Vern Edwards

Thanks to all for the opinions and advice. @Voyager Right on! Thank you very much. I will. I will publish my piece in The Nash & Cibinic Report, and with Thomson Reuter's permission I will provide it to Bob for release here. Happy Holidays to all. Vern

I am considering a proposal to eliminate bid protests. I am thinking of proposing that Congress eliminate GAO and COFC bid protests entirely. I am thinking of arguing that the annual cost to the taxpayers in terms of the effects on government operations is too great and that the benefits of the protest system are not worth it. I have been prompted to pursue this course by an article written by former Secretary of Defense Robert M. Gates in the November/December 2023 issue of Foreign Affairs, entitled, "The Dysfunctional Superpower," in which he wrote of the need to reform defense acquisition processes. At present, based on 2,000 GAO decisions per fiscal year, I guesstimate that the government's annual GAO bid protest process cost is upward of $100,000,000 a year, based on an average of $50,000 per protest, including the cost of the GAO's in-house operation. Some colleagues have guesstimated much higher costs. That number does not include the costs of procurement delays and delays of government operations, which costs would be much, much higher. The benefits of the current protest system are generally intangible, unmeasurable in dollars, and unverifiable. The objective would be to eliminate CICA stays and court orders and injunctions. In place of bid protests I'm thinking of suggesting that complaints about award decisions be handled as claims under the Contract Disputes Act, with the claimant being permitted to seek only recovery of proposal preparation costs up to a congressionally-specified limit set as a percentage of contract award value. CO decisions on such claims would be appealable to the cognizant board of contract appeals or to the COFC if the parties cannot agree to a settlement. Any costs awarded would be paid out of the agency budget. In place of the current protest system, agency heads would be required to establish formal and formally-documented in-house pre-award quality assurance reviews of prospective source selection decisions for procurements in which the award value is in excess of $100,000,000. The reviews would be limited to the proposal evaluation and decision-making processes. The reviews would have to be independent of the contracting office that conducted the process and made the award decision and would be subject to approval by the agency head or the HCA. Complaints about the terms of a solicitation would have to be submitted to the agency head or the HCA within 10 days after publication of the solicitation. The agency head or the HCA would have the final say and would have to publish a complaint resolution letter at SAM. Any indication of criminal misconduct by government personnel would have to be referred to the Department of Justice. The underlying idea is that agency heads and their subordinates should be responsible for the quality of their business operations and decisions, not the GAO and not the COFC. Given the state of the world and our government's dependence on contractors and procurements, government operations must no longer be delayed or derailed by the protests of disappointed companies. I am interested in opinions about this idea, but I will not respond in this forum.

Continuing resolutions, unlike government shutdowns, are routine. The following is from a Congressional Research Service report published in 2000: Footnotes omitted. See "Continuing Appropriations Acts: Brief Overview of Recent Practices," 2000. Google it. Democracy is messy. Always has been, always will be, and it's getting worse every year in "democracies" all over the world. Sometimes it just doesn't work. The question is, Why? Does the problem lie with the nature of democracy or with the people being governed?

In the interest of professional education, some last thoughts. What is a "note"? Why make ("take") them? Are there different kinds of notes (lecture, reading, observation, discussion, interview... )? If so, do they have different kinds of contents, styles, and formats? Are there standards? How do you make notes? Do your evaluators know what "good" notes are and how to make them? Do you? Believe it or not, there is a voluminous literature about all that. Making notes is something people take for granted, because they figure they know how to do it. But do they? Most people receive no formal instruction in note-making. See: "The Note-Taking Habits of Highly Successful People" https://observer.com/2017/07/the-note-taking-habits-of-highly-successful-people-richard-branson-david-allen-tim-ferriss-writing/ "Duly Noted: The Past, Present, and Future of Note-taking," The Atlantic, September 2012 Anyone heard of Niklas Luhmann and the Zettelkästen note-taking method? https://en.wikipedia.org/wiki/Zettelkasten Thomas Edison produced more than 3,000 200-page notebooks. Lawyers keep trial notebooks. What do they put in them? See https://www.fastcase.com/secondarymaterials/building-trial-notebooks/ and https://www.blumberg.com/downloads/TrialNotebook.pdf, https://www.illinoistrialpractice.com/2004/05/a_method_of_org.html Should COs keep (a) source selection or (b) contract/modification negotiation or (c) claim/dispute resolution notebooks? Should CORs keep contract admin notebooks? Take care, all. We're getting older. Don't waste time. Be more knowledgable and smarter than the others in your office.

