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Everything posted by bob7947
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I was thinking this phrase comes from another phrase "two bites at the apple." My memory is telling me that may come up in sealed bidding. A bid, unlike an offer is meant to be final. You don't get a second bite at it. GAO uses the same logic as in "claim preclusion." They just don't call it that (at least I never noticed it.) So, where does "two bites at the apple" come from in a judicial proceeding?" I looked that up. "The first use of “two bites at the apple” in a judicial opinion did not come until the 1922 case of McCoy v. Tolar, in which the Supreme Court of Mississippi held that a party was not entitled to a new trial just because they had failed to offer available proof at the first trial." (Source: Noah Chauvin's How Lawyers Eat Apples.) There you are: Legal theory is based, in some part, on idioms.
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What did I do in Huntsville, Wifcon? For the 3 months in 1974 that I was there, I worked, drove around the Huntsville area in my 1971 240Z and began collecting and reading books. I'm looking at one of the those books now. It's still in my library: Will Rogers, The Man and His Times by Richard M. Ketchum. One of my colleagues from Atlanta took me to see "Contractors Row," in Huntsville which is a group of federal contractors and subcontractors lined up together on the same street. Then there was the French kid selling peanuts in one of the nearby shopping malls. Me with a Philadelphia accent and him with a French one. I bought a bag of the peanuts. The SRM Contractor Selection The Solid Rocket Motor (SRM) solicitation was for a Cost-Plus-Award-Fee procurement and the offerors in the table below were ranked according to technical factors in the following order. Although, the first three offerors were rated very good the numerical score favored Lockheed by 4 points. However, the Source Evaluation Board (SEB) evaluated Thiokol as the lowest most probable cost performer by $122 million on this estimated $800 million procurement. The SEB submitted its written report to the NASA Administrator who was the Source Selection Official (SSO) Score Overall Adjective Rating Lockheed 714 Very Good Thiokol 710 Very Good UTC 710 Very Good Aerojet 655 Good After selecting Thiokol, the SSO issued a selection statement that read A protest was inevitable and Lockheed protested. My Work Evaluating Offerors' Proposals and NASA's Evaluation As I look back now, I believe my 3 months in Hunstville was supposed to be little more than a learning experience or a training exercise. GAO was big on getting its auditors to experience field work and this was problably my chance. I had graduated from college in May 1971 and now I was in Huntsville in the Spring of 1974 effectively delaying the Space Program. GAO took pride in calling itself Congresses' Watchdog. With my lack of experience I, at best, was a Watchpuppy. In the beginning, I didn't know what a work breakdown structure (WBS) was nor did I know how a learning curve worked. And I surely didn't know how to build a solid rocket motor. By the end of my stay in Huntsville, I had memorized every WBS of manufacturing labor in both Thiokol's and Lockheed's proposals, understood Lockheed's Best & Final Offer with its troubling and unsupported learning curve projection, and knew enough to run the other way as fast as I could if someone mentioned ammonium perchlorate in my presence. Each member of our small audit team had a section of the offerors' proposals to study. I had to study the manufacturing labor hours section of the two proposals and then NASA's evaluation of them. In studying the two proposals, I noticed that one offeror presented manufacturing hours and quality assurance hours separately and the other presented them as one. However, they came out roughly the same. When I looked at NASA's evaluation of the offerors' presentation of labor hours, there was no mention of the differences. I was looking for precision and there wasn't any. After I finished my analysis, my Audit Manager from Washington arrived for my presentation to NASA's evaluators. I discussed in detail, from the smallest WBS to the largest, what the NASA evaluators had missed. In the end, I told the NASA evaluators they had compared apples to oranges in their evaluation. Here is what GAO wrote in its bid protest decision. In English, that meant that NASA did not make any adjustment to either offerors' cost. It accepted them as proposed. Then there was Lockheed's Best and Final Offer (BAFO) which reduced its estimated costs based on a learning curve adjustment. Learning curves are based on the theory that the more times you do the same task, the less time it takes you to do the task as one gains experience at it. In the protest decision, GAO wrote GAO was being kind. However, NASA accepted Lockheed's BAFO as submitted. What About Those O-rings Well, it comes from an offeror's technical proposal. I don't remember which offeror but we were having a discussion with a NASA evaluator. It was a drawing that showed the SRM before it was ignited and then after ignition. After ignition the sides of the SRM expanded and the O-rings were shown holding the gasses within the SRM. I was amazed that the O-rings could withstand that pressure. That drawing remains etched in my brain. GAO's and NASA's Decision After about 6 months, GAO issued its bid protest decision on June 24, 1974. GAO's decision lists 25 bullets. The first one said Within hours of GAO's bid protest decision, NASA chose not to reconsider its selection decision and moved ahead with the Shuttle Program. Copyright © 1998 - 2023 Wifcon.com LLC
