Should CICA Be Amended To Place Sealed Bidding and Negotiation on an Equal Footing?

I voted No.

Reason: CICA should be amended to remove all references to particular competitive procedures. It should mention neither sealed bidding nor "competitive proposals" (competitive negotiation). Those references reflect 19th Century thinking, when sealed bidding was the mandatory method of buying and negotiation was used only in wartime, usually with express permission of Congress. CICA eliminated the post WWII system of requiring the use of "formal advertising" (sealed bidding) unless any of 17 statutory exceptions applied.

For a detailed discussion of the history of the distinction between sealed bidding and negotiation, see Wittie, Origin and History of Competition Requirements in Federal Government Procurement, available at www.reedsmith.com. See also Report on the Commission on Government Procurement (December 1972), Vol. I, Appendix G, Historical Development of the Procurement Process. Available at Wifcon.com.

What should matter today is the national goals for acquisition, which can be achieved through any of a variety of competitive procedures. CICA should neither mention nor specify particular procedures. We're in the 21st Century.

Vern:

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CICA should be amended to remove all references to particular competitive procedures. It should mention neither sealed bidding nor "competitive proposals" (competitive negotiation). Those references reflect 19th Century thinking, when sealed bidding was the mandatory method of buying and negotiation was used only in wartime, usually with express permission of Congress.

Unfortunately, that is never going to happen as long as politicians write the laws.

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What should matter today is the national goals for acquisition, which can be achieved through any of a variety of competitive procedures. CICA should neither mention nor specify particular procedures. We're in the 21st Century.

How can we disagree?  CICA is now over 30 years old.  

You voted to keep the absurd hoop jump created by Congress to get to negotiations and that is how your vote is recorded.

I don't agree that it will never happen. In fact, I think we have an real opportunity to persuade Congress to drop references to procedures from the statute and maintain the emphasis on competition. We can call their attention to their own beloved idea: Focus on performance rather than how-to.

As for the "hoop jump"---how much trouble has it caused? Not much. Hardly any. There was a hiccup with the Corps of Engineers. Otherwise, no one reads FAR 6.401, much less cares about it. Industry and Congress are complaining about LPTA, much less sealed bidding.

I voted "yes." If COs aren't going to document consideration of sealed bidding anyway, at least now contract files can be ever slightly more compliant.

If something is given a preference, shouldn't we want to know the qualitative and quantitative benefits of it? Does the rule still meet the creators intent?

In my experience and talks, sealed bidding is most often chosen to get around burdensome internal agency procedures related to even the simplest competitive negotiation procedures.

Jamaal:

Does your agency buy items using detailed government specifications?

bob7947 said:

Does your agency buy items using detailed government specifications?

If we are talking requiring activity (office) prescribed specifications as in descriptive specifications (functional, or technical requirements), performance specifications, but not military specifications, yes.

Jamaal said:

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If something is given a preference, shouldn't we want to know the qualitative and quantitative benefits of it? Does the rule still meet the creators intent?

Years ago, when P. L. 95-507 was born, I asked a small business committee staffer about the congressional intent of the law.  He laughed and explained there was no intent, no one knew what was voted on.  (BTW, 95-507 was based on a mandatory small business test recommended by the COGP)

However, in December 1972, the Commission on Government Procurement (COGP) issued its report.  Congress rerquired GAO to follow-up on the acceptance of the COGP recommendations, arguably, the best study on government contracting.  GAO did that for years when it finally got Congress to let them end its following-up.  Many of the changes for the next 20 years had a basis in the COGP report.  That is why I stress the importance of procurement history.

I did a complete legislative history on CICA in the 1980s.  I remember CICA bills starting in the late 1970s being sponsored by Senator Lawton Chiles, from Florida.  CICA became law in 1984.  I probably looked for why the blurb about consideration of sealed bidding was done but nothing sticks out in my memory.  Recommendation 3 of the COGP is in the quote box below.  That probably explains it as well as anything.  Just remember the times and Formal Advertising = Selaed Bidding.  I found a Naval Postgraduate School paper that might be of some value--I may skim it this weekend and see if he knew what he was writing about.

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Recommendation 3.
(a) Require the use of formal advertising when the number of sources, existence of adequate specifications, and other condi__tions justify its use.

(b) Authorize the use of competitive negotiation methods of contracting as an ac__ceptable and efficient alternative to formal advertising.

