Here are two provisions of law to get rid of as soon as possible, for the sake of the country

Sure, why not? Now that that we are approaching $6 trillion in pandemic supplements within a year, the lid is off and anything goes.

Vern, would you replace them with some other statute or just let the statutory field be wide open?

How about requiring justifications and approvals before conducting full and open competition?

Don Mansfield said:

How about requiring justifications and approvals before conducting full and open competition?

Why ?

joel hoffman said:

Why ?

Why should full and open competition be the default? Shouldn't the decision be justified?

Don Mansfield said:

Why should full and open competition be the default? Shouldn't the decision be justified?

Isn’t that somewhat contradictory to the logic of not requiring D&Fs when the rational is self-evident?

Don Mansfield said:

How about requiring justifications and approvals before conducting full and open competition?

This sounds like a step toward the pre-CICA days when there were 14 exceptions to the use of sealed bidding (formal advertising) for DoD, some of which, such as a sole source or the use of a cost reimbursement contract, required a D&F.

formerfed said:

Isn’t that somewhat contradictory to the logic of not requiring D&Fs when the rational is self-evident?

If there were no CICA, why would the justification for full and open competition be self-evident?

Don Mansfield said:

If there were no CICA, why would the justification for full and open competition be self-evident?

A big part of reform is simplifying things.  That includes eliminating unnecessary documentation.  If the rule is full and open competition, no need for justification unless you are taking an exception.  If someone is restricting competition, CICA or otherwise, the rational needs explained.  Contracting people aren’t good about explaining in file documentation why certain actions are taken. Thus the reason for forms like JOAFC and D&Fs.

Retreadfed said:

Vern, would you replace them with some other statute or just let the statutory field be wide open?

@RetreadfedYes, I would replace them with some other statute.

I want to get rid of the requirement for full and open competition (F&OC), which requires that all responsible offerors be permitted to compete. I also want to get rid of the requirement for a competitive range and discussions and final proposal revisions from all offerors within that range. I want the government to be able to quickly choose a prospective contractor based on its qualifications and then negotiate a contract one-on-one, as it does for architect-engineer services. I do not believe that "best value" tradeoff competition based on essay-test proposals produces better contracts and prices than can be had through one-on-one negotiations.

I think that F&OC and the process folderol that goes with it is wasteful and inefficient. I think that the protest system case law that has arisen from that process has yielded nothing but delay and needless bureaucracy. I think that there is no evidence that F&OC produces better value than a less expansive requirement for competition.

F&OC cannot be justified on business grounds; it can only be justified on political grounds. Given that modern government is contracted out, and given the challenges that confront it, I do not think we can continue to afford such a wasteful and inefficient policy.

@Vern Edwards Excellent ideas.  Decisions like this on competition and what’s best for the government should be entrusted to Contracting Officers with input from program managers and legal advisors.  Another thing,  when discussions are held in a competitive environment, common sense rules should prevail to obtain the best deal for the government and not the arcane procedures we have now.

formerfed said:

Another thing,  when discussions are held in a competitive environment, common sense rules should prevail to obtain the best deal for the government and not the arcane procedures we have now.

formerfed, can you please elaborate on the above point?

What are some common sense rules that you advocate to prevail?

What arcane procedures would you eliminate?

Thanks. 

“DICTIONARY Definitions from Oxford Language Dictionary

ar·cane

/ärˈkān/

adjective

1. understood by few; mysterious or secret.“

formerfed said:

If the rule is full and open competition, no need for justification unless you are taking an exception

Right, but Vern is proposing throwing out that rule. I'm adding to that by saying that there would have to be a J&A to conduct full and open competition. Nobody would ever write a J&A again.

joel hoffman said:

formerfed, can you please elaborate on the above point?

What are some common sense rules that you advocate to prevail?

What arcane procedures would you eliminate?

Thanks. 

“DICTIONARY Definitions from Oxford Language Dictionary

ar·cane

/ärˈkān/

adjective

1. understood by few; mysterious or secret.“

Joel,  negotiate to obtain the most favorable deal you can.  The current rules on things like communicating weaknesses in total, establishing a competitive range, and having a common cutoff date for concluding discussions don’t make sound business sense.    

Take a look at this first decision as an example wifcon.com/pd15306d3.htm

formerfed said:

Joel,  negotiate to obtain the most favorable deal you can.  The current rules on things like communicating weaknesses in total, establishing a competitive range, and having a common cutoff date for concluding discussions don’t make sound business sense.

Thanks, formerfed. How would you negotiate the best deal in a competitive environment? 

Or are you saying to negotiate the most favorable deal in other than a competitive environment and skip dealing with multiple firms?

Skipping telling multiple firms what their weaknesses and other undesirable or less than favorable features are (bargaining for better performance) and skipping concluding discussions and asking for revised offers seems to imply skipping competition. If not, what competitive procedures would you suggest? 

Just still not understanding your points.

