Acquisition Reform -- Not Acquisition Shortcuts

One of the fallouts from acquisition reform was a cutting of the size of the acquisition workforce. Is payback time near? Two articles in this week's online version of Federal Times seem to say "yes." In one, Steve Kellman, former OFPP Director, worries that the recent events will cause a backlash against acquisition reform.

In the second article GSA again takes the hits, not out West but right here in the National Capital Region -- "Contracting shortcuts, violations rampant at GSA". lt is not a question of people being dishonest, but rather too much to do and not enough people to do it; at least not the right way. Problems involved misuse of IT funds, cost growth by 500% in one case and many others. One response has been to now require legal review of all contracts over $100,000. While appreciating the opportunity for more legal work, that certainly is not going to speed up the process and why do we need the lawyers to review and make sure contracting folks take the right actions in processing a requirement -- contracting people know how to do it right, they just need the time and resources.

In a recent GAO opinion, Burns and Roe Services Corporation, B-291530, January 23, 2003, GAO stated that: "Where a solicitation advises offerors that experience is to be evaluated, an agency may properly consider an offerorÂ’s specific experience in the area that is the subject of the procurement. In this regard, experience as an incumbent may offer genuine benefits to an agency and may reasonably distinguish the incumbentÂ’s proposal. IBP, Inc., B-289296, Feb. 7, 2002, 2002 CPD ¶ 39 at 5." . Be a little careful. They are not saying you can just go ahead and award to the incumbent. But where the evaluation factors for past performance are properly structured, the benefits from incumbency are fair consideration. "In considering the impact of incumbency, the SSB noted that JonesÂ’s status as “the incumbent contractor currently performing most of the services for the same customers in the same remote location,” and the firmÂ’s intent to “roll their existing management team over from the current contract to the new one . . . provides the government a high degree of confidence and low risk in the successful performance . . . on a follow on contract.” AR, Tab 17, SSB Report, Sept. 24, 2002, at 9-10. Although, as noted by the protester, both JonesÂ’s and B&RÂ’s proposals received ratings of “good” under the corporate experience criterion, the agency could consider JonesÂ’s incumbency as a discriminator in the source selection decision because this criterion was part of the evaluation scheme.[6] IBP, Inc., supra, at 7. "

Mr. Vernon J. Edwards, a frequent contributor to the "Where in Federal Contracting" website and other contracting publications, has written an interesting article, The Level of Confidence Assessment Rating Technique: A tool for source selection. 15 pages and worth the time.

That's it for now.

Time to get back to business!

I see it has been a while since I posted. Been busy but am now back in the field at the Norfolk site. Need to catch up and get back into the classroom. Three things have been in the news recently that are noteworthy.

First, if you don't think that the Standards of Conduct are taken seriously in DoD drop a line to Ms. Darleen Druyun, former Air Force Assistant Secretary and get her opinion. According to today's Wall Street Journal, Ms. Druyun pleaded guilty in federal Court to improperly discussing employment with Boeing while still involved with Boeing contracts. She plead guilty to one count of conspiracy and is now helping Federal prosecutors, She faces a potential prison sentence of up to five years and a $250,000 fine. The Air Force is not having a good spring. While "partnering" is most likely a good thing, having your potential contractor write the specs is not. Investigation continues into the tanker program and whether it was properly conducted.

The second item came out yesterday. GAO has determined that federal employees, agency tender officials and government employee unions are not "interested parties" for the purpose of filing a protest action against a competitive award made to a private contractor in an A-76 action. In Dan Duefrene; Kelley Dull; Brenda Neuerburg; Gabrielle Martin, B-293590.2; B-293590.3; B-293883; B-293887; B-293908, April 19, 2004, GAO found that notwithstanding significant changes in the new A-76 circular, they, GAO, still did not believe they had bid protest jurisdiction under the Competition in Contracting Act (CICA). Attached to the opinion is a letter to the Senate from the GAO inviting the legislature to make changes that would confer jurisdiction. We will see.

The third item is another GAO protest involving a procurement using GSA's FSS. In CourtSmart Digital Systems, Inc., B-292995.2; B-292995.3, February 13, 2004 sustained yet another protest where the agency started in one direction and then shifted directions to achieve what appeared to be a preordained result. When you use the FSS, you use the FSS -- you don't attempt to modify the FSS to fit your requirements. "Orders placed using the procedures established for the FSS program satisfy the statutory and regulatory requirement for full and open competition. FAR §§ 6.102(d)(3), 8.404(a). Non-FSS products and services may not be purchased using FSS procedures; instead, their purchase requires compliance with the applicable procurement laws and regulations, including those requiring the use of competitive procedures. Symplicity Corp., B‑291902, Apr. 29, 2003, 2003 CPD ¶ 89 at 4; see ATA Def. Indus., Inc. v. United States, 38 Fed. Cl. 489, 504 (1997). Therefore, where, as here, an agency solicits quotations from vendors for purchase from the FSS, the issuance of a purchase order to a vendor whose quotation includes a non-FSS item priced above the micro‑purchase threshold is improper. Symplicity Corp., supra, at 4-5; T-L-C Sys., B‑285687.2, Sept. 29, 2000, 2000 CPD ¶ 166 at 4." It goes downhill from there. This is a good case to teach from as it has all kinds of issues about proper technical evaluations, ambiguispecificationstionsons and the failure to document. Footnote 8 says: "While the contracting officer now states that he did not intend this result, VT at 12:06-11, the contemporaneous record does not support his testimony. We find it inappropriate to accord any significant weight to the contracting officerÂ’s post protest statement, particularly since it was made during the heat of an adversarial process. Gemmo Impianti SpA, B‑290427, Aug. 9, 2002, 2002 CPD ¶ 146 at 4-5; Boeing Sikorsky Aircraft Support, B-277263.2, B-277263.3, Sept. 29, 1997, 97‑2 CPD ¶ 91 at 15." OUCH!,

With so much to do and given the strain on resources there is sometimes a temptation to take shortcuts. Resist, there are tools out there that can help but they have to be used properly.

More courses are popping up on the DAU continuous learning center, stop and check them out. Also if you haven't signed up for the Acquisition Community Connection, I recommend you go do so. Lots of good information.

Enough for now.

Rex