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Since several of you read my earlier post about management and operating contracts (M&O), I decided to add two more posts. I worked with these contracts in the 1990s and found them fascinating--can you tell? Here is more than a starting point from part of DOE's Acquisition Guide. (Match the number to the FAR) It is the DISCUSSION OF THE ORIGIN, CHARACTERISTICS, AND SIGNIFICANCE OF THE DEPARTMENT OF ENERGY’s MANAGEMENT AND OPERATING (M&O) FORM OF CONTRACT. At the end on p, 12 and all of p. 13 it provides key aspects of DOE's M&O contracts. Read #5 "contractor’s workforce is large, remaining at the site despite change of contractors" Whoa, what's that. That is where my colleague got the idea of M&O contractors as "boarding parties." Usually, these contracts encompass the functions of a small city. Think of the M&O as the election of a new mayor and city coumcil for a small city. The populace remains in the city. When you build a nuke you develop a lot of science as a by-product: DOE's Office of Science and its M&Os, of course the bomb: DOE's National Nuclear Security Administration and its M&Os, a nasty mess around the country: DOE's Office of Environmental Management and its M&Os. Sometimes, I look at the M&O National Laboratories on google maps. Here's a game I sometimes play called Where's the Accelerator. There are at least 2 types--circular and linear with experimental stations attached. Using google maps, can you spot them at Fermilab? (circular) Argonne? (circular) Thomas Jefferson National Lab? (linear) Hint: These are user facilities where members of educational institutions and corporations can run experiments. You will probably find housing facilities for the users. Of course, managed by the M&Os. There may be more than one accelerator at a site. I will add the 3rd post at a later date.

I posted a link to the Department of Energy/National Nuclear Security Administration management & operating contracts on nuclear related work mentioned above on the Home Page. They are performance reviews but the contracts are there. These contracts are somewhat different than typical FAR contracts and they include DEAR clauses. I haven't worked with them in about 25 years. When I first looked at them, I couldn't figure out what they were. Then I read about how they were developed from the Manhattan Project during WWII. It took some time for me to figure them out. I'm posting this because most of you probably have not seen one. This can be part of your education. I don't know how much they've changed over the years. I hope they have for the better. One of my colleagues came up with the term "boarding party" for the actual contractors. I always liked that. Maybe you can figure out why.

I'll add it so we know what is being discussed. The excerpt is on p. 30 of Golden IT, LLC v. U. S. and Spatial Front, Inc., No. 21-1966C, February 4, 2022.  (February 7, 2022) It is in footnote 38 on p. 30 and runs on further. ******** here_2_help: I appreciate you mentioning that bid protests are posted on the Home Page so that others may use them too.

Why not add in a bogus RFP requirement from 1973. From the RFP. Add the 12, 108, and 770 together and you have 890 solid rocket motors for 444 Space Shuttle flights over the Shuttles planned 11 years. From 1981 through 2011 there were 135 Space Shuttle flights that required 270 solid rocket motors. I'll stop here

Last month, I saw another DoD-IG report on TransDigm Group and I thought I ignored it. I didn't and it is on the Home Page. That report is Audit of the Business Model for TransDigm Group Inc. and Its Impact on Department of Defense Spare Parts Pricing (DODIG-2021-043). It went public on 12/13/21. The DoD-IG report that Vern posted was from 2/25/2019 and appears to be part 1 of this effort. I decided to see what TransDigm Group had to say about the latest DoD-IG report and it is: TransDigm Comments on DOD IG Report. dated 12/13/2021. The draft bill that Vern posted is labeled the Second Session of the current Congress. In short, if that bill is/has been introduced it will be in 2022. If it goes nowhere over the next 6 or 7 months watch the next House version of the NDAA for 2023.