@formerfed Because it's you, and because we were members together for so long, I'll respond to your last two posts.. My post focused on the record retention requirements of 44 USC 3301, et seq, and the NARA regs, as distinct from GAO case law. See FAR 1.602-1(b). But you can see the importance of retaining documentation in the GAO decisions. What do they say about evaluators's notes? A search of GAO decisions for the words evaluators and notes in a single sentence turned up 75 hits between 1976 and 2023. See, for example, Accenture Federal Services, LLC, B-421134.2, April 12, 2023. The issue was evaluators' notes taken during oral presentations: And that was just a "fair opportunity" competition. The protest was denied. Do you think those notes were "records" as defined by statute? If so, Why? If you think they were records, do you think 44 USC 3301 et seq and the NARA regulations require that they be retained in the file and not just summarized in a report? Do you think destroying them would be consistent with the law? And see Southwest Marine, Inc.; American System Engineering Corp., B-265865, January 23, 1996: That protest was sustained. Now the GAO did that without reference to 44 USC 3301. But do you think, given the GAO's findings, that destroying those notes and workpapers was consistent with the records retention law? Now, yesterday, after I made my post and said that whether documentation constituted a "record" had to be determined on a case-by-case basis, you wrote: I shook my head when I read your response to my post. You wrote it as if there is a national standard for the content of consensus reports. Do you know of one? Did you do any research before coming back with that? Can you see now how your statement, which strikes me as overly broad, but coming as it did from an experienced veteran of contracting and Wifcon Forum might mislead and misdirect less knowledgeable readers? That kind of thing is why I warn readers that Wifcon Forum in not a reliable source of information for anyone other than the foolishly credulous. I can see that some of members of the Forum think hanging on to documentation is anal retentive. I can see that others fear that keeping documentation might reveal flaws in an evaluation and, like certain politicians, prefer to get rid of that which might be embarrassing. I don't expect to change such minds, but I want to provide information that might help others make sound decisions. As a former contracting professional, I happen to believe in transparent government and legal compliance. I don't think government employees should start taking bypasses from compliance. I don't think I have your current email address, but if you send it to me via the Wifcon Forum message channel, or through Bob, I'll send you a list of all 75 GAO decisions. And then you can decide if a consensus report, whatever information that might contain, is the only document that need be kept in the contract file. In any case, best to you. Vern

