311 Open, Withdrawn, and Closed Protests Under NIH Solicitation 75N98121R00001

[bob7947]

Keeping the GAO Protest Unit busy with 311 protests under Solicitation 75N98121R00001  Department of Health and Human Services, National Institutes of Health Chief Information Officer-Solutions and Partners (CIO-SP4).

Notice the GAO's protest number under Infotrend Inc., B-419956.301, May 11, 2023.

Quote

NIH issued the solicitation on May 25, 2021, seeking proposals to provide IT solutions and services in the areas of health, biomedical, scientific, administrative, operational, managerial, and information systems requirements. Req. for Dismissal (RFD) at 2; RFD, exh. 1, RFP at 7. 2 The purpose of the CIO-SP4 contracts is to “provide government agencies a mechanism for quick ordering of IT solutions and services at fair and reasonable prices, to give qualified small businesses a greater opportunity to participate in these requirements, and give government agencies a mechanism to help meet their socio-economic contracting goals.” Id. at 7.

The RFP anticipates the award of multiple contracts, each of which will have a base period of performance of 5 years and one 5-year option. RFP at 38. The solicitation states that the agency will award approximately 305 to 510 IDIQ contracts, including as relevant here, 20 to 40 contracts to 8(a) small businesses. Id. at 143. Each awarded contract will have a maximum ordering value of $50 billion. Id. at 50.

 

[formerfed]

The entire multiple award IDIQ concept is broken.  This CIO-SP4 example shows how ridiculous the process has become.   A huge amount of both government and industry time and effort goes into just getting to contract award which takes literally years after all protests are resolved.  Then ordering agencies go through similar efforts at the task order levels beginning with providing “fair opportunity” to “approximately 305 to 510 IDIQ contracts” holders.  Where is the “streamlining,” “efficiency,” and “economy” of the process?

[bob7947]

Quote

The RFP anticipates the award of multiple contracts, each of which will have a base period of performance of 5 years and one 5-year option. RFP at 38. The solicitation states that the agency will award approximately 305 to 510 IDIQ contracts, including as relevant here, 20 to 40 contracts to 8(a) small businesses. Id. at 143. Each awarded contract will have a maximum ordering value of $50 billion. Id. at 50.

400 contracts x $50,000,000,000 (billion) = $20,000,000,000,000 (trillion)  

I've never been great at math but I estimated the number of contracts at 400 with a maximum of $50 billion.  Possible 10 years = $2 trillion a year.  Is my math correct?  Does the solicitation state that all contracts awarded could be worth $20 trillion?

[bob7947]

I'm astonished that only formerfed said anything about this procurement.  

[Vern Edwards]

1 hour ago, bob7947 said:

I'm astonished that only formerfed said anything about this procurement.

Well, it's yet another indication that (1) the Federal Acquisition Streamlining Act of 1994 did not streamline anything, that (2) multi-agency multiple-award IDIQ contracts are a bonanza for the legal profession but are otherwise time-consuming and wasteful, and that (3) the government and political system created by the founders is foundering and nothing can save it from itself. It is proof that we are living in the age of incompetent government.

There is no chance of meaningful "reform."

[bob7947]

Quote

The solicitation states that the agency will award approximately 305 to 510 IDIQ contracts

Why 305 to 510 awarded contracts?  I haven't checked any previous procurement but I expect a lot less than that number of contractors ever getting work to do. 

Quote

Each awarded contract will have a maximum ordering value of $50 billion. Id. at 50.

I admit my math could be better.  However, 305 to 510 contracts with orders of $50 billion could exceed $20 trillion.  Who's kidding who?

Now, for a true story.  A contracting agency had about 6 IDIQ contracts with maximum order limits of $50 million each.  One contractor was going to exceed the $50 million limit because it received most of the awards.  The other 5 contractors received next to nothing.  The contracting agency believed that increasing the maximum order limit for the one contractor would be improper and get the other contractors to take legal action.  What to do?  All 6 contractors had their original contracts maximum increased to $50 million even those who never received any business.  That reminded me of the $50 billion number.

