Procurement Draws Crowd of Protesters and Ends with a Book

[bob7947]

 

This procurement drew a crowd of protesters and a 108 page COFC opinion.

Ekagra Partners, LLC, Unissant, Inc., AttainX, Inc.,  Logistics Systems, Inc., Arch Systems, LLC, Alpha Omega Integration, LLC, Garud Technology Services, Inc., Constellation, Inc., Chakrabarti Management Consultancy, Inc. v. U. S., and Novilo Technology Solutions, LLC., CAN Softtech, Inc., et al., Nos. 23-1610, 23-1667, 23-1668, 23-1675, 23-1676, 23-1721, 23-1792, 23-1814, 23-1844, March 7, 2024.  (108 pages), (March 11, 2024)

[here_2_help]

Wow. A lot of words to say, "Sure, the government made some mistakes in evaluation. But the mistakes weren't prejudicial. Denied."

[Vern Edwards]

Question: Does that kind of contract action make sense?

I wonder what that procurement, including the protest litigation, cost the taxpayers.

[C Culham]

22 minutes ago, Vern Edwards said:

Question: Does that kind of contract action make sense?

I wonder what that procurement, including the protest litigation, cost the taxpayers.

Contract?  Seems GAO is confused.  I thought they reasoned BPA's issued per GSA FSS are not contracts?

 

 

[formerfed]

So many of these actions (multiple award IDIQ contracts or BPAs) are protested, especially set asides.  Some reasons are companies don’t want left out of the future task order competition, they see their competitors winning and it makes them look bad, over zealous marketing people oversell opportunities within the company and are worried about their jobs, and the companies want another shot at winning. There are lots of historical instances where protesting lets companies back in for additional consideration and award. This all gives agencies incentive to just make one or two large IDIQ contract awards on an unrestricted basis where the successful contractor can perform all the required tasks.  In addition just developing strategies so the entire scope of work gets divided up into bite size pieces so small companies can participate on segments is difficult.

[Vern Edwards]

Question: Does that kind of contract action make sense?

[formerfed]

2 hours ago, Vern Edwards said:

Question: Does that kind of contract action make sense?

It doesn’t to me.  Having more than one contractor to compete on individual task requirements often is good.  By that I mean a group of 2 or 3 companies.  But most of these contract actions involve contractor pools of dozens and often many more.  If nothing else, the administrative time and expense to compete task orders can be huge.  Complying with Fair Opportunity can be tedious time consuming and that’s even before task order competition even begins.  

Apart from the task order competition, the award of the basic contracts is burdensome.  The current CIO-SP4 procurement is a tragedy.  Acquiescing to potential protests and letting complaining offerors into the award pool is common.  The Navy Seaport contract has 450 contractors for 23 functional areas.  Or some cases the governments makes entry very easy like STARS3.  GSA initially awarded 426 contracts and later added another 557! 

 

[C Culham]

2 hours ago, Vern Edwards said:

Question: Does that kind of contract action make sense?

I am thinking really hard to provide a reasoned response.   I do need clarity.   Looking at comments in the thread already is the "contract" a BPA or a IDIQ?   By my read it is the former based on this line in the protest - "challenging the award of two Blanket Purchase Agreements (BPAs)".

[Voyager]

5 hours ago, Vern Edwards said:

Question: Does that kind of contract action make sense?

No.  A contract, according to the Government Contracts Reference Book (Third Edition) is, "An agreement...to do or not do something...for a legal consideration."  One type of contract is the Federal Supply Schedule (FSS), a commercial, multiple-award IDIQ contract (according to FAR 8.402(a)) for governmentwide use.  It excludes no seller and relies on free market principles instead.

The multiple-award FSS BPA, on the other hand, is 1) Not a contract, and 2) Excludes potential awardees.  At the same time, it alludes to the promise of huge amounts of awards - a $450M ceiling price for each BPA in this case - disingenuously, in hopes for pre-priced volume discounts.  The problem is that the government's $450M number will likely not come to fruition, and only serves to draw more attention.  When it comes to industry attention, be careful what you ask for.  Caveat emptor.

You may, or rather must, scrutinize your initial contract estimates.