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Using the Solid Rocket Motor requirement from the solicitation that appears in Part 3 of this article, you can see that NASA may have been thinking of Low Rate Initial Production (LRIP) for Increments 1 and 2 and Full Scale Production (FSP) for Increment 3. In FSP, NASA planned 385 Space Shuttle flights between 1981 and 1988 or a little more than 1 Space Shuttle flight per week. Solicitation Increments Years Covered Planned Flights Planned Motors 1+2 1973 - 1981 54 108 3 1981 - 1988 385 770 Total Planned Flights & Motors 439 878 I cannot remember what time of day I placed the Space Shuttle example in my course for GAO Auditors but it always was after a break. I had to prepare myself for it. Perhaps, my voice would break. Perhaps a tear would roll down my cheek while my voice was breaking. It wasn't an act. It's happening now. My first question to the class was: How many flights did NASA plan for the Space Shuttle in each year? The guessing usually started at around 20 but before it reached 50 I would chime in with 50. The second question was: How was the program sold to Congress? It was Cost Per Flight. The more flights you plan, realistic or not, the lower the cost per flight, realistic or not. Of course, the last question was: How do you fix problems on a tight budget? After that, I simply looked into the eyes of the class members. I didn't have to say anything, the answer was obvious. If you want a complete aswer to that question, I suggest reading: Truth, Lies, and O-Rings: Inside the Space Shuttle Challenger Disaster, by Allan J. McDonald and James R. Hansen, Mar 11, 2012. Years Covered Actual Flights Actual Motors 1973 - 1981 2 4 1981 - 1988 25 50 1989 - 1995 46 92 1996 - 2000 28 56 2001 - 2005 13 26 2006 - 2011 21 42 Total Flights & Motors 135 270 Now, take a look at my 2nd table. Let's see how NASA measured up to the solicitation's planned schedule. I'll start with Increments 1 and 2 from the solicitation in the first table. The solicitation planned for 54 flights between 1973 - 1981. During that period, it actually achieved 2 flights. For increment 3 which appears to be full scale production during the years 1981 - 1988, the solicitation planned for 385 flights. During that period, NASA actually achieved 25 flights. We might as well look at the entire program schedule. The solicitation planned for the program to last from 1973 to 1988 (15 years) with 439 flights. It actually lasted between 1974 and 2011 (37) years with 135 flights. The simple facts are that the Space Shuttle Program missed, by a huge margin, the delivery requirements laid out in the solicitation for the SRMs and without the SRMs, the Shuttle was going nowhere. The solicitation requirement was for about 1 flight each week during production for about 7 years. I was going to descibe how the 2,200 tons of the Shuttle was going to be built by different contractors and shipped to Florida for assembly but why belabor the point. The best NASA could do was about 6 or 7 flights a year--not 1 per week. The solicitation was issued in 1973 and since then no agency, no contractor, no country, nor the entire planet Earth has been able to come close to such a requirement for manned space flight. Richard P. Feynman recognized it in 1986 as a bogus requirement. The bogus requirement had its cost per flight purpose needed for Congress but meeting the requirement was an impossibility. Just read the quote I added from the Packard Commission in Part 3. So, how do we judge the Space Shuttle program against a bogus requirement? That too is an impossibility. Decide for yourself. _______________________________________________________________________ The source for the totals in the second table is from Wikepedia.com's List of Space Shuttle Missions Copyright © 1998 - 2023 Wifcon.com LLC
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I've noticed that posters believe it is easier to add raw links to posts instead of descriptive links. Take a look. FAR 13.004 Legal effect of quotations. or https://www.acquisition.gov/far/part-13#FAR_13_004. To add a link all you have to do is add the text 13.004 Legal effect of quotations Highlight the text with your cursor, dump the text into your post, click the "link" icon, dump the https info into the space, and save.
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Small Business and Subcontracting Plan
bob7947 replied to NOVA_CO2344's topic in About The Regulations
Below is Rule 16. 16. Abbreviations are to be kept to a minimum--preferably none at all--so that others can interpret a post and respond to it intelligently. I've read the Original Post again and it may be that the Procurement Integrated Enterprise Environment (PIEE) and/or the Clause Logic System (CLS) might have a glitch in it. -
It looks like the OP got lost. This violates Rule 17! 17. Original posters must not disappear after they post a question. Disappearing makes it impossible to provide clarifications of the original post so that others may respond intelligently. It is normal for the original poster to be asked for clarification. I will lock the Topic shortly.
