurement and Acquisition Policy (DPAP) elected to issue two important pieces of procedures/guidance to the Defense Statutory Acquisition Workforce:

    • Guidance on Using Incentive and Other Contract Types (April 1, 1016).

    • Department of Defense Source Selection Procedures (SSP) (April 1, 1016).

    The Guidance

    Both documents have their warts. For instance, the Guidance incorrectly identifies one of the two statutory references for limitations on negotiation of price or fee. The good news is that thee one applicable to the DoD was identified correctly. Running the Spelling and Grammar checker one last time would not have been amiss.

    Warts aside, the results of this Better Buying Power (BBP) are somewhat disappointing. The Specific Action in the USD(AT&L) memorandum “Implementation Directive for Better Buying Power 2.0 - Achieving Greater Efficiency and Productivity in Defense Spending” was, “Director, DP will provide a draft policy guidance document on the use of incentives in contracting to the BSIG for review by July 1, 2013. The starting point for this document will be the DoD and NASA Guide, “Incentive Training (sic) Guide,” originally published in 1969.”

    For those of you unfamiliar with the Incentive Contracting Guide, it was the last of a number of such guides published in the 1960s. That particular version of the Guide was 252 pages. By comparison, the new Guidance is 41 pages. About 40 % of the Guidance is devoted to negotiation of fixed-price incentive (firm target) (FPIF) contracts in a sole-source environment a discussion of Reasonably Challenging but Achievable Target Cost (RCA), which go hand-in-hand. The coverage for Time and Materials/Labor Hour (T&M/LH) Contracts amounts to a paltry nine (9) lines. Ask yourself these two questions, “How many sole-source FPIF contracts does the Department award? If ‘T&M is the least preferable contract type,’ where should the emphasis have been placed?”

    For those of you who need guidance on structuring multiple incentive contracts the DOD and NASA Guide: Incentive Contracting Guide 1969 may be a better bet than the new Guidance. The good news is that it is still available on the Defense Acquisition University’s Acquisition Community Connection. [For those who would like a direct link: https://acc.dau.mil/CommunityBrowser.aspx?id=189615.]

    The Procedures

    The updated Source Selection Procedures are more than 505 longer than the previous version. The Procedures would have benefited from fact checking, copy editing and proof reading. Another warts issue.

    Warts aside, for those of you who will be involved in DoD source selections that meet the thresholds in the Procedures, you will want to give it a thorough read. Among other things, you will see some new descriptions of adjectival ratings and a new source selection procedure in APPENDIX B, “TRADEOFF SOURCE SELECTION PROCESS: SUBJECTIVE TRADEOFF AND VALUE ADJUSTED TOTAL EVALUATED PRICE (VATEP) TRADEOFF.” The latter came about as the result of USD(AT&L) memorandum “Implementation Directive for Better Buying Power 2.0 - Achieving Greater Efficiency and Productivity in Defense Spending.” Under the heading of Better define value in “best value” competitions there was a Specific Action, “Director, DP will review the ‘Process Manual’ developed by the joint Service team led by the Air Force and present a recommendation for adoption with any recommended changes to the BSIG by July 1, 2013.” You need to read the entire section to understand the direction. No doubt you will see a good deal of discussion about VATEP percolating up.

    Understand that although the Guidance and Procedures were issued on April Fools’ Day, they are no joke. Read them carefully, and implement them wisely.

  7. 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:

    1. failure to follow the evaluation criteria (listed 3rd in FY 2015 and 1st in FYs 2014 and 2013).
    2. unreasonable cost or price evaluation (listed 1st in FY 2015 and 4th in FY 2013) and
    3. inadequate documentation of the record (listed 4th in FY 2015 and 2nd in FY 2013)
    4. unequal treatment of offerors (listed 4th in FY 2014 and 3rd in FY 2013)
    5. 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.

  8. 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

  9. 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,

    And if you say the word,

    I could stay with you.

    When I'm Sixty-Four

    John Lennon, Paul McCartney