A wise buyer should also consider simply negotiating the client's task order under an FSS, using the free reign allowed by FAR 6.102(d)(3), which makes all CICA-like competitive procedures null on the instant acquisition, and FAR 12.213, which allows the government freedom to propose terms and conditions (including pricing) tailored to the instant acquisition.  Stating that you are holding a competition again, for a BPA, when you don't have to, just invites protest that the government is being anticompetitive in its evaluation procedures (paradoxically enough).

[formerfed]

1 hour ago, Voyager said:

Stating that you are holding a competition again, for a BPA, when you don't have to, just invites protest that the government is being anticompetitive.

But FAR 8.405-3(b)(2) requires an RFQ be either posted to eBuy or sent to a sufficient number of contractors to reasonably ensure at least three responses are received.  This applies when the estimated value exceeds the SAT.

One alternative to what CBP did is conduct market research to identify viable sources and solicit enough sources to comply - that may be as few as three!

[Voyager]

@formerfedFAR 8.405-2 "Ordering procedures for services requiring a statement of work", is beautifully permissive in my opinion.

[here_2_help]

Quote

For Track 1, the Solicitation stated: “CBP has a requirement for consulting and providing technical support to advise and assist the Government as the Subject Matter Expert (SME) for strategic planning, risk assessment and mitigation, cost analysis, data management and analysis strategies, and senior program management.” The Solicitation also noted “CBP requires vendor support to recommend enhancing and supporting CBP’s emerging technology, data management, reporting and analytical capabilities.” For Track 2, the Solicitation stated: “CBP requires a wide range of services and business disciplines supporting innovation and digital transformation. CBP’s overarching objective is to sustainably improve the total experience and to achieve business agility by integrating people, processes, data, and technology.” When asked at oral argument to provide more concrete detail regarding the Solicitation, the government responded the broad purpose of the contract is to support CBP’s data-related endeavors, including processing customs information, scanning license plates, patrolling the border, and developing language interpretation tools. (“[GOVERNMENT]: So CBP has a whole broad host of responsibilities that generate[] a ton of data, and they are trying to leverage AI and machine learning to better perform their duties.”), (“[GOVERNMENT]: They do license plate scanning. They patrol the borders, . . . [and] when they stop somebody from crossing the border, . . . [they] collect information. . . . [They also collect] information about Customs duties [such as from] cargo ships coming in with lots of both legal goods and illegal goods, and then the legal goods may or may not be properly admitted into the United States because of patent disputes and things like that, or they have to be subject to certain tariffs. . . . [They also frequently have to work] with a person who doesn’t speak the language that the officer speaks at the border.”). CBP intends to incorporate novel applications of AI into these tasks. (“[GOVERNMENT:] [T]his is the type of work that the agency is looking to procure in the future as emerging technology, so novel applications of AI.”). CBP’s team of technical experts reviewed all quotes with this broad purpose in mind, given the highly technical nature of the contract.

(Emphasis added; internal citations omitted.)

Based on the above, I'm hard-pressed to imagine how one might evaluate offerors. I guess based on general AI expertise? It seems to me that CBP is looking to hire a guide or two to lead it down the path of implementing AI. Track 1 will augment existing agency resources to manage the contractor(s) who execute Track 2, I guess.

But the nature of the awards means that work will be handled on an individual order basis. The Track 1 contractors will have difficulty establishing long-term partnerships with the CBP staff because of the nature of how the work is managed. The Track 2 contractors will have difficulty seeing the bigger picture because of the nature of how the work is awarded.

Conclusion: The agency would have been better off awarding one long term Track 1 contract on a CPFF basis and one or more Track 2 contracts to selected AI experts with a proven track record of deploying AI. The Track 2 contracts should have specific requirements in mind. You could even go CPIF with the incentive fee tied to quantitative or qualitative performance enhancement in Track 2. BPAs with pools of contractors and individual orders was not the way to go, in my view.

[formerfed]

2 hours ago, here_2_help said:

But the nature of the awards means that work will be handled on an individual order basis. The Track 1 contractors will have difficulty establishing long-term partnerships with the CBP staff because of the nature of how the work is managed. The Track 2 contractors will have difficulty seeing the bigger picture because of the nature of how the work is awarded.

Wholeheartedly agree.  I was going to post something similar.