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Small Business and Subcontracting Plan
bob7947 replied to NOVA_CO2344's topic in About The Regulations
Joel: Why do you respond with a citation to a federal regulation? I stated the Public Law and where it is in the U. S. Code? -
Small Business and Subcontracting Plan
bob7947 replied to NOVA_CO2344's topic in About The Regulations
Title 15, Chapter 15A, 637(d)( 8 ) states "The provisions of paragraphs (4), (5), and (6) shall not apply to offerors or bidders who are small business concerns." (4), (5), and (6) are the requirements of P. L 95-507's small business subcontracting program. Let's see if this link works . It works. You just have to scroll down. The purpose of a subcontracting plan is to get money into the pockets of small businesses. Since a small business prime is small, why would anyone think that the small business needed a small business plan. It's idiocy. -
On August 10, 2023, I posted a very large (812 pages) final Davis-Bacon Act regulations. The Department of Labor (DOL) posted it in draft format to their site on 8/8/23. You saw the draft format. When DOL does that, usually they publish it in the Federal Register the same day. I searched the Federal Register back a few days and could not find it. I posted the draft version in case I missed something. Why the DOL pulls this nonsense, I don't know. Tonight, the Federal Register notes that it will be published on 8/23/2023. If it is published on that date, the 60-day effective date goes into effect.
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Retaining Evaluators' Notes in Light of 44 U.S.C. 3301
bob7947 replied to Voyager's topic in Contract Award Process
Last night, I received a note on this topic. Before that, the power went out here and was restored this morning. This morning, the first thing I did was add Federal Acquisition Circular 2023-05. I have locked this topic until I can look at it. -
Go to the second line from the top here and click "Blogs." You will find 5 blogs from 5 of the top contracting law firms in the United States. Every day view the Wifcon.com Home Page. You will find all the FAR and DFARS changes that are published that day. You will also find Agency Supplemets to the FAR System when they are published. It has been for 25 years and still is the fastest way to find those changes.
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The item is from the Navy site. #2 is the way the Navy explained it in the first paragraph of the article which gives the reader some hope. When the Navy wrote the heading of the article it used an abridged version that wasn't as bad as #1. I thought the writer of the article did a decent job of explaining as well as he/she could. PEO is the only acronym that I recognized.
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Since I visit many sites every night, I've seen this quite a bit from every Administration -- Democrat or Republican-- over the past 25 years. I cannot amend an agency Press Release and that is one of them. Last night, I visited a site that I usually use but couldn't use the entry because it was blaming the Republican Party for something or other--and that was a non-government site. I make judgements on whether content outweighs the political nonsense every night. It's frustrating and it takes me longer to get done. In the questioned news release, I decided that the statistics outweighed the "Biden-Harris Administration" wording. SBA does it a lot, probably more than others. So, when you see an agency press release like that, you can be assured that I saw it before you and made a judgement that the content outweighed the political baloney. In other cases, you won't see an article, because I judged it offensive to a political Party.
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I am writing a series of blog entries on my 3 Months in Huntsville, Alabama helping to review the source selection for the Space Shuttle's Solid Rocket Motors. I have finished Part 3 entitled Lockheed Propulsion Company, Thiokol Corporation, B-173677, June 24, 1974 - Part 3: Selling the Program. I should be done Part 4 in a week or two -- depending on how much anger I can hold back while I write Part 4. When you read the excerpt I took from the RFP, you should have an idea of where I am going with it. That requirement will be a highlight of Part 4. I'm not asking you to read the article so it gets views. I'm asking you to read Part 3 and then Part 4 - when its done -- to get you angry and try to prevent it from ever happening again.