(c) Require that the procurement file dis__close the reasons for using competitive methods other than formal advertising in procurements over $10,000, or such other figure as may be established for small purchase procedures.

(d) Repeal statutory provisions inconsistent with the above.  (emphasis added by me)

Bob:

I don't understand your reference to Pub. L. 95-507, Amendments to the Small Business Investment Act of 1958, Oct. 24, 1978. I believe that's the law that created the SBA's 8(a) Program. Why did you bring it up in the context of this thread? Were you pointing out the futility of looking for the legislators' intent?

Vern:

Within it at Chapter 2, Section 211 that amends 8(d), 92 STAT. 1767.  The Small Business Subcontracting Program.  That came from the Manadatory Small Business Subcontracting Test managed by OFPP in accordance with the COGP recommendation.  I was looking for CICA last night and it was in The Deficit Reduction Act of 1984. 

I have to go now.

CICA was part of Pub. L. 98-369, July 18, 1984, the 717 page "Deficit Reduction Act of 1984."

CICA was in Division B of Pub. L. 98-369, entitled "Spending Reduction Act of 1984." It was Title VII of Division B, entitled "Competition in contracting."

Sec. 2701 of Pub. L. 98-369 dubbed Title VII "The Competition in Contracting Act of 1984."

Title VII was divided into five subtitles, A through E.

Subtitle A amended the Federal Property and Administrative Services Act of 1949 (applicable to civilian agencies). It was divided into four sections. (There were no sections 2701 through 2710. Sec. 2711 was the first to follow 2701.)

• Sec. 2711 mandated full and open competition and competitive procedures.
• Sec. 2712 made amendments to the requirements for submission of cost or pricing data.
• Sec. 2713 established procedures for automated data processing dispute resolution.
• Sec. 2714 included "conforming" (technical) amendments" to the Federal Property and Administrative Services Act of 1949.

Subtitle B amended Title10 of the United States Code (applicable to DOD and, in some respects, to NASA).

• Sec. 2721 stated Congressional defense procurement policy.
• Sec. 2722 clarified the applicability of Ch. 137 of Title 10 to the Secretary of Defense (as opposed to the military services and defense agencies.
• Sec. 2723 was similar to Sec. 2711 of Subtitle A.
• Sec. 2724 was similar to Sec. 2712 of Subtitle A.
• Sec. 2725 set rules for "determinations and decisions," i.e., determinations and findings.
• Sec. 2726 limited authority to delegate certain functions.
• Sec. 2727 included "conforming amendments" to Ch. 137 of Title 10 of the U.S.C.

I won't go into detail with respect to the following subtitles:

• Subtitle C amended the Office of Federal Procurement Policy Act.
• Subtitle D created the Procurement Protest System.
• Subtitle E mandated revision of the FAR to implement CICA procurement regulation and a "study of alternatives."

Vern:

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Years ago, when P. L. 95-507 was born

I was just yapping about congressional intent a bit because Jamaal asked a question.  I remember that I was on the steps at Rock Island Arsenal leading to the contracting office when I was told that Congress passed the bill that would become P. L. 95-507.

Vern:

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Focus on performance rather than how-to.

OK, you've got me started.  I believe all contracting law needs to be rewritten and converted to congressional objectives and goals.  What does Congress want from contracting.  I already wrote a blog entry somewhere about it and I suggested creating new Senate and House committees to do it.  Specifics can be written by the FAR Councils--OFPP is an MIA.  The Fools on the Hill are too ignorant to participate in the specifics of contracting.  Congress can maintain oversight of its goals and objectives for contracting by holding hearings.

When we get to agency contracting, every requesting activity (program) must show how their requirement relates directly to their program's goals and objectives as they are stated in their strategic and annual plans. That of course should be tied into the agency's budget supported by the agency's annual report.  

There was a member here from Rocky Flats who was able to tie DOE's clean-up activites at Rocky Flats directly into the various clean-up plans.

bob7947 said:

I believe all contracting law needs to be rewritten and converted to congressional objectives and goals.

Agree. Congress should not specify procedures.

bob7947 said:

The Fools on the Hill are too ignorant to participate in the specifics of contracting.

True!

bob7947 said:

Specifics can be written by the FAR Councils

Can they? The FAR Council delegates the specifics, the sausage-making, to FAR teams, some of which are fools. PepeTheFrog has little faith in these teams and their ability to write specific contracting regulations. Look at what we have so far.