I've conducted lots of source selections - most were for construction and design-build contracts with several installation and facility O&M service contracts. I have conducted a lot of discussions and negotiated numerous sole source contracts, changes, REA’s, claims and other mod types.

I’m just curious how you would recommend source selections and negotiations be conducted.  
Thanks. 

I think that the 1997 FAR Part 15 rewrite was a significant improvement.  It allowed and emphasized bargaining for better performance in competitive environment, even when a proposal meets the minimum requirements. The problem is that a great many KO’s have no idea what that is. I think that ignorance is based upon legacy discussion procedures and pre-conceptions that were handed down to them. I’ve had several KO’s tell me even within the past five years that “we can’t discuss less then desirable features if they meet the minimum requirements”!!!  Several entire USACE Districts were operating under such misconceptions.

Much of that is based upon the old FAR 15 emphasis on what one shouldn’t or couldn’t discuss. For example,  the prohibitions against “technical leveling”, which were misunderstood and taken to extremes, were eliminated back in 1997. I’ve had KO’s tell me that  this is still prohibited, so we can’t ask for improved features or better design solutions - that we must take what they offer and improve later through the change process, if funds are later available. Nonsense! 

I have little confidence that many in the federal contracting community are now or would be effective negotiators, able to “negotiate the most favorable deal for the government”, especially for technically complex acquisitions and particularly if they would have to deal with a single firm in a non-competitive environment, such as a qualifications based selection, then negotiate the price.

A/E contract negotiations, as an example, don’t provide “the most favorable deal” for the government, certainly in terms of pricing.

My opinion is based upon personal experience, observations, feedback from my D-B class students over 21 years, as well as the overall WIFCON Forum context over the years.

Don Mansfield said:

Why should full and open competition be the default? Shouldn't the decision be justified?

Don, If you are saying that the government isn’t qualified to conduct competitive acquisitions, who is going to negotiate the “most favorable deal you can [get]” for the multitude of contracts each year? What are their qualifications to do this?

Competitive acquisitions have been conducted across the US for decades, probably for centuries. The States, municipalities and other public institutions do it. It seems to be a transparent and accountable process to promote honesty and the public’s trust in public contracting.

”No-bid contracts” (anything other than public bid openings) are routinely criticized in the media, news and social discussion platforms. Typical perceptions expressed are such as :  dishonest, underhanded, under the table, wasteful, special interests, favoritism kickback arrangements, etc., regardless of whether or not they are.

joel hoffman said:

Don, If you are saying that the government isn’t qualified to conduct competitive acquisitions, who is going to negotiate the “most favorable deal you can” for the multitude of contracts each year? What are their qualifications to do this?

I'm not saying that. I'm questioning why full and open competition should be the rule. Because tradition?

Don Mansfield said:

I'm not saying that. I'm questioning why full and open competition should be the rule. Because tradition?

Because it is public policy, other than exceptions for set-asides or sole source awards for special classes of the general business community. Have you asked your question to any member of Congress ? Do you think that they favor restricting competition on an equal or favored basis in comparison to allowing their constituents opportunities for the government’s business? Have you been responsible to investigate and answer congressional complaints of favoritism, discriminatory requirements or other barriers to constituents’ chances to compete for government business? 

I’ll also answer your question with another question.  If the government can’t seem to be able to get the best deal with free and open competition, do you think that using other than free and open competition will result in more favorable deals?

Expressions like “get the most favorable deal you can get” are somewhat meaningless . Anyone can negotiate “the most favorable deal that (they) can get”.  I had a couple of Area Offices document every record of negotiation with statements to the effect that “the final settlement is the most favorable deal that we can get”.   How good is that deal?

Is “the best deal that you can get” measurable -quantifiable or comparable with (what)?

Of course, everyone is entitled to their opinion. Until “public policy” changes, I think these are all academic or personal opinion debates anyway.

Since Congress has gone wild in their recent spending habits, I suppose that anything could happen. There is no accountability for current  spending habits or its fiscal consequences.

This is from the Patent and Trademark Office.  It’s an alternative to full and open competition where the CO and program office decide on participants based on personal knowledge of the marketplace

Quote

6.1.1 Alternative Competition Method

a. After conducting market research, the CO and Contracting Officer's Representative (COR) will use their technical expertise and understanding of the marketplace to determine which vendor(s) is/are the most likely to successfully meet the agency's needs and are thereby eligible to participate in an alternative competition.

joel hoffman said:

I have little confidence that many in the federal contracting community are now or would be effective negotiators

I just wonder in whose eyes.  My optimistic view is that most go through life effectively negotiating all kinds of stuff in their personal lives, yet there is no confidence that those same after requiring thousands of hours can not do it for the federal government if given the opportunity to do so via a more common sense approach.

My concern is how much would stuff like this increase?  https://www.justice.gov/usao-edwa/pr/clarkston-business-owner-and-federal-government-contracting-officer-indicted-bribery

Vern Edwards said:

as it does for architect-engineer services.