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Thes are all sustained protests. Systems Plus, Inc.; CANN Softtech, Inc.; Dfuse Technologies, Inc.; Red Oak Solutions, LLC; White Oak Solutions, LLC; ShorePoint, Inc; JSSA, Inc.; Knowledge Management, Inc.; 2050 Technology, LLC; JarWare, LLC; iDoxSolutions, Inc.; cFocus Software, Inc.; SOFITC JV, LLC; Spatial Front, Inc.; ImpactOne JV, LLC; Technology Solutions Provider, Inc.; A1FedImpact, LLC; Saliense Consulting, LLC; Xfinion, Inc.; Hendall, Inc.; Syneren Technologies Corp.; iVision, Inc., d/b/a iVision Consulting, Inc.; CWS FMTI JV, LLC; Astor & Sanders Corporation; Computer World Services Corporation; DevTech Systems, Inc.; Criterion Systems, LLC; Cyquent, Inc.; Audacious Inquiry; ICS-TSPi, LLC; SRG-TSPi, LLC; Horizon Industries, Ltd.; MASAI Technologies Corporation; CTIS, Inc.; JCS Solutions, LLC; TSC-ITG JV, LLC; Karsun Solutions, LLC; Neev-KS Technologies, LLC; ASSYST, Inc.; Platinum Business Services, LLC; IS CIO JV; Inserso Corporation; Credence Dynamo Solutions, LLC; Sky Solutions, LLC; Blue Grove Solutions, LLC; Ennoble First-Macro Solutions, LLC; OCT Consulting, LLC; Swain Online, Inc., d/b/a Swain Techs; Katmai Management Services, LLC; Capital Data Partners JV, LLC; Network Management Resources, Inc., d/b/a NMR Consulting; mPower, Inc.; ADG Tech Consulting, LLC; USmax Corporation; Rip Ripple Effect Communications, Inc., d/b/a Ripple Effect; MicroTechnologies, LLC; A Square Group, LLC; eKuber Ventures, Inc.; The Electric On-Ramp, Inc.; MiamiTSPi, LLC; Decision Point Corporation; AgilisTEK, LLC; OM Partners JV 2, LLC; A-Tek, Inc. B-419956.184, B-419956.185, B-419956.186, B-419956.187, B-419956.188, B-419956.189, B-419956.190, B-419956.191, B-419956.192, B-419956.193, B-419956.194, B-419956.195, B-419956.196, B-419956.197, B-419956.198, B-419956.199, B-419956.201, B-419956.202, B-419956.203,et al, Jun 29, 2023. (July 11, 2023)
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Years and years ago there were 3 central suppliers. In the 1990s or thereabouts, Congress had an idea to perfect federal contracting further and allow GWACS, MACS, and anything else that rhymes with quacks. Congress also allowed additional agencies to act as central suppIiers. I complained about it on this forum and my complaints are in the Forum archives. The protest below is an example of Congressional contracting perfection. Note the B-numbers. Phoenix Data Security, Inc.; United Solutions, LLC; Storsoft Technology Corporation; STC United, LLC; FWG Solutions, Inc.; Allegient Defense, Inc.; NGEN LLC; DAS Federal, LLC; Zeva Inc.; ScribeDoc.com, Inc.; Shivoy Inc.; Magadia Consulting, Inc.; AC Integrity Partners, LLC; Technalink Inc.; 3T Federal Solutions, LLC; FedScale Inc.; Integrated Systems Solutions, Inc.; ISSTSPi, LLC; JSM Consulting, Inc.; Johnson Venture Management Solutions, Inc.; Innovate Inc.; JLGov LLC; Cyberbahn Federal Solutions, LLC; Ideal System Solutions, Inc.; NIS Solutions Corporation; Radian Solutions, LLC; Zigabyte Corporation, B-419956.200, B-419956.204, B-419956.221, B-419956.222, B-419956.224, B-419956.225, B-419956.226, B-419956.232, B-419956.236, B-419956.237, B-419956.238, B-419956.239, B-419956.243, B-419956.244, B-419956.246, B-419956.249, B-419956.250, B-419956.251, B-419956.253, et al. (July 10, 2023)
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On September 12, 1962, President Kennedy told us On July 16, 1969, after a tumultuous decade, we, NASA, its contractors, and astronauts met President Kennedy's challenge, landed on the Moon and returned safely to Earth. But, what were we ready to do after that? While I was waiting for Captain Kirk to send us into warp drive much of the nation wanted a break. There was a national letdown. NASA's budget was put under pressure and they were asked to work more closely with the Department of Defense (DoD). Time for a compromise, time for The Dump Truck to the Stars, time for The Space Shuttle. Just something to keep manned space alive. The Space Shuttle was a very complex Space Transportation System (STS). It was composed of the orbiter (Space Glider), external tank in the middle and 2 solid rocket motors on each side of the system. The external tank was comprised of 2 inner tanks that fed liquid propellant into the orbiter's 3 engines. The liquid system could be throttled up and back down within limits as needed. The solid rocket motors were built in segments with an engine and then joined together. The 2 SRMs were made with propellant that was mixed and cured and provided the shuttle with about 70 percent of its thrust. The solid propellant surrounded an inner core that was empty. At the top was a much smaller solid motor that would be ignited and then burn the fuel from the outside in and using the inner core as an exhaust outlet. Once the SRMs were fired up there was no stopping them until the fuel was spent. To give you an idea of the size and weights of the shuttle and SRMs, here are some