These FAR teams are staffed by federal employees who are no longer subject to the civil service exam and are almost impossible to fire.* That's not a good selection pool to start. Even worse, some on the FAR teams were dumped there because they were the only people the agency could afford to "give up." Members of the FAR teams are sometimes chosen not by exceptional ability to interpret and implement statutes into regulations that will affect billions of dollars of procurement, but instead by asking "Who can we afford to lose?" Instead of being a cadre of professionals, sometimes they're staffed by incompetents performing "other duties as assigned." You know how that goes. Some of them are sub-literate! PepeTheFrog has much hearsay from fellow frogs who have insights into these FAR teams, but just look at their results. You can only blame Congress so much. 

PepeTheFrog's suggestion is to be extremely exclusive and discriminatory in selecting FAR team members, and to select and staff "FAR" fewer of them on each team. Large committees produce garbage, especially when they're staffed with incompetent people.

*@Vern Edwards is right that many are just too lazy or cowardly to go through the process of firing them, but the result is the same.

On ‎5‎/‎3‎/‎2018 at 11:11 AM, Vern Edwards said:

I think we have an real opportunity to persuade Congress to drop references to procedures from the statute and maintain the emphasis on competition. We can call their attention to their own beloved idea: Focus on performance rather than how-to.

How, when, to whom?    Seriously,  I really want to know how to take advantage of the opportunity.

There are many ways, but what I suggest that you do is write an article for NCMA's Contract Management magazine explaining what changes ought to be made to CICA and why. Then, when the article is published, send copies under a cover letter to the chairs of the acquisition committees in Congress, to the acting Administrator of OFPP, to the chief acquisition policy officials at DOD, GSA, and NASA, and to the Section 800 Panel. Also, send a copy to your House representative and Senator under a cover letter and ask them to forward the article to the chairs of the acquisition committees.

Thanks Vern - Not sure I can do it the same justice you can but I will do some reading, research and drafting to see what I can come up with.  I know I could handle the  effort of getting to all concerned if something is published as you mentioned so if anyone wants to do a combined effort let me know!

You will have to make a good argument in order to be persuasive, and the effort of writing that argument out on paper (or on your computer) will help you to establish premises that will lead to your conclusion that the statutes ought to be changed to eliminate mandates to use Congressionally specified procedures.

One might argue that sealed bidding and its variant, competitive proposals contracting:

• are based on 19th Century buying practices that are not always sound in light of the kinds of requirements that the government must now fulfill by contract;
• reflect the outdated idea that competitive price bidding is generally superior to one-on-one price negotiation in the pursuit of fair and reasonable prices;
• are dubious methods in light of the relational nature of many of today's contracts and the pricing arrangements used;
• unwisely demand price competition in the award of cost-reimbursement service contracts, which encourages firms to propose unrealistically low estimated costs and thus forces the government to assess the realism of proposed estimated costs, which it is often unequipped to do;
• slow the contracting process and stifle the innovation that Congress wants from acquisition personnel; and
• are inconsistent with Congress's own preference for the specification of results rather than processes or methods.

I think @Vern Edwards' thoughts are spot on.  The only item I'll add to his list of arguments to explore is that the effectiveness of sealed bidding and competitive proposals contracting is undermined by a shrinking defense industrial base (see below): 

Thank you gentlemen.

One thought is the issue of workforce capabilities.  An issue frequently discussed in WIFCON.  I am an optomist that absent so much regulation right minded acquisition can still occur.   In part because everyday folks buy stuff all time.

Poorly worded thought right now but am I on the right track in making it a part of the arguement?

C Culham said:

Poorly worded thought right now but am I on the right track in making it a part of the arguement?

Yes.

I think the acquisition workforce is capable of doing first rate work. The question is how much of the workforce is competent.

Freedom from statutorily mandated procedural prescriptions will open the door to workforce experimentation, experience, and development, but there will be mistakes along the way until greater competence is achieved. Congress must be willing to tolerate some failure on the way to that goal. Any expectation of instantaneous success is not realistic. After a failure the question should not be whose fault it was, but what was learned and how is that learning being put to good use.

The keys to success are emphasis on better education and training in concepts and principles, on continuous learning, and on skills development.