Yes! I will probably get chastised for suggesting another pilot program ( and noting former's post just now) why not give the opportunity and authority to try it like USPTO  with hopes that it would lead to permanent change.

Carl, do you know why A/E contracts  use QBS selection with negotiation of a “fair and reasonable price”?

joel hoffman said:

Because it [full and open competition] is public policy, other than exceptions for set-asides or sole source awards for special classes of the general business community.

@joel hoffmanYes, a 19th Century policy dating back to 1808 that made sense when most purchases were for relatively simple supplies and services and were made using sealed bidding (formal advertising). But today it is inefficient, needlessly costly and time-consuming, and makes us an unattractive customer to the very companies that we need the most. Industry is telling us that, and we need to listen.

The CICA "full and open competition" standard and the procedures that it and the protest tribunals have imposed upon us, see e.g., FAR 15.306, are impeding our ability to respond to the challenges that face our government, a government that has, since the early 1970s, become increasingly dependent on contractors to do its work, even the work of making war. 

We can't afford full and open competition anymore, unless we want to be second-place to China, and we contracting professionals, of all groups, need to explain that to Congress and seek a less expansive, more efficient, standard for competition.

There is no evidence that full and open competition yields better outcomes than a less expansive standard would produce.

We are forced to resort to "reforms" like OTAs in order to get around it. Enough! We need to burn our utopia of rules and sprinkle salt on its earth so it will not arise again. CICA, and all its works, delenda est!

Here is the US Patent and Trademark Office Acquisition Guidelines, including authority references: 

https://www.uspto.gov/sites/default/files/about/vendor_info/ptag.pdf

The referenced Patent and Trademark Office law is here:

https://www.uspto.gov/web/offices/pac/mpep/consolidated_laws.pdf

I believe that this office is not under the Executive Branch. Do you think that Congress would provide broad authority to the general federal agencies to use similar methods?

joel hoffman said:

Do you think that Congress would provide broad authority to the general federal agencies to use similar methods?

Not if pros like you continue to say that CICA policy makes sense.

I don't know and don't care about PTO's "guidelines," or FAA's, or USPS's, or BPA's, or the guidelines of any of the other non-FAR agencies. I'm not the cut-and-paste type. I want to design from scratch. I want a new world, not a cloned one.

Vern, I don’t think that I said that CICA makes sense, as currently written.

I’m questioning what practical alternatives there are, assuming that Congress agrees, given the general capabilities and business judgement of the overall federal contracting and acquisition workforce - as evidenced by the general views that you and others have expressed over the years in the WIFCON Forum.

Its one thing to be able to pump out awards but that doesn’t necessarily mean that they are quality or economically affordable awards, in the best overall interest of the taxpayers, under any method, including full and open competition.

The acquisition workforce, including many Contracting Officers are primarily interested in getting their programs awarded and executed.

There should also be reasons to protect the “Government’s interests”, which should include the  “citizens’ interests, the “public’s interests” and the “taxpayers’ interests”.

Since you initiated this thread without any reasons or explanation for your opinion, I assume that means that everyone is entitled to express their own opinion. 

If you and some other pros can start from scratch and convince Congress, go for it. 🤠

joel hoffman said:

Carl, do you know why A/E contracts  use QBS selection with negotiation of a “fair and reasonable price”?

Well the Brooks Act and some good lobbying.  No doubt other details but does it really matter?

Vern Edwards said:

I want to design from scratch. I want a new world, not a cloned one.

So one professional here that would help lobby for the new world!  I am in!

Just now, C Culham said:

Well the Brooks Act and some good lobbying.  No doubt other details but does it really matter?

It does really matter.  Every State has professional licensing requirements for architects and engineers for design of facilities, utilities, transportation systems, etc. that will be used by the general public. These licensing jurisdictions as well as the professional organizations have  codes of ethics and licensing qualifications. They generally prohibit price competition for  professional services in order for licensed designers not to be motivated or have to cut corners, risking health and safety of occupants and users.

A/E services involve the design of real property facilities, public works, civil engineering,  other utilities, dams, flood control, transportation systems, etc., etc., that affect life safety, health, general public, etc., etc.

Unlike many typical services, the design products are often intended to be safe, functional and last for years, decades and sometimes centuries.

Most people want to trust that designs of public (or private) facilities, properties and systems are safe, functional and won’t fail while they or their families are in, on or using them. The primarily consideration for retaining an architect, engineer or A/E team should be on the basis of their qualifications, not price.

joel hoffman said:

Since you initiated this thread without any reasons or explanation for your opinion, I assume that means that everyone is entitled to their own opinion.

People will have their own opinion whether they are entitled or not.

I wanted to express an opinion without assuming that everyone is interested. I wanted to see if there is any interest in my reasons. It appears that there is some interest among a few of the regular denizens of Wifcon. But I see no evidence thus far of much interest in the larger world. Same old, same old.

Most people in our field know next to nothing about the history of policy and procedure, and so have no sense that today's policy was not necessarily cut in stone at the creation.