approximate numbers when all propellant was loaded. the entire system weighed about 2,200 tons and was 184 feet high, the orbiter weighed about 120 tons, the external tank weighed about 700 tons, each SRM was about 154 feet tall and weighed about 600 tons. The Requirement In the 1980s, I wrote and taught a course called Introduction to Procurement for GAO auditors. The course highlighted some gimmicks used in federal contracting. One of those gimmicks was the Fixed-Price-Incentive-Contract which I wrote about and how it was abused years ago. Another was concurrency -- "the fact of two or more events or circumstances happening or existing at the same time." To show concurrency to my class, I would place an image of the system acquisition process on an overhead projector. Yes, back then, we used overhead projectors to show images on a wall. After I explained the process, I would walk to the image on the overhead projector and squish it together. All that remained after the squishing was the beginning and end of the process. I'd turn to the class and tell them: That's concurrency. Here's another gimmick but just a little different. It is a quote that I used in the Fixed-Price-Incentive Contract article but it is perfect now. The source for that quote was the President's Blue Ribbon Commission on Defense Procurement (Packard Commission) from 1986. Although it refers to defense acquisition it can be applied to many acquisitions in the federal government. My purpose for the course was to give GAO auditors the desire to find problems with federal contracting and report those problems to Congress. Whether I was acting as General Bullmoose trying to intimidate operational test and evaluation analysts to approve a system that couldn't work or whether I was trying to make a point I would pour my heart and soul into teaching every class. Maybe, I could prevent a future disaster from happening. When we reached the section on systems acquisition, this SRM procurement was my first example. I call this example "Selling Your Program." Let's get right to the requirement. Fortunately, that is memorialized in GAO's protest. It's time to call up your calulator on your computer and do a little math because I have an important question to ask in Part 4.
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My road to Huntsville was simple enough, drive through Tennessee, pass into Alabama, and find the Tourway Inn on Memorial Parkway. Those were the exact directions given to me. "Find the Tourway on Memorial Parkway." I had a paper fold-up map to find Memorial Parkway. So it was drive up and down Memorial Parkway to find the Tourway. There, I would meet our staff from the Atlanta Regional Office and they would fill me in on our work. This was my first trip into the deep south, and with my Philadelphia accent, it was as if I had an arrow pointing at me with the words "yankee here" as soon as I opened my mouth. We met outside of the Tourway at 7 AM and drove to Marshall Space Flight Center's Building 4200. Inside the cafeteria, we picked a large table for the 5 or 6 of us. I was told, we were there to audit the Source Evaluation Board's (SEB) evaluation of the Lockheed Propulsion Company's and Thiokol Corporation's proposals for the Solid Rocket Motors that would be developed and used to send the Space Shuttle into orbit. Thiokol Corporation had been awarded the contract and the Lockheed Propulsion Company had protested it to the General Accounting Office (GAO). Remember, this was 1974, ten years before the Federal Acquisition Regulation and the Competition in Contracting Act. The Federal Procurement Regulation was in effect for Civilian agencies and the Armed Servies Procurement Regulation (ASPR) was in effect for DoD agencies. Specifically, a GAO audit team was there because a powerful contingent of Senators and Congressmen asked (told) GAO to evaluate NASA's decision to award the contract to Thiokol. The Space Program had come to a standstill waiting for us to get done. NASA didn't want us there and I didn't want to be there. There I was, a 25 year-old auditor, away from home, working with strangers as part of a team, who were holding up the Space Program. It was early February and we would hold up the Space Program until the end of June. Wifcon.com was more than 20 years in my future. After watching my new colleagues slurp up their grits while I ate my chocolate covered donut, we walked to the Source Evaluation Board (SEB) Building. There had been over 200 members of the SEB so they needed a building and several of them were still working in the building. Then I was shown the Proposal Room where the proposals were stored. It was a large room with rows of 3-prong thick binders. The Proposal Room held the proposals from the four competitors: Thiokol Corporation, Lockheed Propulsion Corporation, Aerojet Solid Propulsion Company and United Technology Center. Fortunately, we only looked at the proposals from Thiokol and Lockheed.