POSTSCRIPT III: OUR COMPETITIVE SYSTEM by Vernon J. Edwards

A great follow-on article by Mr. Nash and Edwards.  My thoughts in reading.....

By experience a visit to SAM.gov on any particular day one would see thousands of solicitations.  Makes one wonder how many of those solicitations generate the same concerns of format and content?

As a reader two questions occurred to me as a read the example.  What was the market research prior to the issuance of the solicitation such as an RFI and/or preproposal  and site visit), especially when one considers the somewhat far removed location?  No doubt there was an incumbant so back to market research, was there really intent to foster competition or jsut settle that the incumbant would be it?  I may have missed the answers so I apologize for my quick read if I did.

For the cited example, it is obvious to mention that the time allowed to digest, plan and respond to that RFP at a remote, Alaskan site seems to be unrealistic to anyone but, perhaps , the incumbent contractor and maybe not even to that firm.

Incisive article but not really telling us anything new. Essentially an example of just how bad things really are.

The government (in general) doesn't like to acquire commercial services. Period.

here_2_help said:

The government (in general) doesn't like to acquire commercial services. Period.

I will buy in but I do wonder, does not like to or does not know how to?

here_2_help said:

The government (in general) doesn't like to acquire commercial services. Period.

C Culham said:

I will buy in but I do wonder, does not like to or does not know how to?

I didn’t mention above in my earlier post but agree with the additional Nash and Edwards critiques in their Postscript III article. 

I also agree with the two above quotes that the government in general does not like to and many don’t know how to acquire commercial services. 

Although not applicable to Vern’s example here, I will add that, when requesting quotes, the government has the opportunity to negotiate not only the price but the terms and conditions with those firms. That would be a practice often used in the commercial world by professional buyers.

As a former city engineer many years ago, I remember that our purchasing agent often negotiated with supply and service vendors.

I learned in a business law course many years ago and in reading books on effectively negotiating that almost anything is negotiable in the commercial contracting acquisition world, including posted or advertised prices and terms.

However, in my experience with the Federal government and the WIFCON Forum, I’ve observed that many Federal Government acquisition personnel don’t seem to effectively and/or want to negotiate with vendors or offerors/proposers.**

However, these days there are more and more “no haggle” vehicle and other prices being advertised. This trend seems to fit well with today’s population…  

**Equally applicable to services, supplies,  construction, design-build, A-E acquisitions and modifications, REAs, claims, etc.

This was specifically in response to the last two posts, partially quoted above. Sorry to stray from the specific example in the Nash and Edwards Postscript III article and whether the current acquisition system is badly designed.

My remarks did address some general personal observations concerning whether the system is poorly executed. The government can have the best designed business processes but if  acquisition personnel don’t act like professional buyers, it will not be highly successful.

Not everyone is opposed to commercial.

In my contracting office, which has roughly one hundred 1102s, we did about 1,700 new contract actions last year (excluding modifications & close-outs).  The vast majority  - >95% - of these actions were commercial orders.  Of the remaining 5%, most are special cases (BAAs, R&D, inter-governmental cost contracts required by law, etc.).

Excluding the specials, my agency could very well have awarded zero non-commercial contracts last year.

One attractive but never achieved benefit of commercial is adoption of efficient buying practices.  The government really doesn’t know how to do that.

If the government doesn’t understand a specific market segment, a good starting point is market research.  Find how who are leading commercial sources.  Invite a few to talk.  Have them explain how customers typically acquire their services/products.  Ask them about best practices and success factors.  What are the indicators and attributes of the best performers.  How are companies selected?  What are potential pitfalls and how to best mitigate?

formerfed said:

One attractive but never achieved benefit of commercial is adoption of efficient buying practices.  The government really doesn’t know how to do that.

THAT is the main point of the article. The workforce does not know how.

The assertion that the government doesn't like to acquire commercial services is unfounded. Most of "the government" does not know what a "commercial service" is.

The government's acquisition workforce does not know what a service is, commercial and noncommercial.