Anyway, not much is likely to happen any time soon. Our legislative and executive branches are pretty much dysfunctional, and our presidents don't understand that almost everything they want to accomplish they will have to accomplish through contracts and, for that reason, they should pay attention to contracting policy and procedure and how long it takes to award a contract.

Vern Edwards said:

I want to design from scratch. I want a new world, not a cloned one.

I personally don’t see most of the current 1102 workforce doing things much differently even with more flexibility.  Look at all the GSA Schedule buys that follow FAR 15 procedures.  Or advertising proposed GSA Schedule actions on eBuy so all of the hundreds of contract holders can participate even though rules say you need need to solicit enough to reasonably ensure three responses.  Then there are people doing commercial buys using RFPs when FAR 13 is allowed.  Even some potentially fruitful things like IDIQ contracts get screwed up because of misuse and abuse.  So now there’s fair opportunity requirements to notify all contract holders (sometimes numbering in the hundred) and the ordering process is often ridiculously complicated.

I would like to see special COs warrants granted to select individuals to do what makes good business sense.  That could include reasonable competition with a reasonable number of known entities.  It would include A&E type approaches for professional services.  Requirements for synopsis wouldn’t apply especially if those COs ensure a fair share of work to small businesses.  OTA type procedures could apply as appropriate.  Those COs will be held accountable for results and get extra pay for their added responsibilities.

joel hoffman said:

Unlike many typical services, the design products are often intended to be safe, functional and last for years, decades and sometimes centuries.

I might give you centuries and possibly decades but to imply the service industry, other than A-E, has no interest in safe and functional escapes me.  

Back to my point, and while the OP was an attempt to create thoughts with regard to creation of guiding statute from the ground up, I offered selection based on qualifications and then get to price as a dynamic that has credibility beyond A-E.  After all it seems it is practiced to some extent in GSA FSS and even more so in sole source 8(a) procurements.   Of course I am at risk in mentioning either as conversation will lead to criticism of success  but all the same they are examples.  I would even go as far to say that agencies have created their own multiple award IDIQ processes to manipulate selection by qualification rather than price.  From initial award where basis is on a sample project to the award of multiple IDIQ contracts that carry nothing that resembles pricing, leaving it to the imagination of users to invent price with fair opportunity.

C Culham said:

I might give you centuries and possibly decades but to imply the service industry, other than A-E, has no interest in safe and functional escapes me.  

Back to my point, and while the OP was an attempt to create thoughts with regard to creation of guiding statute from the ground up, I offered selection based on qualifications and then get to price as a dynamic that has credibility beyond A-E.  After all it seems it is practiced to some extent in GSA FSS and even more so in sole source 8(a) procurements.   Of course I am at risk in mentioning either as conversation will lead to criticism of success  but all the same they are examples.  I would even go as far to say that agencies have created their own multiple award IDIQ processes to manipulate selection by qualification rather than price.  From initial award where basis is on a sample project to the award of multiple IDIQ contracts that carry nothing that resembles pricing, leaving it to the imagination of users to invent price with fair opportunity.

Carl, I didn’t mean to offend you concerning the importance of service contractors.

The point I am trying to make is that architects and engineers have to go through a licensing process with yearly continuing education, because they design structures, utilities, bridges, roads,  systems, etc. which affect the health and life safety of the public. They must be experts in the various building codes, life safety codes, numerous Industry technical guidelines and requirements, structural codes, plumbing and electrical codes, yah deh, yah deh.

Architects and engineers experience some considerable risk if their design result in failure and/or injury or loss of life. There can be both civil and criminal liability for negligence or errors causing physical or injury/deaths. 

There is a broad opinion in United States that owners shouldn’t require Architects and engineers to compete for FFP work on the basis of price.  As far as I know every licensing jurisdiction and every professional organization prohibit them from competing for work based on price.

There is also a statutory,  6% of the construction cost, ceiling on the fee for the actual design services, which usually constitute a major share of the overall A/E services. 

The same licensing requirements and level of long term life safety risk plus long term (statutes of repose) responsibility for fixing errors and omissions and corrective costs aren’t evident to me in much of the service contracting industry.

formerfed said:

I would like to see special COs warrants granted to select individuals to do what makes good business sense.

All CO appointments should be "special". No  more handing them out as rewards or inducements to stay, or because the office needs signatures.

On 5/14/2021 at 1:13 PM, Vern Edwards said:

All CO appointments should be "special". No  more handing them out as rewards or inducements to stay, or because the office needs signatures.

Many offices need several COs to do high volume, routine tasks like signing orders and simple contract modifications.  That takes much of the signing workload off the senior experienced COs and these type warrants should have very limited monetary authority.  But I agree warrants for high dollar value or unlimited should be “special.”  

