Acquisition Reform

[Vern Edwards]

On 5/20/2021 at 3:24 PM, bob7947 said:

I have a hard cover book by a GAO historian that includes the Hollifield hearings which were held in 1965.

Are the hearings you're talking about, "HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES; Comptroller General Reports to Congress on Audits of Defense Contracts," May - July 1965? About 1,000 pages?

In his opening remarks Holifield (one "l") said:

Quote

Opinions and judgments in such fields may differ and these may be honest differences. Is the GAO, as some Government and industry parties believe, enforcing its own standards of procurement on Government and industry without authority of law or without the benefit of the intimate technical and business experience which resides in the parties to the procurement process ? Is there developing a basic clash of procurement philosophies between GAO and DOD ?

Hearings, p. 3.

Perhaps it is noteworthy that DCAA was created in 1965, giving DOD its own audit service.

[here_2_help]

After some reflection I am now of the opinion that no significant acquisition reform can or will come about unless there is first significant statutory reform and significant judicial reform. Too many bureaucratic rules are driven by statutes. (Vern already noted two statutes that he believes should go. To his list I would add the ADA.) Further, recent decisions at the ASBCA and Court of Federal Claims have led me to think that those forums are no longer serving their intended purposes. I would replace them with a Court of Chancery equivalent that is empowered to hear disputes without regard to the protections provided by sovereign immunity, which I believe to be a concept that has no place in American democracy.

[Moderator]

Comptroller General Reports to Congress on Audits of Defense Contracts:  

The above is the online hearings from Google.   I don't know how long ot runs but that is it.  It was several days long.

I tried it and was able to get to 70 pages so maybe all 1,000 pages are available.

[Moderator]

32 minutes ago, here_2_help said:

After some reflection I am now of the opinion that no significant acquisition reform can or will come about unless there is first significant statutory reform and significant judicial reform. Too many bureaucratic rules are driven by statutes. (Vern already noted two statutes that he believes should go. To his list I would add the ADA.) Further, recent decisions at the ASBCA and Court of Federal Claims have led me to think that those forums are no longer serving their intended purposes. I would replace them with a Court of Chancery equivalent that is empowered to hear disputes without regard to the protections provided by sovereign immunity, which I believe to be a concept that has no place in American democracy.

I wrote a small piece many years ago about creating a House and Senate committee to straighten out contracting legislation and then provide them only with oversight of the contracting process.  It could be done but it has absolutely no chance.

What is possible but highly unlikely is eliminating the courts from the protest and dispute system.  I would limit the hearing of protests to the Comptroller General and disputes to an entity similar to the boards.  Once you involve the courts you open the process to appeals. No appeals, once and done!

[here_2_help]

1 hour ago, bob7947 said:

I wrote a small piece many years ago about creating a House and Senate committee to straighten out contracting legislation and then provide them only with oversight of the contracting process.  It could be done but it has absolutely no chance.

What is possible but highly unlikely is eliminating the courts from the protest and dispute system.  I would limit the hearing of protests to the Comptroller General and disputes to an entity similar to the boards.  Once you involve the courts you open the process to appeals. No appeals, once and done!

Well, I'm not advocating bringing back Wunderlich, if that's what you're saying.

I'm looking at 41 USC 7105(g)(1) and comparing it to reality.

Quote

(g) Decisions.—An agency board shall—

(1) to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes;

(2) issue a decision in writing or take other appropriate action on each appeal submitted; and

(3) mail or otherwise furnish a copy of the decision to the contractor and the contracting officer.

Emphasis added, of course.

[Moderator]

H2H:

I'm just advocating getting rid of some layers of review.  In the case of a dispute the Boards begin the process.  For example, lets' take a civilian dispute from the Treasury--PACIFIC COAST COMMUNITY SERVICES, INC..

But first, let's look at some congressional perfections that made it into law.

Quote

§7104. Contractor's right of appeal from decision by contracting officer

(a) Appeal to Agency Board.—A contractor, within 90 days from the date of receipt of a contracting officer's decision under section 7103 of this title, may appeal the decision to an agency board as provided in section 7105 of this title.

(b) Bringing an Action De Novo in Federal Court.—

(1) In general.—Except as provided in paragraph (2), and in lieu of appealing the decision of a contracting officer under section 7103 of this title to an agency board, a contractor may bring an action directly on the claim in the United States Court of Federal Claims, notwithstanding any contract provision, regulation, or rule of law to the contrary.

Now, the law provides a choice of venues--a Board or the Court.  PACIFIC COAST COMMUNITY SERVICES, INC. went to the the Gourt of Federal Claims.  After the dispute rolled around the Court trying to find a judge, the Court of Federal Claims issued an opinion on 10/1/19.   Of course, the contractor filed an appeal to the Court of Appeals for the Federal Circuit.  The appeals court issued its opinion/decision of April 30, 2021.  We can safely say that the case rolled around the court system for over two years.

Whenever congress says something like

Quote

someone or something should—

(1) to the fullest extent practicable provide informal, expeditious, and inexpensive resolution of disputes;

and then allows the issue to go to court, they're just kidding.

Now, let's mention a protest that recently made the news and now is in the court system.   Oracle America, Inc., B-416657, B-416657.2, B-416657.3, B-416657.4, Nov 14, 2018. DoD is almost ready the throw the JEDI in the trash.