• It does not understand the characteristics common to all services, commercial and noncommercial.
• It does not know how to analyze its requirements for services, commercial and noncommercial.
• It does not know how to specify services, commercial and noncommercial.
• And, thus, it does not know how to buy services, commercial and noncommercial.

The proof of those assertions can be seen at SAM.gov every day of the year.

Now, why is that the case?

Whose job is it to know?

Vern Edwards said:

Now, why is that the case?

Maybe the lynch pin and maybe not but training.  Show me one required course for acquisition personnel that is strictly and succinctly about commercial product and service acquisition.   They may well exist and Don may well show me the way but my experience suggests "commercial" gets just a modicum amount of exposure in all the  required courses.

Realted?  Maybe yes, maybe no but I do wonder  about this - FAR 12.207(a) "Except as provided in paragraph (b) of this section, agencies shall use firm-fixed-price contracts or fixed-price contracts with economic price adjustment for the acquisition of commercial products or commercial services."  Is there really no equal to a cost reimbursement contract in the commercial sector and does this limitation create an expensive twist to using FAR part 12?

Vern Edwards said:

Whose job is it to know?

Overplayed, overstated yet guidance that is not taken to heart - "The Acquisition Team".   Yep pie in the sky but seriously the very example provided in the article reflects to me that the mission program area simply tossed something over the cubicle wall for acquisition to handle and walked away hoping and expecting that they will get their food service.  But as the article suggests even the most reasonable person would wonder why it takes so much paper to make it happen.   Did the mission/program people even read the solicitation and understand what they must administer from pre-solicitation, award, post award and completion.  It is their project, their mission, they should have a huge say in the acquisition.

C Culham said:

Maybe the lynch pin and maybe not but training.  Show me one required course for acquisition personnel that is strictly and succinctly about commercial product and service acquisition.

I may get some riled up here, but why do acquisition personnel need training strictly and succinctly about commercial products and services?  It’s not complicated.

What’s needed is a basic understanding of the specific market and that’s easily acquired through some time online and maybe one-on-one sessions with some industry concerns. 

I agree with your comment about the acquisition team playing the role.  But often the team looks to the contract specialist/contracting officer.  If that person can’t suggest ideas and lead to a sound path,  we are doomed.

formerfed said:

I may get some riled

No rile.  My comment is based on the observation that trainings do mention FAR part 12 but it seems such mentions are fleeting to me as they concentrate on FAR 15 like procedures.

formerfed said:

But often the team looks to the contract specialist/contracting officer.

Still not riled.  They should but as the acquistion staff has to have some modicum of what they are buying the team should have some modicum of what the acquisition process is or can be.

C Culham said:

Maybe the lynch pin and maybe not but training.  Show me one required course for acquisition personnel that is strictly and succinctly about commercial product and service acquisition.   They may well exist and Don may well show me the way but my experience suggests "commercial" gets just a modicum amount of exposure in all the  required courses.

I don't know of one that is required.

You just gave me an idea 🤔

C Culham said:

Still not riled.  They should but as the acquistion staff has to have some modicum of what they are buying the team should have some modicum of what the acquisition process is or can be.

Yes.  Agree.  I’m encouraged by seeing some agencies lately requiring more contracting training for PMs and CIO staff

I believe the commercial services example is just symptomatic of a much larger issue.  That’s the 1102 workforce is risk adverse.  Nobody wants to try anything new or do anything different from what worked in the past.  Any new work or requisition assignment starts with searching to find a past example that can fit.

Nobody wants to be criticized or blamed.  The chances of being rewarded for trying something new is small compared to the magnitude of being faulted for making a mistake.

If you notice, few new initiatives or major changes immediately get implemented.  Rather most wait until new detailed policies and instructive are written and issued and training is prepared and conducted.  By following the step by step instructions of the policies, adhering to the training, and copying examples, the 1102 reluctantly proceeds.

On 2/2/2024 at 9:32 AM, formerfed said:

I believe the commercial services example is just symptomatic of a much larger issue.  That’s the 1102 workforce is risk adverse.  Nobody wants to try anything new or do anything different from what worked in the past.  Any new work or requisition assignment starts with searching to find a past example that can fit.