In fact if we ever got significant changes like we are talking about, it’s going to take a rare breed of COs to make it work.  OTAs are a prime example.  The concept is important to make the acquisition responsive to today’s defense needs.  But it also is often misused and abused by COs or others with signatory authority who have no business being in that position.  Already DoD is talking about establishing policies and procedures to make it “standardized.”  Thats to add bureaucracy and oversight.  Soon it will be so diluted by so many detailed procedures to follow, all the benefits are gone.

If CICA went away, the COs responsible for implementing whatever the new process is must be different than the rank and file COs of today.  I’m not optimistic if could work.  The majority of people of today are comfortable with the status quo.  They don’t want to do things differently from what they know and are comfortable with.  They avoid doing anything that might mean criticism.  Faced with a new situation they are familiar with, they look for rules.  If there aren't any, they seek someone to tell them what to do.

formerfed said:

If CICA went away, the COs responsible for implementing whatever the new process is must be different than the rank and file COs of today.  I’m not optimistic if could work.  The majority of people of today are comfortable with the status quo.  They don’t want to do things differently from what they know and are comfortable with.  They avoid doing anything that might mean criticism.  Faced with a new situation they are familiar with, they look for rules.  If there aren't any, they seek someone to tell them what to do.

A sad state of affairs that's taken a long time to develop and would take even longer to change for the better, if possible. But it's an opportunity for those who are ready to take advantage.

Some agencies already have a system that takes the full and open paradigm out of the decision making process.  They require all prospective offerors to prequalify for specific systems that will be purchased and only solicit those contractors for requirements in those systems.  

That rationale is good; the systems involve flight, missiles and other systems where people's lives would be endangered by using a non-standard product or assembly.  I don't know how that would work for procurements that do not involve critical systems like aircraft wings and engines, but perhaps it is time for us to go to such a procurement philosophy where possible.

The rules about prequalification are in FAR Subpart 9.2, and it isn't easy.

More than 20 years ago Professor Ralph Nash wrote an article entitled, "Prequalification: Can It Be Used To Improve The Procurement Process?" The Nash & Cibinic Report, April 1996. He wrote in part as follows:

Quote

One of the “dirty words” in Government procurement is prequalification. When it is used, many contracting professionals think of a technique that restricts a procurement to those firms that have been previously placed on a list of qualified offerors--and they believe that is illegal. The most knowledgeable will tell you of the many decisions of the Comptroller General so stating. In the course of revising our text, Formation of Government Contracts, I decided to do a thorough research job to find out where this folklore came from. I found a series of Comptroller General decisions in the early 1970s decrying prequalification and a sporadic number of subsequent decisions permitting prequalification. In the midst of this mixed bag of decisions, Congress entered the fray with two statutes in 1984, and Federal Acquisition Regulation implementation followed in due course. My ultimate conclusion is that prequalification is legally permissible in many contracting situations if an agency wants to use the resources necessary to meet the statutory requirements.

***

There seems to be little doubt that an agency can use a prequalification system to prequalify sources for a wide variety of procurements if it is willing to follow the statutory procedures. This entails publishing the requirements, regularly qualifying prospective sources, and notifying sources that do not meet the requirements of their deficiencies. It also may require referring a nonqualification of a small business to the SBA for a prospective Certificate of Competency. See Stevens Technical Services, Inc., Comp. Gen. Dec. B-250515.2, 93-1 CPD ¶ 385, where the Comptroller ruled that this was necessary when the qualification requirements were no more than normal responsibility factors (the statutes preclude this requirement if there are special requirements). These procedural requirements are probably sufficiently demanding to discourage most agencies from adopting source prequalification procedures. However, once such a system is in place, it might not be too difficult to sustain, and it would have the major benefit of limiting bids or proposals to those companies that were really qualified to perform the contract.

***

The most difficult aspect of source prequalification is the initial determination that such a system is necessary. The statutes require that this determination be made by the “head of the agency” but this authority has been delegated to lower levels by many of the agency FAR supplements (FAR 9.202(a)(1) calls for the determination to be made by the “head of the agency or designee”). However, the delegation is very uneven and, in many agencies, the approval authority is still at a relatively high level. This means that there will be a lot of “staffing” of such determinations--with the expected negative comments. This can be particularly troublesome in the situation, as here, where there is no guidance as to what constitutes “necessity.” The only help that we can give is that “administrative convenience” is not necessity. But running a more effective procurement system might well meet the “necessity” test, and prequalification could easily be seen as a move in that direction. In fact, we would argue that a well-run source prequalification system would greatly enhance competition by informing all offerors before the expenditure of bid and proposal costs that they were considered to be qualified--or unqualified as the case may be. We believe that Congress was saying just that when it enacted the statutes.

Finally, there seem to be a few common sense principles to be applied here. For example, it seems clear that source prequalification would be most appropriate where the agency had had the experience of receiving bids or proposals from a significant number of unqualified sources--with the resulting waste of resources by both the industry and the Government agency. If that has not been the case, it doesn't appear that the cost of running a prequalification system would be worthwhile. We also have some doubt as to whether source prequalification is worthwhile if there is a likelihood that there will be numerous prequalified offerors. Again, the cost of the system would probably outweigh the benefits to be gained. Thus, prequalification of sources should be reserved for those situations where there are real payoffs. In such cases, there seems to be no legal impediment to its use.