My presentation has flaws but an unhappy bidder, offeror or contractor can get more than one bite at the apple.  It can devour the orchard.  I believe the Courts should be eliminated fron the protest and dispute process.  A bidder or offeror should get one shot at a protest and that ends with a GAO decision.  Likewise, a contractor  should get one shot at resolving a dispute and that ends with a board of contract appeals.  It will save bidders, offerors, contractors and the government time and money.

[Vern Edwards]

HEARINGS BEFORE A SUBCOMMITTEE OF THE COMMITTEE ON GOVERNMENT OPERATIONS, HOUSE OF REPRESENTATIVES; Comptroller General Reports to Congress on Audits of Defense Contracts

Available for download at Google Books. Just search for the title. More than 1,000 pages. Very large file.

[joel hoffman]

See below

[joel hoffman]

17 hours ago, here_2_help said:

Well, I'm not advocating bringing back Wunderlich, if that's what you're saying.

I'm looking at 41 USC 7105(g)(1) and comparing it to reality.

Emphasis added, of course.

For disputes, facilitated or mediated, non-binding Alternate Dispute Resolution is available with the USACE.

Google Search: “USACE Alternate Dispute Resolution”

See also from the above search, this overview of ADR for USACE: https://usace.contentdm.oclc.org/digital/collection/p16021coll2/id/3883/

Ralph Nash has been involved in some of these actions. 

[joel hoffman]

I’ll add that, if KO’s or their attorneys were familiar with case law, there would be less litigation, in my opinion.

During a couple of my assignments, part of my job was to review REA’s, brewing and ripened disputes and claims, from as much independent perspective as possible. This was done in coordination with Office of Counsel and the KO.

We would advise the ACO, KO or - if appropriate- also the contractor,  of our opinion, as appropriate for the circumstance. When providing an opinion of no merit- for unripened  claims- we advised the contractor of its right to submit a claim.

If you think that this wouldn’t reduce the number of litigated claims, I’d argue with you. We had numerous REA’s which never were ripened to formal claims. The biggest one that I was involved in, including negotiating a settlement, was one submitted as a $167,000,000 REA, settled as a wrap up mod for about $65,000,000.

Numerous others were dropped by contractors or settled as mods.

P.S. Correspondence regarding matters unripened to formal claims were signed as COR. 

[Vern Edwards]

14 hours ago, bob7947 said:

Now, let's mention a protest that recently made the news and now is in the court system.   Oracle America, Inc., B-416657, B-416657.2, B-416657.3, B-416657.4, Nov 14, 2018. DoD is almost ready the throw the JEDI in the trash.

Actually, there are two JEDI protests.

Oracle protested the single-award acquisition strategy and asserted conflict of interest in 2018. It lost at the Court of Federal Claims and at the Federal Circuit. It has now appealed to the Supreme Court in a 169-page petition. The petition is pending.

Amazon protested the award to Microspft at the Court of Federal Claims in November 2019. The court issued a preliminary injunction in February 2020, and denied a government motion to dismiss in April 2021. That protest is still underway at the COFC.

We don't need foreign enemies to hold up important defense programs; we have IT companies and the court system.

This is all because Congress is still pursuing 19th Century contracting policies. God help us, because our government cannot function without contracts and contractors and Congress cannot get its act together about anything.

[here_2_help]

3 hours ago, joel hoffman said:

For disputes, facilitated or mediated, non-binding Alternate Dispute Resolution is available with the USACE.

I'm struggling to understand why any contractor would waste its time with "non-binding" ADR that USACE could ignore and still force litigation.

[joel hoffman]

21 hours ago, here_2_help said:

I'm struggling to understand why any contractor would waste its time with "non-binding" ADR that USACE could ignore and still force litigation.

I believe that the program has been pretty successful. It’s non-binding on either party.

So you would prefer binding arbitration similar to that which is forced upon consumers by car dealers and many many retailers, insurance companies, banks and other commercial entities..?

Edit:  https://newconversations.net/pdf/usarmy-corps-of-engineers-96-ADR-P-5.pdf

“Overview of Alternative Dispute Resolution (ADR): A handbook for Corps managers

Sub-collectionAlternative Dispute Resolution Series

Organizational authorUnited States. Army. Corps of Engineers
Institute for Water Resources (U.S.)

Personal authorCreighton, Jim
Delli Priscoli, Jerome

Report type Technical report
Pamphlet

Publisher[US Army Corps of Engineers]

Date published1996-07

Date digitized2019

Subject Dispute resolution (Law)
Mediation

Report number 96-ADR-P-5

Report series Alternative dispute resolution series. Pamphlet

Notes This guide provides an overview of the basic concepts behind alternative dispute resolution (ADR). It describes the range of ADR techniques available to managers in the U.S. Army Corps of Engineers, from dispute prevention processes (e.g. Partnering), to unassisted procedures (information exchanges meetings, interest-based negotiation), to third-party assistance (facilitation, mediation, fact-finding, mini-trial, disputes review board, and non-binding arbitration), and third-party decision making. The document defines ADR and its benefits and illustrates through case studies how the Corps has used ADR techniques. The guide also provides a framework for choosing an ADR technique. In addition, it includes policy and legal mandates for the use of ADR, a glossary or terms, list of resources, and a lengthy bibliography of ADR references.”

I don’t know if the report is still relatively current. It discussed the ADR Act of 1990 (expired) and Executive Orders of 1991 (Bush, Sr.) and 1995 (Clinton). The Act and EO’s limit the use of binding arbitration to things like internal government Labor Relations.

Any way, there are numerous links found through this search:

“usace Alternate Dispute Resolution”

Edited May 25, 2021 by joel hoffman