[formerfed]

1 hour ago, bob7947 said:

Why 305 to 510 awarded contracts?  I haven't checked any previous procurement but I expect a lot less than that number of contractors ever getting work to do. 

How about Navy seaport-e?  23 functional areas with over 2400 contractors!

I don’t know how NIH did their calculations.  But I do know how a couple other GWACS planned the number of awardees.  They looked at past ordering, the range of technical requirements, the span of industry capabilities including those of small businesses, and did some rough guesses on how many contractors will be required to cover it all assuming a minimum of three responses for each potential order across the technical spectrum.

 

[Vern Edwards]

Why do agencies make GWACs?

Why is NIH making a GWAC for IT support services?

[bob7947]

For FY 2022, the Congressional Budget Office said that the U. S. spent:  

Quote

"In fiscal year (FY) 2022, the government spent $6.27 trillion . . ."

Iif we project the same amount in FY 2023, then NIH's annual contract amounts of $2 trillion under that procurement would cover 32 percent of the amount that the U. S. spent for everything and more than the discretionary money for FY 2023.   CBO defines discretionary funding as 

Quote

Discretionary spending is determined by the President and Congress each year in the budget and appropriations process and includes spending for most defense, education, and transportation programs.

With those contracts NIH could cover the entire discretionay funding for FY 2023.  "An electronic chcken in every pot."  That makes me feel warm and fuzzy.

[formerfed]

3 hours ago, Vern Edwards said:

Why is NIH making a GWAC for IT support services?

Good question.  Apparently lots of agencies use it.  And NIH has an entire organization in support.

https://nitaac.nih.gov/sites/default/files/2020-11/NITAAC_CIO-SP4_Overview_Presentation.pdf

[bob7947]

I am attaching this OFPP Directive on interagency acquisitions for further use.  The title is Development, Review and Approval of Business Cases for Certain Interagency and Agency-Specific Acquisitions. 

[General.Zhukov]

My agency, within HHS, is a heavy user of GWACs, and I love them.  They are great and should be praised.

CIO-SP3 & NITAAC are for IT.  Purchasing IT services and software using a GWAC is drastically easier and faster than open-market.  This is mostly because the GWAC has dealt with compliance and Terms & Conditions (all the stuff that needs to be done unrelated to actually meeting the government's requirement). Examples:

• Terms of Service.  Does the publisher have federally compliant mandatory ToS?  If not, you might have to negotiate a bespoke ToS, which is a big undertaking regardless of price.   At a minimum you may have to check with legal about it, which brings things to a halt for a week or two.
• Pricing.  A scientific software platform my agency uses a lot has something like 20+ different pricing models.  Just figuring out how to accurately code the pricing structure as line items in a federal contract can be a challenge.  When the software in question costs $5,000, this extra effort is not a good use of time.   For the most part, the pricing in GWACs is federal government friendly. (Note: its been >20 years, we need to have consumption-based pricing in the FAR).
• FAR 25.  IMO, this is the most complicated part of the FAR, by far.  If your widget might have FAR 25 apply to it, you really want to get it from a source that's taken care of all that stuff.  GWAC vendors are very good at policing each other.  You'll hear about it if a vendor is offering you a cheaper but non-TAA compliant printer.

Pricing?  My guess is on a per-unit basis pricing on GWACs is about the same as open-market.  But if you factor into your cost equation time and effort spent by all parties, then GWACs have big cost savings.

A major benefit of having redundant (overlapping in scope) GWACs is competition for buyers.  Its really important to have several comparable GWACs which we can pick from to procure stuff.    Incentives matter.  

[Vern Edwards]

Good info, Georgi!

[formerfed]

Valid points raised General.Zhukov.  But in practice, many orders for services take a very long time to award.  That largely is due to the huge number of contract holders and the requirement for fair opportunity.  I wonder how much of the overall time and effort in awarding the basic contracts really produces benefits.  For example and this article is over a year old with lots more protests since:

https://federalnewsnetwork.com/reporters-notebook-jason-miller/2023/04/cio-sp4-a-tragedy-a-comedy-and-a-drama-we-couldnt-stop-watching/

All this takes place before ordering agencies can even place orders.