The basic strategic problem is CBP is trying to interject the small business program where it doesn’t fit.  

[C Culham]

On 3/11/2024 at 11:59 AM, Vern Edwards said:

Does that kind of contract action make sense?

Setting up "charge accounts" for such work does not make sense to me.

[formerfed]

54 minutes ago, C Culham said:

Setting up "charge accounts" for such work does not make sense to me.

The “charge account” terminology is an oversimplification.  In practice these BPAs are similar to IDIQ contracts and the orders are placed after offerors often submit very complex proposal responses to RFQs.  In fact the ordering process often resembles a full blown FAR compeitive technical/price tradeoff acquisition 

[C Culham]

44 minutes ago, formerfed said:

The “charge account” terminology is an oversimplification.

Oversimplification or misuse of a Simplified Acquisiton method.  Afterall the Court reasoned that it was not a negotiated procurement.

[formerfed]

2 hours ago, C Culham said:

Oversimplification or misuse of a Simplified Acquisiton method.  Afterall the Court reasoned that it was not a negotiated procurement.

When one looks at the current practices and matches it against the regulations, I don’t think it could be called misuse.  Now if one compares it against practices from years ago, someone might shake their head in wonder.  The current processes evolved over time for the benefit of ordering agencies, contractors, and GSA.  FAR 8.4 can’t be labeled as a Simplified Acquisition method because it’s unique.

[C Culham]

3 hours ago, formerfed said:

 FAR 8.4 can’t be labeled as a Simplified Acquisition method because it’s unique.

It seems the allowance to use BPAs for GSA FSS is derived from FAR subpart 13.303-2(3) and as such a simplified acquisition method.  The CBP effort for establishing the BPA's was not simplified.

[formerfed]

1 hour ago, C Culham said:

It seems the allowance to use BPAs for GSA FSS is derived from FAR subpart 13.303-2(3) and as such a simplified acquisition method.  The CBP effort for establishing the BPA's was not simplified.

It wasn’t.  I was involved a long time ago when GSA did it.  GSA encouraged use of FAR part 13 BPAs for decades.  But FAR 8.4 came across as completely different.  It was devised as something akin to IDIQ contracts after a few agencies established initial orders with the capability of placing “sub orders” under it.

As Vern posted in the old thread, it’s a shame GSA chose the same term.

When you get down to it, it’s just a means to down-select to either a single or a few contractors for future task order work.
 

 

[joel hoffman]

@formerfed, just curious. Was David Drabkin involved with the above mentioned FAR 8.4 initiative? 

[formerfed]

11 hours ago, joel hoffman said:

@formerfed, just curious. Was David Drabkin involved with the above mentioned FAR 8.4 initiative? 

He was but I can’t remember exactly what his role was.  I think at the time he represented DoD when the ideas were kicked around.  But he ultimately approved the FAR changes when became the SPE at GSA and was one of the FAR signatories.

[C Culham]

18 hours ago, formerfed said:

It wasn’t.

Thanks for the history but I am not convinced.   

I have reviewed the Federal Register (Volume 48, No. 182 dated 9/19/1983) which was the issuance of the Federal Acquisition Regulations where on page 42166 at  FAR 13.203-1(f) provided the following wording which is essentially as it remains today.  

"(f) BPA’s may also be established with Federal Supply Schedule contractors (see Subpart 8.4) and ADTS Schedule contractors (see Part 39), if not inconsistent with the terms of the applicable schedule contract."

Noted FAR 13.201 in the 1983 FR noted above did use the term "charge account".

More interestingly FAR 8.406 addressed BPA's for ordering from Federal Supply Schedules.  The wording from 8.406 is as shown below and I have added the emphasis.  

"8.406 Blanket purchase agreements. Ordering offices should consider using a Blanket Purchase Agreement (BPA) with schedule contractors to reduce the number of orders and billing and payment documents required for repetitive orders. When the schedule provides for quantity discounts, considerable savings may be effected by establishing a BPA for items for which there is a foreseeable demand. Ordering offices shall comply with Subpart 13.2 and the schedule when establishing a BPA."