Prequalification  has never caught on in a widespread way, probably because it is administratively challenging.

Prequalification decisions are not protestable unless they are done in connection with a solicitation of bids or proposals. See CGI Federal, Inc., B-418807, Aug. 18, 2020.

Vern Edwards said:

Prequalification  has never caught on in a widespread way, probably because it is administratively challenging.

I know of one office that tried it and gave up in a short time.  Besides of all the work setting it up, companies that didn’t make the cut kept coming back saying they fixed items they were dinged on.  Then a few new ones showed up and complained to Congressional reps they weren’t allowed in and were better qualified than some that were.   

And no, it wasn’t me that tried it 😄

DWGerard1102 said:

Some agencies already have a system that takes the full and open paradigm out of the decision making process.  They require all prospective offerors to prequalify for specific systems that will be purchased and only solicit those contractors for requirements in those systems.

When I worked for industry that’s how we did most of our procurements.

On 5/13/2021 at 9:26 AM, C Culham said:

My concern is how much would stuff like this increase?  https://www.justice.gov/usao-edwa/pr/clarkston-business-owner-and-federal-government-contracting-officer-indicted-bribery

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

bob7947 said:

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

thank you Bob!   I agree!

On 5/18/2021 at 5:49 PM, bob7947 said:

Check the right-hand column of tomorrow's Home Page.  It will be posted around 8 PM Eastern.  I rarely add fraud against health care programs, the plague programs, etc.  

However, I think something can be done to reduce all the baloney in law and regulations.

Lauder (Govt bribed, Walter Reed official) faces “two year” prison sentence for his part??? 
And Thomas, the guy who bribed Lauder, also faces a maximum of “two years”...

https://www.justice.gov/usao-md/pr/owner-company-providing-prosthetics-and-orthotics-materials-walter-reed-national-military

Hmmm. BPA fraud. Hmmm. Aren’t BPA’s relatively simple and convenient to use? Apparently they were here.

joel hoffman said:

Lauder (Govt bribed, Walter Reed official) faces “two year” prison sentence for his part??? 
https://www.justice.gov/usao-md/pr/owner-company-providing-prosthetics-and-orthotics-materials-walter-reed-national-military

Hmmm. BPA fraud. Hmmm. Aren’t BPA’s relatively simple and convenient to use? Apparently they were here.

I’m somewhat familiar with the prosthetics situation at VA and can see how this could happen without catching too much attention.  VA wanted to establish large national or regional IDIQ contracts for prosthetics several times.  They felt volume purchasing would create economic savings as well as allow for quick delivery.  However doctors that treat veterans strongly feel they want to only deal with suppliers they could work closely with (local) and they could easily customize for their patients.  Over time the medical staff had preferred vendors based upon experiences with their patients.  So the idea of IDIQ contracts never had a chance and local BPAs allowing doctors to pick suppliers based upon the unique circumstances of each patient continued.

A run of the mill case of corruption.

I don't understand why Bob chose to post the news in this thread. What does it have to do with the opening post and the topic of eliminating the CICA requirement for "full and open competition"?

CICA did not prevent this low grade corruption. It didn't prevent the Fat Leonard scandal, which was huge. Nothing will prevent corruption, not even the threat of death by extended torture. Some humans simply will be corrupt. What's new?

A case of collective short attention span.

Vern Edwards said:

I don't understand why Bob chose to post the news in this thread. What does it have to do with the opening post and the topic of eliminating the CICA requirement for "full and open competition"?

My fault....see my post of May 13 to this thread.  Which by your now most current comments I can see was probably a mis-placed comment.

Most interesting to me is nobody picked up on the DOL case listed just above it.   Why?  Probably it is just another case of low grade, intentional or not, misapplication of SCA by a contractor.  A contractor by the way that has done approximately $20 million in work also for the VA.

For those who want to pursue the topic of the pros and cons of competitive bidding, instead of cluck-clucking because some jackass nimrod took $20,000 in bribes over the course of a number of years and will now go to jail, where he belongs, here's some reading:

https://www.sa-tenders.co.za/content/hints-tips-and-news/7-disadvantages-competitive-bidding

https://www.processexcellencenetwork.com/innovation/columns/seven-reasons-competitive-tendering-fails-and-what

And here's a quote for you:

Quote

The use of competitive bidding for engagement of engineering services continues to increase. A review of the current status of the practice with particular reference to public agencies is presented and analyzed. Both advantages and disadvantages of various methods used are discussed. The use of competitive bidding is detrimental to the quality of engineering services, and invariably results in an adversarial client relationship. Guidelines are provided for those instances where competitive bidding is the only method proposed for selection of the engineer. The engineer is cautioned that his relationship to the client will be adversarial and appropriate contact provisions are required.