This year, I started doing this annual analysis around Christmas. Here is a short recap of what happened with the NDAA. The House passed H. R. 4350 on 9/23/2021 - the House version of the NDAA. The Senate Armed Services Committee introduced S. 2792 on 9/22/2021 in the Senate with a written report. However, the Senate never passed S. 2792. The Senate considered H. R. 4350 from 11/19/2021 unti December 2, 2022 without any further action. Members of the Senate and House Armed Services Committee worked together on their own to come up with an NDAA for FY 2022. S. 1605 was adrift in the Senate and amended with the "agreed to" NDAA for FY 2022. It quickly passed both the House and the Senate. A "Joint Explanatory Statement to Accompany the National Defense Authorization Act for Fiscal Year 2022" was written and S. 1605 states that it has the same force as a "Conference Report." In the 21 years I've been doing this it is only the second time that happened. That's the official story. This is what I think happened--and probably did--after # 3 above. Members of the Senate Armed Services Committee realized that they were unable to amend H. R. 4350, hold a conference with the House to discuss differences between H. R. 4350 and a Senate bill, and pass a conference report in both houses in a couple of weeks. The Senate did collect 945 amendments and dropped them into another amendment called S. Amdt. 3867. S. Amdt 3867 is an unworkable mess. The Senate tried to close the Senator's ability to add amendments on December 2, 2022 --something called cloture--but couldn't get cloture passed in the Senate. They had no bill in the Senate because S. 2792 never passed the Senate, there were already 945 amendments to H. R. 4350, they could'nt end the amendment process and they wanted to get home for the holidays. That is when members of the Armed Services Committees went off the grid and used H. R. 4350 and S.2792 as their starting point and picked and chose amendments they could agree to and added them to the 2 bills. When this was going on some staff were preparing the Joint Explanatory Statement I mentioned above. It is on the House Armed Services web site. At that time, S. 1605 was picked and amended with the "agreement" struck by the members who were off grid. It was agreed by procedure that S. 1605 would pass the House and Senate quickly and it did in time for the holidays. I think that was about December 15, 2021. Since there were things being done concurrently, the Joint Explanatory Agreement appears to have errors by stating that S. Amdt 3867 is the referred to as the Senate "amendment" for legislative history purposes. However, in reality, the S. Rpt. that accompanied S. 2792 was used together with the report that accompanied H. R. 4350 to explain the legislative history. When you look at the individual sections of P. L. 117 - 81 in the left coumn and the legislative history in the right column you will see that S. 2792 and its report is referred to as the Senate Amendment--not S. Amdt 3867. In the end S. 1605--however it was decided to use it as the vehicle for the NDAA--passed the Senate and the House and was signed at the White House to becaome P. L. 117 - 81, the NDAA for FY 2022 . I thought about what part of the legislate history I would use if I argued a point. Since S. 2792 and its report never passed the Senate, I wouldn't use that. I would stick to what is referred to as the "agreement" and stop there. National Defense Authorization Act for Fiscal Year 2022.

“Men must turn square corners when they deal with the Government.” Rock Island A. & L.R. Co. v. United States, 254 U.S. 141, 143 (1920) (Holmes, J.). In this case, the Court is presented with whether Lodge Construction, Inc. (“Lodge”) fraudulently submitted cost claims to the United States." "This case should serve as a cautionary tale to government contractors." Quotes are from the opinion. Lodge Construction, Inc., No. 13-499; 13-800, January 10, 2022

S. 1605 was signed today.

S. 1605, The NDAA Act for FY 2022. I looked at Congress.gov and found that it is still referring users to an outdated bill as the NDAA Act for FY 2022. In fact, the outdated bill is the most viewed by users. As of 12/23/21, S 1605, The NDAA for FY 2022 is now at the White House ready for signing. When you look at S. 1605, it does not look like what it is because of the way it was passed in Congress. It will be signed into law within the next several days. -------------------------- PS: I'm beginning to do the Wifcon analysis now and will be done by New Years Day. Read my past several posts if you are wondering what is current.