The problem goes way beyond the 1102 workforce.

The classic example is the Army's procurement of the M9 "modular handgun," a pistol, a relatively simple close combat weapon that is rarely used in combat. A commercial item if ever there was one. (Speaking now as someone who has owned a fair number of pistols and revolvers and who carried a 1911 in Vietnam.)

The procurement was roundly criticized by, among many others, Sen. John McCain and the Army chief of staff at the time, General Milley. See:

https://ec.militarytimes.com/static/pdfs/americas-most-wasted-the-army-s-costly-misfire-10-2015.pdf

https://crsreports.congress.gov/product/pdf/IF/IF10911/3

Gen. Milley reportedly said:

“We're not figuring out the next lunar landing. This is a pistol. Two years to test? At $17 million? You give me $17 million on a credit card, and I'll call Cabela's tonight, and I'll outfit every soldier, sailor, airman and Marine with a pistol for $17 million. And I'll get a discount on a bulk buy.”

Spoken by a man who wore the Combat Infantryman's Badge.

A mere contracting officer or chief of a contracting office would have been powerless to change that procurement.

That's a bureaucracy problem, not a workforce problem, and a very old one.

Vern Edwards said:

The problem goes way beyond the 1102 workforce.

A mere contracting officer or chief of a contracting office would have been powerless to change that procurement.

That's a bureaucracy problem, not a workforce problem, and a very old one.

That’s a bureaucracy problem is so true.  A program manger in charge of a military weapons program with a 350 page specification won’t be swayed by any contracting person.  That person knows exactly what he wants and how they are getting there.

Senator McCain’s report has some excellent thoughts on alternative approaches.  If the Special Forces uses off the shelf weapons (or ones slightly modified), most soldiers could as well.

On 1/31/2024 at 8:25 AM, joel hoffman said:

I learned in a business law course many years ago and in reading books on effectively negotiating that almost anything is negotiable in the commercial contracting acquisition world, including posted or advertised prices and terms.

However, in my experience with the Federal government and the WIFCON Forum, I’ve observed that many Federal Government acquisition personnel don’t seem to effectively and/or want to negotiate with vendors or offerors/proposers.

On 2/2/2024 at 11:32 AM, formerfed said:

I believe the commercial services example is just symptomatic of a much larger issue.  That’s the 1102 workforce is risk adverse.  Nobody wants to try anything new or do anything different from what worked in the past.  Any new work or requisition assignment starts with searching to find a past example that can fit.

These are insightful quotes that truly get to the heart of the problem at low dollar thresholds (the two recent posts on this thread about bureaucracy are more applicable to high-dollar acquisitions).  In my experience we must always take a grassroots approach to change in government.  It will never begin at a level higher than a Chief of Contracting Office/ Procurement Director.

Start with one acquisition in your office.  Give the job to somebody that has been buying the stuff your office buys for half a career.  Make sure no personality problems will get in the way (see above).  Pay this person for the time it takes to study the Federal Register comments, the Section 809 Panel's report, as well as the Nash & Cibinic Reports on this subject matter.  Then follow formerfed's advice:

On 2/1/2024 at 6:20 PM, formerfed said:

I may get some riled up here, but why do acquisition personnel need training strictly and succinctly about commercial products and services?  It’s not complicated.

What’s needed is a basic understanding of the specific market and that’s easily acquired through some time online and maybe one-on-one sessions with some industry concerns.

I will add that you should pick a contractor known by your office to cooperate, that will be willing to take the hits from SBA, DOL, or others along with the CO, and that will be willing to laugh off any beginner's mistakes by the CO.

If enough COCO/PDs do this, things will change.

On 2/1/2024 at 3:20 PM, formerfed said:

I may get some riled up here, but why do acquisition personnel need training strictly and succinctly about commercial products and services?  It’s not complicated.

I disagree! It is complicated.

There is an entire FAR part devoted to it. It prescribes significant departures from standard practice in specification, clause prescription, solicitation, and subcontracting.