That was written by a government engineer employed by the Department of Energy. (You'll have to pay for the full article.)

https://ascelibrary.org/doi/pdf/10.1061/(ASCE)1052-3928(1987)113%3A1(66)

So one thing that jumps out at me from reading those is why not allow the government PM and CO to authorize continual performance from quality suppliers?  As a minimum for extended performance, an incumbent continues to offer fair prices and high level performance.  Some other things might be useful such as providing continual improvement.   The concept is similar to award term contracts but not tied into a set duration or criteria.

formerfed said:

So one thing that jumps out at me from reading those is why not allow the government PM and CO to authorize continual performance from quality suppliers?

Because our Congress thinks that the only way to get fair and reasonable prices is through head-to-head price competition. There is a long and voluminous record of congressional hearings in which Congress has expressed its distrust of one-on-one price negotiations.

Vern Edwards said:

For those who want to pursue the topic of the pros and cons of competitive bidding, instead of cluck-clucking because some jackass nimrod took $20,000 in bribes over the course of a number of years and will now go to jail, where he belongs, here's some reading:

https://www.sa-tenders.co.za/content/hints-tips-and-news/7-disadvantages-competitive-bidding

https://www.processexcellencenetwork.com/innovation/columns/seven-reasons-competitive-tendering-fails-and-what

Exactly why we moved away from low bid, IFB to best value trade off. Yep, more work than IFB.

But we got rid of virtually all the dirt bag, low bid contractors that we had been forced to deal with. I remember dreading having to conduct the post award conferences with those firms, knowing that that would be just the start of a miserable experience throughout contract performance performance. 

And the handful of acceptable but confrontational, difficult to deal with construction contractors we had frequent business with at each installation soon mellowed.

And once Partnering was accepted by both our workforce and the contracting community, it became more fun and rewarding dealing with those firms.

Past performance distinctions became important. We often included an installation rep and someone from our field office on source selection teams, who had personal knowledge of the competing firms (as Capt Renault said: “the usual suspects”) performance.

The quality of preparation of past performance ratings vastly improved once our field offices discovered that it could be a meaningful discriminator. Before, it made no difference. We had ended up getting the same, poorly performing, difficult contractors.

We also used the opportunity to evaluate proposed key personnel and the key subcontractors who would perform much of the project work.

We also added a key personnel and key subcontractor clause to dissuade “bait and switch” of the B or C key sub and key personnel teams for the proposed A teams.

Sure it was a lot more effort that IFB. Since it was in our client installations’ and our field offices’ best interests, they were appreciative of the opportunity to have some influence in selecting their contractors. And we, as their District Office Headquarters team, looked out for their interests.

And - the District Office Project Managers finally had to be accountable for more than simply getting rating credit for the number of awards they could get out the door. We put them on the SSB, too. That and the fact that they were made responsible for the life cycle quality/success and customer satisfaction of the project, including after award.

And- being on the technical evaluation teams and having an SSB member, the Engineering Division design teams had the opportunity to become more involved after they “put down their pencils” or CADD programs. They became more accountable for their design products, seeing the feedback from industry in the competitively negotiated process.

Instead of the old “stovepipe”, territorial functional duties and responsibilities, teamwork and internal government partnering was fostered and promoted.

I want to add that we took advantage of the opportunity to conduct meaningful discussions in order to be able to obtain better pricing (and/or pricing within budget and/or awardable funding limits) and technical proposals, as well as improve the quality of the government’s design and overall solicitation requirements.

Vern Edwards said:

Because our Congress thinks that the only way to get fair and reasonable prices is through head-to-head price competition. There is a long and voluminous record of congressional hearings in which Congress has expressed its distrust of one-on-one price negotiations.

I don’t believe Congress would ever grant governmentwide approval of a brand new process such as permitting noncompetitive extensions to contracts based on exceptional contractor performance.  But I do believe Congress would grant limited approval to one or more agencies to try it out if fully justified.

Congress has done it with several agencies like USPTO, FAA, FSA, and others.  The issue is why those experiences weren’t more widely adopted is those agencies never fully utilized the flexibilities given to them to demonstrate benefits.  FAA devised a system that is worse than before in many respects.  FSA and USPTO don’t use what is given to them because their people aren’t comfortable doing anything other than the status quo.

Edit:  when USPTO first started with all their flexibilities, the ability to acquire professional services using an approach similar to A&E - select highest technically rated offeror to negotiate with, was part of their regulations.  But it was dropped because all the COs were afraid of sole source negotiations without competitive price proposals and possible post award criticism. 

@Joel Hoffman, you keep bringing up the current process works fine but you are relating it to construction.  I’m not a construction expert but have done enough to know sealed bids and best value trade off with discussions works with construction.  That’s the way the industry is set up and taking a long time is the norm and what’s expected.  Our nation isn’t injured because it takes years for a new building.  But for the majority of acquisitions the government does, something radically different is needed.  Everything we do in our lives is quicker and more responsive than in the past.  Our country can’t afford to allow our procurement system to drop us behind other nations.

formerfed said:

I don’t believe Congress would ever grant governmentwide approval of a brand new process such as permitting noncompetitive extensions to contracts based on exceptional contractor performance.  But I do believe Congress would grant limited approval to one or more agencies to try it out if fully justified.