I still conclude that it was not GSA who chose the same term but the drafters of the FAR.  Again placing the wording in FAR Part 13 so that FAR subpart 8.4 could allow for BPA's.  Along the way, and I have admittedly not reserached the FAR yet the current 8.405-3 regarding BPA's has greatly expanded the GSA FSS use of BPA's.   

My further research was prompted not only by your reference to history but by my own recollection, admittedly very foggy, that I may have written a BPA against a GSA FSS for IBM Selectric Typewriters back in the stubby pencil days.   

As I noted in my previous post the now explosion of BPA's to establish charge accounts way beyond what might be viewed as a simplified acquisition procedure does not make sense.   So yes I shake my head in wonder because I was around years ago.  I realize the Federal government is a huge procurer of all kinds of stuff but establishing a "charge account" in any form where millions upon millions of dollars of stuff can be acquired, again, does not make sense.

For reference - https://www.govinfo.gov/content/pkg/FR-1983-09-19/pdf/FR-1983-09-19.pdf#page=1

[formerfed]

 It doesn’t make any difference.  You’re conflating language of FAR 13 BPAs which always existed under FSS contracts and what is done using now with the multi-million dollar BPAs.  The former could be “charge account” with verbal and informal calls.  I recently saw one of the F8.4 actions with a $500 million ceiling and initials orders in excess of $20 million.  These are BPAs in name only.  It was a poor choice of words but GSA thought they had to come up with a term for what several agencies were doing with zero dollar orders containing IDIQ type language.  By the way I know for a fact the term originated with GSA and not the FAR drafters.

There’s no need to continue this because it’s really a moot point.  But it’s flat out wrong to all them “charge accounts.”  It’s no different than calling IDIQ contracts “charge accounts.”

Let’s just say we disagree and move on.

[C Culham]

6 hours ago, formerfed said:

Let’s just say we disagree and move on.

Sorry but I can not.   You have presented a position that is not supported by facts.    My intent here is to provide factual history for the Forum.   

I have already pointed out in a previous post the first issue of the FAR in 1983 carried FAR 8.406 regarding BPA's.    FAR 8.406 was then removed from the FAR via Federal Acquisition Circular (FAC) No. 90-21 (October 25, 1994).  BPA reference then reappeared in FAR subpart 8.4 via FAC 2001 25R in October of 2004.   My research found the below referenced protest of 1996.  In the protest the GAO opined the following (emphasis added) absent the FAR 8.406 language. 

"GSA, commenting on this matter at our request, acknowledges that FAC No. 90-21 deleted FAR Sec. 8.406 from the FAR; however, it takes the position that ordering agencies may enter into BPAs with FSS contractors pursuant to FAR Sec. 13.202(c)(3) and clause H.5 of their FSS contracts. FAR Sec. 13.202(c)(3) provides that "BPAs may be established with Federal Supply Schedule contractors, if not inconsistent with the terms of the applicable schedule contract" and, as previously indicated, section H.5 of WIN's and IDI's schedule contracts expressly authorizes the contractor to enter into a BPA with an ordering agency. [9] Purchases under BPAs with FSS contractors are not limited to $100,000. FAR Sec. 13.204(b). "

https://www.gao.gov/products/b-274626%2Cb-274626.2

I would bet,  admittedly without further research that I am not going to do, that language was added back into the FAR regarding GSA FSS BPA's in 2001 in part due to the protest I have referenced. 

While your think otherwise the factual history supports a nexus of GSA FSS BPA's to FAR part 13.   I would add that IDIQ contracts and their related task/delivery orders are not charge accounts.   This fact is clear from the guiding principles of the FAR and common contract law.   As a reminder GAO has also stated that BPA's issued pursuant to a GSA FSS are not contracts, yet task/delivery orders are.  So if a BPA is not a contract under a GSA FSS what are GSA FSS BPA's but charge accounts where a call placed against a GSA FSS BPA must be confirmed by a call/order (task/deliver order).

I will agree that it really does not matter as procuring agencies, and GSA in managing the FSS program, will do anything they want.  And while agencies and GSA think it makes sense to utlize BPA's, as evidenced by the protest in the original post to this thread it does not, and that is my view. 

 

[formerfed]

Whatever.   Apparently you wanted to argue this charge account terminology with your post yesterday in response to Vern’s question.  I’m done.