As an alternative, I’ve seen agencies getting great results from using GSA Schedules.  They do upfront market research and identify a small pool of companies capable of meeting their requirements (often as few as 3-5).  They issue a quick solicitation, receive and evaluate responses, communicate as necessary, and make awards.  No need to synopsize or provide notice to hundreds of companies, deal only with a manageable number of companies the agency knows and are reasonably comfortable with, and place order awards quickly.

[joel hoffman]

15 hours ago, formerfed said:

Valid points raised General.Zhukov.  But in practice, many orders for services take a very long time to award.  That largely is due to the huge number of contract holders and the requirement for fair opportunity.  I wonder how much of the overall time and effort in awarding the basic contracts really produces benefits.  For example and this article is over a year old with lots more protests since:

https://federalnewsnetwork.com/reporters-notebook-jason-miller/2023/04/cio-sp4-a-tragedy-a-comedy-and-a-drama-we-couldnt-stop-watching/

All this takes place before ordering agencies can even place orders.

As an alternative, I’ve seen agencies getting great results from using GSA Schedules.  They do upfront market research and identify a small pool of companies capable of meeting their requirements (often as few as 3-5).  They issue a quick solicitation, receive and evaluate responses, communicate as necessary, and make awards.  No need to synopsize or provide notice to hundreds of companies, deal only with a manageable number of companies the agency knows and are reasonably comfortable with, and place order awards quickly.

Yes, they are convenient. And likely profitable for the contractors. 

[C Culham]

On 5/24/2023 at 7:18 AM, bob7947 said:

I'm astonished that only formerfed said anything about this procurement.  

The downhill rolling snowball has an unstoppable momentum.  So much so is has taken over BPA's too.

"The Land Management Integrated Resources BPA (LMIR) is a National BPA that will consist of a large variety of work including Professional Services, Natural Resources Restoration, Engineering, Project Management, NEPA, Communications, and more. The BPA will have a period of performance from early spring 2023 through early spring 2033 and can be utilities on all Forests and Grasslands and is available for all federal agencies to utilize. "

https://sam.gov/opp/e1e14956cafa4c409babece95c6200eb/view

 

[General.Zhukov]

On 5/28/2023 at 3:24 PM, formerfed said:

Valid points raised General.Zhukov.  But in practice, many orders for services take a very long time to award.  That largely is due to the huge number of contract holders and the requirement for fair opportunity....

As an alternative, I’ve seen agencies getting great results from using GSA Schedules.  They do upfront market research and identify a small pool of companies capable of meeting their requirements (often as few as 3-5). 

Agreed.  3-5 is about right.  COs are well aware of the costs of getting too-much competition, and have techniques to keep the pool to a reasonable number.   Some of these techniques are now endorsed by FAI, Periodic Table of Acquisition Innovations.   Personal fav is the 'down select' - its like a voluntary and much simplified competitive range. 

 

[formerfed]

26 minutes ago, General.Zhukov said:

Some of these techniques are now endorsed by FAI, Periodic Table of Acquisition Innovations.   Personal fav is the 'down select' - it’s like a voluntary and much simplified competitive range. 

 

Good.  I was hasty in my response.  I’m looked over maybe a couple dozen CIO-SP3 files and don’t remember any of the agencies reducing the pool.  Glad you are doing that.

[joel hoffman]

The “down select” procedure is the primary purpose of the FAR 36.3,  2 Phase D-B process, which was proposed by the industry and jointly developed for FAR with the USACE and other some DoD agencies in 1996-1997 timeframe. Phase 1 is very similar to the industry Phase 1 “request for qualifications” (“RFQ”) with no price or technical design proposals.

Industry wants to short-list only 3-5 most highly qualified firms to spend the time, cost and resources to develop phase 2 preliminary design and price proposals.

This allows a firm a reasonable probability of award after expending the time, cost and resources in phase 2.

In contrast, in the one-step D-B process, industry must submit a full price proposal and usually a preliminary design proposal, against an unknown number of competitors with an unknown probability of award.. 