This explains part of the process used. The document is datad 12/7/2021

Apparently, the House and Senate Armed Services Committee members (and their staffs) realized they would be unable to complete consideration of the 2 House and Senate versions of the NDAA Act of 2022, hold a conference to iron out difference between the 2 bills, and agree on the conference report. They had less than a month to do that before they left for the calendar year. Instead, some members of the 2 Armed Services Committees and their staffs negotiated the differences between the 2 bills and reached agreement on what the NDAA would look like. Just think of it as a "truce." In one year with a similar situation, a document was written to explain what the committee members agreed to in their truce. That document was called a "Joint Explanatory Statement" Once again the Armed Services members used the JOINT EXPLANATORY STATEMENT TO ACCOMPANY THE NATIONAL DEFENSE AUTHORIZATION ACT FOR FISCAL YEAR 2022. Now the explanatory document was completed on December 5, 2021 before the House and Senate even considered a bill on which to vote. To do it, they found a bill to amend with a substitute, in this case the NDAA for 2022. Agreement had to be reached not to amend the new NDAA as it floated through both houses. The selected bill was S. 1605, to designate the National Pulse Memorial located at 1912 South Orange Avenue in Orlando, Florida, and for other purposes. That explains the S. 1605 bill number. Both Houses agreed to the NDAA for 2022 as explained in my earlier post and the effective legislative history is the Joint Explanatory Statement. I found a nice explanation of this process in an earlier effort and I wil post it later if I find it again. I assume that the White House has agreed to all of this to make the actual signing of the NDAA of 2022 a Public Law, without a veto, soon

To get the NDAA approved quickly, S. 1605 was used as a vehicle. S. 1605 was a bill to designate the National Pulse Memorial located at 1912 South Orange Avenue in Orlando, Florida, and for other purposes For our purpose, it is the National Pulse Memorial bill. On December 7, 2021, the National Pulse Memorial bill was considered and amended by the House with the National Defense Authorization Act for Fiscal Year 2022 as a substitute. S. 1605 was passed on December 7, 2021. On December 15, 2021, S. 1605 passed the Senate without amendment. Since the House and the Senate both approved S. 1605 without any disagreement there will not be a conference report. I expect an explanation for the various provisions to come soon.

Please read Commercial Items: Confusion In Court.

This week, I noticed that GAO had published its FY 2021 annual report on its bid protests. So, I planned to update Wifcon's information. Then I realized, Wifcon's data had 2 years missing--2020 and 2006. I updated those last night. Just now, I found a few formatting issue I need to correct. However, we are talking about 25 years of information-- 3 decades. The fiscal year numbers at the top of each column are links to GAO's annual reports so you can read them, if you want. FY 2002 through 1997 do not have links. Back then, GAO's annual reports provided limited data that did not include annual statistics. I remember contacting GAO's Bid Protest Unit in the late 1990s to obtain the early year's statistics from one of the attorneys. In short, to my knowledge, there is no other place you can find 25 years of data. I've tried to include footnotes explaining key points about the statistics. Here is a warning. Do not look at one year's data, look for trends. Another thing. GAO counts protests as B-numbers. As a result, a published decision may include several B-numbers. Footnote 1 explains that. Here you go: Comptroller General Bid Protest Statistics - 25 Years of Fiscal Year Data. There are 2 pages of data: 1 for 2021 through 2010 and another from 2009 to 1997. To get to the 2009 through 1997 data you need to click Go To Statistics for FYs 2006 through 1997.