Many persons are ignorant and confused. "Is construction a commercial item?" "What clauses must be flowed down to subcontractors?" et cetera. Part 12 provides for some discretion with which many 1102s are not accustomed, and it still prescribes a number of policies with which the commercial market is unaccustomed: e.g., full and open competition, SAM, set-asides, etc.

After 30 years since FASA, the FASA policy goals are still not fully understood by 1102s, and certainly not by functional personnel. Some of the functional organizations which 1102s must support have not been trained and adapted to those policies or trained in commercial product and (especially) service specification.

Go back and look at the RFP I wrote about. Does is read like something written by persons who don't need specialized training?

Probably neither here nor there yet offered in support of Vern's comments.   Not that he needs my support it is just my way of saying I agree!!!!!!!!

After reading todays additions to this thread I pulled up SAM.gov and the very first combined synposis/solicitation of a commercial product/service I encountered.   A professed simplified acquisition that I concluded was not in excess of the SAT (guess on my part but wording of the solicitation made it seem so).   With intent FAR 52.212-1 was tailored to change "offer" to "quote" but FAR 52.212-4 was included by reference only no tailoring.  Source selection process was stated as "low price technically acceptable" where a techinical proposal and a separate price proposal were requested.  

I left SAM.gov imagining what I would find if I kept looking.

Vern Edwards said:

I disagree! It is complicated.

There is an entire FAR part devoted to it. It prescribes significant departures from standard practice in specification, clause prescription, solicitation, and subcontracting.

FAR part 12 is short in length.  Someone can carefully read through it in a couple hours.  Sure, it departs from many standard practices but so many of us are really stuck with tradition.  We know only certain ways to process tasks.  We are ingrained with cookbook approaches and must rigidly be adhered too.  We try way too hard to avoid criticism from peers and superiors and even more so to avoid protests.

i think someone without being burdened by all this baggage and a few years of serious contracting experience could successfully do a FAR contract and conclude it’s not complicated.

formerfed said:

avoid protests.

Interesting that in a different discussion thread in Forum about the MITRE "Contract Protest Diagnostic Tool" sustained protests regarding "customary commercial practices" for FAR part 12 acquisitions is a identified risk area.  The other side of the "avoid" coin!

Getting a little off topic here but I’ll add so many problems we have is due to lack of careful and objective thinking.  We tend not to be creative in conducting acquisitions.  One of the first things 1102s to with new assignments is look for examples to copy.  Then we impose what we know best and comfortable with from past experience even when it really isn’t that applicable.  That’s why so many simple things like Simplified Acquisitions, FAR 8.4 actions, and OTAs get fouled up.

The regulations and policies for these aren’t complicated.  But instead of reading them closely and just proceeding with the acquisition, 1102s get nervous.  They want to be told what to do and shown what worked in the past.  So we end up with FAR 15 principles injected with FAR 13 and 8.4 transactions.  When OTAs were pushed more heavily, many agencies gave them to contracting officers to do.  We ended up in many instances with FAR 15 lookalikes including terms and conditions which don’t apply.

Going back to the topic on hand, I think commercial item contracting isn’t hard if it’s done properly.  All that’s needed is someone reasonably intelligent, has an open mind, isn’t reluctant to do something outside their comfort zone, and skips over methods that don’t apply.  There’s no need for searching for prior examples or detailed training because FAR 12 is straight-forward.

On 2/1/2024 at 9:53 AM, C Culham said:

training

Vern Edwards said:

training

Once you talk about training you introduce bureaucracy.  I am trying to butt that out and emphasize personal initiative!  Professional study!

The road to where we are now was paved with training materials.

Voyager said:

The road to where we are now was paved with training materials.

Are you therefore saying they are adequate with regard to commercial product or service?  If yes my view differs and is supported by the lack of a specific training regarding FAR part 12.

To reinforce, yours and FormerFed's position seems to suggest everything is fine and dandy and those that have been trained are not applying professional study, intiative, experience, etc.  But it has not by specific examples offered and as such leads to my conclusion regarding training   

Remember my comment and continued comments are aimed at the "Team" not just the 1102 yet inclusive of the 1102, along with the 1105, 1101.