Congress has done it with several agencies like USPTO, FAA, FSA, and others.  The issue is why those experiences weren’t more widely adopted is those agencies never fully utilized the flexibilities given to them to demonstrate benefits.  FAA devised a system that is worse than before in many respects.  FSA and USPTO don’t use what is given to them because their people aren’t comfortable doing anything other than the status quo.

Edit:  when USPTO first started with all their flexibilities, the ability to acquire professional services using an approach similar to A&E - select highest technically rated offeror to negotiate with, was part of their regulations.  But it was dropped because all the COs were afraid of sole source negotiations without competitive price proposals and possible post award criticism. 

@Joel Hoffman, you keep bringing up the current process works fine but you are relating it to construction.  I’m not a construction expert but have done enough to know sealed bids and best value trade off with discussions works with construction.  That’s the way the industry is set up and taking a long time is the norm and what’s expected.  Our nation isn’t injured because it takes years for a new building.  But for the majority of acquisitions the government does, something radically different is needed.  Everything we do in our lives is quicker and more responsive than in the past.  Our country can’t afford to allow our procurement system to drop us behind other nations.

Fair enough. But I explained the problems we encountered with IFB, which echo Vern’s two citations. That’s what I was responding to.

At any rate, I personally don’t see the political climate for the alternatives to competitive acquisition  presented so far being authorized on a broad scale in the near future for fed. Gov. Acquisition. Just my opinion.

Here’s a timely article for this discussion and a pertinent extract

Quote

The primary point of the defense acquisition process and its reform is not to have fair and open competition first and foremost. Rather, it is about getting the strongest national security possible. It is about how to best protect the nation responsibly and effectively.

https://www.defensenews.com/opinion/commentary/2021/05/06/we-are-lost-in-the-woods-on-acquisition-reform/

Read this:

Quote

Contractor selection: Industrial firms with little or no prior experience are often given contracts a few months before experienced companies find themselves running out of similar work, with a trained staff beginning to leave because of the situation created by these contracting practices. An enormous amount of unnecessary time and effort is utterly wasted in the bidding process which has grown to involve routinely, the invitation of large groups to bidders briefings and the invitation,,, of formal bids in ridiculous numbers. The criteria for selection have tended to encourage 'brochuremanship' since radical promises have usually seemed to pay off better than solid performance on current work. Thus is much of our finest talent needlessly and harmfully diverted from sharp focus on tasks at hand.

What government official wrote that? SecDef Robert S. McNamara. Quoted in Aviation Week & Space Technology, Feb. 5, 1962, p. 26, in an article entitled, "Defense to Speed Development, Cut Cost."

When would you guess that was written? Late 1961.

Quote

When would you guess that was written? Late 1961.

60 years later and similar complaints.  Wow

As long as DoD makes every acquisition strategy and methodology look the same, the results will be similar - a long standing defense contractor will win.

As a corollary to my last post, does DoD know how to obtain or even care about competition with non-traditional companies?    

Even the intent of OTAs aren’t even being met.  This is from a POGO article

Quote

The Congressional Research Service outlined a few reasons OTAs did not lure in nontraditional vendors, including ambiguity about the definition of nontraditional contractors and the use of OTAs for weapons systems, which are generally awarded to large defense contractors.33 No matter the reason, OTAs were going to large contractors. Recent data shows that traditional contractors are still major players in the OTA game. Three of the top five DoD contractors—Lockheed Martin, Northrop Grumman, and Boeing—are also in the top 5 of those “nabbing” the most OTA dollars.34

I think DOD has no choice but to rely on nontraditional firms, because they need IT, and the best sources of that are nontraditional firms. But I know that many nontraditional firms are put off by the regulations, the source selection processes, and the intrusiveness and untrustworthiness of the government as a customer. The don't like things like DOD's contractor business system rules. They are successful, and they don't need or want a bunch of bureaucrats coming in and telling how to pay their employees, manage their property, purchase goods and services, keep their books, etc.

We need a president who realizes that they need contracts and contractors to implement their programs, that the contracting system is busily dysfunctional, and that they need to do something about it. They can't just leave it to Congress.

Actually, we need two presidents---one who talks to foreign leaders and tries to solve problems that can't be solved in a four-year term, while pontificating to journalists and the public, and one who does the nitty-gritty work of making sure that the government operates effectively. One who handles problems like Iraq, Israel and Gaza, Taiwan, the South China Sea, and our relationship with Turkey, and one who makes sure we can get things like PPE and ventilators, military equipment, and disaster relief when and where we need them. One who postures and pontificates and one who manages and gets stuff done.

The job is too much for one person. I'm serious.