by Vernon J. Edwards The Nash & Cibinic Report Courtesy of Thompson Reuters Published with permission of the author The Federal Acquisition Regulation does not define strength. A definition of weakness was added to the FAR by the FAR Part 15 Rewrite, Federal Acquisition Circular 97-02, 62 Fed. Reg. 51224, 51233 (Sept. 30, 1997). FAR 15.001 thus defines weakness: “Weakness” means a flaw in the proposal that increases the risk of unsuccessful contract performance. A “significant weakness” in the proposal is a flaw that appreciably increases the risk of unsuccessful contract performance. So a weakness is a “flaw,” which the OXFORD DICTIONARY OF ENGLISH defines as “a mark, blemish, or other imperfection which mars a substance or object.” That clears things up. And thus we suppose that a strength is a perfection that reduces risk and a significant strength is one that reduces risk appreciably. FAR 15.001 also defines deficiency: “Deficiency” is a material failure of a proposal to meet a Government requirement or a combination of significant weaknesses in a proposal that increases the risk of unsuccessful contract performance to an unacceptable level. That definition, also added by the FAR Part 15 Rewrite, replaced the definition that had been in FAR 15.601, which was: Deficiency, as used in this subpart, means any part of a proposal that fails to satisfy the Government’s requirements. The new definition muddied up that simpler definition by adding the phrase “a combination of significant weaknesses,” which raises all kinds of questions. (One could base a Master’s thesis or perhaps even a Ph.D. dissertation on the crummy definitions in the FAR.) (November 2021) Please Read: Postscript: Source Selection Decisions.

A Primer On Source Selection Planning: Evaluation Factors And Rating Methods

SCORING OR RATING IN SOURCE SELECTION: A Continuing Source Of Confusion by Vernon J. Edwards The Nash & Cibinic Report Courtesy of Thompson Reuters Published with permission of the author Two protest decisions show that some Contracting Officers do not understand the difference between evaluating proposals and scoring or rating them and do not understand the proper role of scores or ratings in contractor selection processes. In Beta Analytics International, Inc. v. U.S., 67 Fed. Cl. 384 (2005), declaratory relief ordered, 2005 WL 3150612 (Fed. Cl. Nov 23, 2005), 47 GC ¶ 524, the U.S. Court of Federal Claims decided a postaward bid protest in favor of the plaintiff because the source selection official relied on unsupported average scores in making her decision. In YORK Building Services, Inc., Comp. Gen. Dec. B-296948.2, 2005 CPD ¶ 202, 47 GC ¶ 537, the Comptroller General sustained the protest because the source selection official relied on unsupported total scores to make a decision that was inconsistent with the terms of the Request for Proposals.

Contract Line Items by Vernon J. Edwards Briefing Papers Courtesy of Thompson Reuters Published with permission of the author

It looks like Leonard may have some company. Navy Officer Turns Witness in Bribery Case That Echoes 'Fat Leonard' Scandal.

Wow. I missed a couple of years there. Wifcon.com is now 23.

Patrick: I did a google search also. This study dates the DoD WGL system back to 1964 and offers some interesting footnotes. Pricing of contracts was a big issue in the early 1960s. Check the table of contents. Performed under contract with the Air Force by The Rand Corporation: The Impact of the Weighted Guidelines Profit System on Defense Contract Fees.

The Acquisition Research Program of the Naval Postgraduate School, publishes a review called The Crow's Next which contains A Quarterly Review of Research & Activities. So far, it appears there are 2 issues. The 2 issues below include papers and thesis reports. There are plenty of papers. Maybe, you can find something of interest. Issue 1: December 1, 2020. Issue 2: April 2021.

Ahh, our 3 central suppliers with Moe sitting this one out. Curly and Larry got entangled with two forums for protest--an administrative body (Abbot) and the court system (Costello). Of course, that's not enough. Abbot's second-guessers who are called evaluators stirred things up too. On p. 3, the judge described an agency action as: That request added bedlam to already existing chaos.

Judge David A. Tapp, Court of Federal Claims.

Vern: I agree that OFPP is dead but it still has it's law and things that the Administrator is charged with doing. I think it's good that you added an item that shows what OFPP might have been. Since few of us were around for the issuance of the Commission on Government Procurement Report, that report listed OFPP as its first recommendation. If anyone wants to look at the way contracting was in 1972, recommendations to improve it then, and think about where contracting is now, the Commission report is at the bottom of this page. PS: I don't know if it is real or not but I dreamt there is a grinning person at the front door of OMB with a stamp that is pressed on the hand of every new Administrator of OFPP when they first enter OMB. The stamp reads "Former Administrator of OFPP" and is shaped like a ticket.