@formerfed

formerfed said:

FAR part 12 is short in length.  Someone can carefully read through it in a couple hours.

And understand and apply it in practice?

formerfed said:

The regulations and policies for these aren’t complicated.  But instead of reading them closely and just proceeding with the acquisition, 1102s get nervous.

I wonder why? Read this from FAR 12.213, Other commercial practices:

Quote

It is a common practice in the commercial marketplace for both the buyer and seller to propose terms and conditions written from their particular perspectives...  The terms and conditions prescribed in this part seek to balance the interests of both the buyer and seller. These terms and conditions are generally appropriate for use in a wide range of acquisitions. However, market research may indicate other commercial practices that are appropriate for the acquisition of the particular item. These practices should be considered for incorporation into the solicitation and contract if the contracting officer determines them appropriate in concluding a business arrangement satisfactory to both parties and not otherwise precluded by law or Executive order.

Now suppose that a contracting officer, in accordance with FAR 12.102(b), decides to conduct a competition for a commercial service pursuant to FAR Part 15. How should that CO pursue that "common practice" under FAR 15.206(d) and 15.306(d) and the GAO and COFC case law about discussions with offerors in the competitive range?

I am not saying that it cannot be done. I could do it. What I am saying is that it would take a lot of thought and background knowledge to sell that idea to management and legal and then work it out successfully. And I say that some special training in that regard would be very helpful, even essential.

To say that (1) the regulations about commercial items are not complex and that (2) they can be read, understood and applied in a couple of hours are, in my opinion, remarkable assertions. I will have worked in this business for 50 years come this August, and I would not make that claim for myself.

But I will not argue the matter further. We disagree.

On 2/20/2024 at 6:56 PM, C Culham said:

To reinforce, yours and FormerFed's position seems to suggest everything is fine and dandy and those that have been trained are not applying professional study, intiative, experience, etc.  But it has not by specific examples offered and as such leads to my conclusion regarding training

Okay, I agree we can get riled up over theory but in the end it may do no good.  Instead, I suggest a ceasefire of our academic debate on this thread unless we hear from a current practitioner that can lead us to the example you seek above.  I know who I would like to hear from - she is the FBI Contracting Specialist featured by the late Senator McCain as a shining example of a counterpoint to the Army's handgun acquisition that Vern cites above.  See her SAM.gov Contract Opportunity RFP-OSCU-DSU1503 here: https://sam.gov/opp/cb29a43649fc2efa89f624b8f461e8f3/view

On 2/1/2024 at 7:05 AM, Vern Edwards said:

Whose job is it to know?

Apparently in this excellent example it was, among other teammates, Jennifer Unger, as that is the name that shows up in SAM.

Voyager said:

Okay

Well I will upack just a little for you.    Commercial Item yet use of the Uniform Contract Format.  I think FAR 12.303 has a "shall" in it.  SF-26?   And both 52.215-1 and 52.212-1 in the solicitation the latter not tailored.  I stopped there...... 

Voyager said:

ceasefire of our academic debate

Agreed as my case is made and I will leave it at that.

Carl!  She'll never show until we admit that perfection is the enemy of excellence.  Keep reading it - I have so many questions, like why is Section M the longest section besides C.  We must not prejudge.

Voyager said:

prejudge.

Wouldn't it be post judge?

You are changing the landscape.  I never argued perfection.  I would argue training would support tailoring, use of UCF, etc.  No procurement is perfect. Training leads to excellence.

C Culham said:

Training leads to excellence.

What really leads to excellence is market research - understanding the marketplace, knowing what differentiates top providers from the others, finding out from experiences of others what approaches work and what doesn’t,  and especially gathering and applying lessons learned from other buying organizations.

formerfed said:

What really leads to excellence is market research - understanding the marketplace, knowing what differentiates top providers from the others, finding out from experiences of others what approaches work and what doesn’t,  and especially gathering and applying lessons learned from other buying organizations.