I no longer participate at Wifcon and I don't read the Forum anymore, but someone called me about this thread and, having read it, I have a few things to say. Here is the OP's original question: Emphasis added. The question is based on false assumptions. There is no conflict between GAO case law and 44 USC 3301 with respect to retention of records, and there is no choice between compliance with the GAO case law and the statute in this matter. The proper response to the question asked is that COs must always comply with the statute. As I hope to show, below, they will have no problems under GAO's case law if they do, because the case law is just an evidentiary policy and is less demanding than the statute. A CO might be okay under GAO case law, but not under a federal court's jurisdiction if they did not comply with statute. Now, with respect to 44 USC 3301, we must ask ourselves some questions 1. What is a record? 2. What records must agencies make? 3. What records must agencies keep? WHAT IS A RECORD? According to 44 USC 3301: That's pretty broad. The National Archives and Records Administration (NARA) has specified its implementation of the statute in Title 36 of the Code of Federal Regulations, Chapter XII, National Archives and Records Administration, Subchapter B, Records Management. According to the regulation, all Federal agencies must comply with Subchapter B. NARA elaborates on the statutory definition or record in 36 CFR 1220.18, What definitions apply to the regulations in Subchapter B? And see 36 CFR 1220.18: Emphasis added. See further, 36 CFR 1222.10, How should agencies apply the statutory definition of Federal records? And see 36 CFR 1222.12, What types of documentary materials are Federal records? Emphasis added. WHAT RECORDS MUST AGENCIES MAKE? See 44 USC 3101, Records management by agency heads; general duties Emphasis added. WHAT RECORDS MUST AGENCIES KEEP? See 36 CFR 1220.30, What are an agency's record management responsibilities? Emphasis added. Now suppose that an evaluator reading a technical proposal sees an assertion by the contractor of an engineering or scientific nature that she knows to be false based or more current research than the contractor has done. She scribbles a note to that effect and later shares that note with other evaluation team members during a team consensus meeting. Can the CO toss it after the announcement of the source selection decision? Should the CO tell evaluators not to make such notes? My conclusion: The determination of what constitutes a source selection "record" and the determination of which records must be retained must be decided on a case-by-case basis. I think best practice is to retain everything produced by the evaluation team, at least pending review. That's what I was trained to do almost 50 years ago, and I still believe that it is prudent practice. If you do, you'll comply with the law and you'll be okay in that respect with the GAO. If you don't, you might find yourself in difficulty in more than one way. And once something is gone, it's gone, unless you're hiding a copy. I disagree with Don that "everything" is a record. That's too broad. I disagree with ji20874 that the GAO case law is "correct." Correct about what? It's own evidence policy? I disagree with ji20874 that individual evaluator notes are not records. That's too broad in the opposite direction from Don. I also disagree with formerfed when he says, "The most prudent and wisest practice in my opinion is preparing a consensus report and that should be the only document retained." That's so unwise it's scary. And it's scary that Joel would agree. And I disagree with Joel when he agrees with ji20874 that individual evaluator findings are not records There is a troubling failure of professionalism on the part of some of the veterans of this forum when it comes to responding to questions. Too much opinion, not enough facts and analysis. Yes, some of the responses provided in this thread have been unprofessional. Wifcon Forum is not a reliable source of information. It won't be until the old timers act on their moral responsibility to be more thoughtful in responding to questions than they have done in this thread. I have enjoyed meeting people in the Forum, and I have made many friends over the years. I wish you all well. All of you. I would not have written this if I didn't. Goodbye and good luck.

Good info, Georgi!

The confusion about proposal/offer is the product of how the concept of "negotiated procurement" developed in government contracting after World War II and the Korean War emergency. I'll describe it one day for a Wifcon article. There were two factors. First, no one knew what "negotiated procurement" meant in practical terms other than that it was any kind of procurement other than "formal advertising" (now "sealed bidding"). Second, was the concept of "proposal" which emerged from weapon design competitions. It's an interesting story, but too hard for me to write now due to my eye problems.

No. But somebody wrote about that more than 20 years ago, making that very point.

Yes.

Yes.

@LeighHar Wait a minute! What are you pricing? A new subcontract or a subcontract modification? Does your contract with the government include the clause at FAR 52.215-12 or -13? If so, is the sub's proposed price greater than the TINA dollar threshold when you signed your government contract? What I want to know is whether your government contract requires you to obtain certified cost or pricing data from the sub in this instance. I am unable to determine that from your posts. If you want a further response, please answer my three questions.

Why do agencies make GWACs? Why is NIH making a GWAC for IT support services?

No violation of the policy, since the CO did not do so knowingly. In any case, see FAR 3.602.

See STG International, Inc. v. U.S., COFC Nos. 23-47C; 23-175C, May 24, 2023. I have long argued that there is a distinction between offers and proposals. Offers are sets of promises to act or refrain from acting in a specified way, so made as to communicate a willingness to enter into a bargain. Proposals, despite the stupid definition in FAR 2.101, are packages that presumably contain (1) offers and (2) mere information. The COFC protest decision demonstrates that fundamental idea in a dramatic way. A link to that decision was posted on the home page today.