The FAR Part 15 rewrite of 1996 included the multi-step advisory process in . 15.202. This was a step down from the 2 phase D-B process in 36.3.

It is mostly for the benefit of the government, in my opinion.

 

[formerfed]

I just saw CIO-SP3 was extended to October.  Plus NIH has approval to extend through April 2025 if needed.  So contract awards are now anticipated over 3 years and counting after the solicitation was issued!  It would be interesting to see what the overall cost to government and industry is compared to the anticipated benefits.

[bob7947]

CIO-SP3 and CIO-SP4

[formerfed]

The number of protests now exceed 350 and a dozen protests also filed with the Court of Federal Claims.  The judge recently consolidated the cases.  I hope somebody in the government takes a critical look at these kinds of large IDIQ contracts in the future. The costs to both government and industry needs examined as well as substantiating the alleged benefits.  Furthermore the costs and efforts involved with placing task orders need looked at as well. 

[Vern Edwards]

Has the advent of MATOCs/MADOCs improved the quality and prices of the goods and services received?

Don't answer if you're not prepared to produce factual evidence. Anecdotes don't count.

[bob7947]

1.  The Clinger-Cohen Act of 1996 authorized Government-wide Acquisition Contracts (GWACs) through section 5112(e) of the act, which is 40 U.S.C. 11302(e). GWACs are contracts for information technology (IT) that are established by one agency for use across the government. They are pre-competed, multiple-award, indefinite delivery, indefinite quantity (IDIQ) contracts that agencies can use to buy IT products and services.

• Once we had 3 central suppliers:  GSA, DLA, and VA.  Now it's a free for all.  Of course, OMB must give GWACs its blessing and they've given out many blessings.

2.  On that GWAC, the COFC is now hearing claims.  In the past week, a COFC opinion was being held up by a District Court.  Recently, I seem to remember a case involving other transactions.  I've always considered protests and disputes as adminstrative actions.  It's time for Congress to take action and ban federal courts from hearing anything that deals with a procurement contract or something that looks like a procurement contract.  I agree with Vern. 

3.  From a GAO decision:

Quote

However, our Office necessarily reserves an inherent right to dismiss any protest, and to impose sanctions against a protester, where a protester’s actions undermine the integrity and effectiveness of our process.  PWC Logistics Servs. Co. KSC(c), B‑310559, Jan 11, 2008, 2008 CPD ¶ 25 at 12.  The inherent right of dispute forums to levy sanctions in response to abusive litigation practices is widely recognized and has been characterized by the Supreme Court as “ancient in origin,” and governed not by rule or statute, but by the control necessarily vested in a forum to manage its own affairs.  Roadway Express, Inc. v. Piper et al., 447 U.S. 752, 765 (1980). 

It's time for GAO to meet with it's Congressional bosses, explain this procurement, and show some guts. 

PS:  Please do not name the protest that the above quote comes from.  I left it blank intentionally.

 

 

[bob7947]

15 hours ago, formerfed said:

The number of protests now exceed 350 and a dozen protests also filed with the Court of Federal Claims.  The judge recently consolidated the cases.  I hope somebody in the government takes a critical look at these kinds of large IDIQ contracts in the future. The costs to both government and industry needs examined as well as substantiating the alleged benefits.  Furthermore the costs and efforts involved with placing task orders need looked at as well. 

Formerfed:

GAO lists 360 "actions" against that solicitation.  I assume that those actions are protests and many of the protests were sustained (I seem to remember over 60 sustained protests.)  The solicitation was a GWAC which requires OMB approval.

I can think of two ways for GAO to deal with all these protests.

1.  Where a number of dismissed or withdrawn protests complain about a similar issue, GAO (if the courts are eliminated) could consider whether a potester or  protesters actions undermine the integrity and effectiveness of our process and suspend the protesters from submitting protests in the future.

2.  Since this is a GWAC approved by OMB and there are so many sustained protests GAO may wish to recommend that OMB withdraw its GWAC approval from the issuer of the solicitation.