The discussion in this thread began with an article that provided observations and conclusions regarding use of acquisition processes for a commercial product and services.  I already raised wonder about market research which in truth appears to be unknown.  The thread then morphed to debate over training regarding commercial acquisition.   Your revisit to market research as a premise on your part is but one element that could be an added observation and/or conclusion.  In truth I see it as further support that training helps breed excellence not the single factor that creates the excellence of a commercial acquisition.

C Culham said:

In truth I see it as further support that training helps breed excellence not the single factor that creates the excellence of a commercial acquisition.

Agreed.

On 2/22/2024 at 8:19 PM, C Culham said:

I already raised wonder about market research which in truth appears to be unknown.

Emphasis added. Truer words were never written.

FAR 2.101 defines "market research" as follows: "Market research means collecting and analyzing information about capabilities within the market to satisfy agency needs."

Well, that's half-baked and FAR-like, but it's a process of some kind, right? So what are the procedures, sources of information, and techniques of analysis?

Is knowledge of how to do market research supposed to reside in the head of every 1102 like Athena in the mind of Zeus, or do they have to learn it somewhere? Or is it just common sense?

1102s certainly won't learn market research by reading the slightly more than two pages of FAR Part 10, which was added to FAR almost 30 years ago, by FAC 90-32, September 18, 1995. And it has hardly changed, if at all, in the ensuing years.

Why is FAR Part 10 so short? First, because the FAR is not a textbook, and second, because the people who wrote FAR Part 10 did not have a clue about how to conduct buyer/consumer market research. They could not have stood up before an audience of 1102s and extemporaneously described the process, procedures, and techniques in any detail, which means to me that they weren't competent to write a regulation about it and should not have done so. Worse, they didn't see to it that adequate guidance and instruction would be provided to the people they told to do it.

How complicated is market research? Well, the fifth edition of Wiley's Market Research Handbook (2007) is 656 pages long and costs $176.00 new at Amazon. Springer's newer Handbook of Market Research (2022) is 1,132 pages and costs $700.00. Go figure. You can look at the tables of contents online. How pertinent do the contents seem to government buyers? They were written for sellers. Most publications about market research are written for sellers, not buyers. But the FAR authors thought the term sounded good, so they used it. It would have made more sense to give FAR Part 10 the title, Purchasing Research. 

I'm sure that various agencies have published market research guides, DHS has written one. But if you want to learn how business people buy commercial items buy and read Purchasing: Selection and Procurement for the Hospitality Industry, 9th Edition, (2017) by Feinstein, et al. A mere 700 pages. Available at Amazon, but not cheap. Highly rated.

Don't tell me that buying commercial items is simple and that 1102s don't need special training in how to do it. Think choosing and  buying handguns for law enforcement and the military is easy? Handgun buyers know that they are technically complicated in terms of design, especially pistols, and, in combination with the many varieties of ammunition, are remarkably complex systems in terms of performance (reliability, accuracy, lethality, and durability) and maintenance.

BTW, I do not sell training about market research or buying commercial items, and I am not going to do so.

Vern Edwards said:

Don't tell me that buying commercial items is simple and that 1102s don't need special training in how to do it. Think choosing and  buying handguns for law enforcement and the military is easy? Handgun buyers know that they are technically complicated in terms of design, especially pistols, and, in combination with the many varieties of ammunition, are remarkably complex systems in terms of performance (reliability, accuracy, lethality, and durability) and maintenance.

Here’s a great example of market research by CBP.  They learned from DoD, FBI, and others.  They issued a solicitation, gave offerors three months to respond, used a Justice lab for testing, had field personnel (inspectors, agents, etc.) involved in actual live firing and evaluation of offeror products, conducted negotiations and made award seven months after receipt of responses.  Their award was large in size because it covers all of DHS.  I think just having a team of knowledgeable people in the acquisition and personal weapons processes and spending the effort to understand industry capabilities made the difference.  It doesn’t require an 1102 to be a firearms expert.  Not does it require a PM to be a contracting expert.  But a team of members that understand the landscape leads to success.

CBP