Issue sole source J&As before presolicitation notice? GAO says to think about it!

The results of this GAO protest includes an interesting thought. Should a sole-source J&A be approved before the results of a pre-solicitation notice are known? According to the decision,

We think agencies undercut their credibility when they prepare and execute
sole‑source J&As on the basis that there is only one responsible source
available, before the time they have received expressions of interest and
capability from potential offerors.

The writers of the decision admit that it is probably not a violation of procurement law but, doing the J&A first

...may increase the risk that an agency’s market survey, and other bases for its
sole-source decision, will ultimately be shown to be unreasonable.

It makes sense. It would seem less than fair to say there was only one source before using all the tools of market research, including the presolicitation notice.

More trouble for non-DoD contracts

The DoD IG has recently issued two reports regarding use of non-DoD contracts. Both showed that there is a great potential for Anti-Deficiency Act (ADA) violations. The first report focuses on DoD use of Treasury FedSource contracts. According a GovExec.com article, the IG found 21 potential ADA violations, including

funds being kept after the end of the year for which they were appropriated, and spending from the wrong accounts for particular projects.

The next report is an excellent review of ADA guidance and a good reference on potentially deficient practices. Focused on non-DoD contracts, it is a good resource to review (skip down to the section on potential violations- about page 13- for better explanations on ADA and how to avoid a violation).

This report is examining 38 potential violations by GSA and then an additional 69 by other agencies, including NASA and Treasury (all of these were for FY 2005). The report does not reference the other report's 21 for the Treasury. Its count was 25.

How did they fail? According to the report, the majority of failures of ADA were for violations of the bona fide need rule- severable services are covered here- (24 of the 38 and 60 of the 69 were for bona fide need).

Check this out for its potential as a good resource on ADA.

More from the Acquisition Advisory Panel draft report

Two more articles provide more information about the SARA panel's decisions. First, the panel believes that by using commercial business practices, competition will increase. Here how the article puts it

...move away from time-and-materials contracts because they take too much effort to oversee. Instead, the panel favors performance-based acquisitions. But other significant recommendations include setting up a new General Services Administration schedule for professional services, redefining stand-alone commercial services, applying the three-bid minimum requirement for Defense Department services over the simplified acquisition threshold governmentwide, and amending the Federal Acquisition Regulation (FAR) to improve transparency in government contracting.

The second article says the panel believes that the acquisition workforce doesn't know who it is and that they are not being sufficiently trained. In addition, they will conduct a study to see, among other things, whether there should be a government-wide version of DAU.

Of course, since DAU has an organic "systems acquisition" leaning (notice who their Defense AT&L Magazine is aimed at), they are missing helping those of us who spend the other 60% of federal procurement dollars!

From their writer's guidelines at the end of the magazine:

The purpose of Defense AT&L magazine is to instruct members of the DoD acquisition, technology & logistics (AT&L) workforce and defense industry on policies, trends, legislation, senior leadership changes, events, and current thinking affecting program management and defense systems acquisition [my italics], and to disseminate other information pertinent to the professional development and education of the DoD Acquisition Workforce.

Perhaps a services acquisition university might be a good thing. Let's see what they propose.

Procurement integrity put to the test- 144 years ago

President Ulysses S. Grant received a letter written to warn him about a scrupulous group of businessmen about to pay him an office call. The letter details the bid fixing plan and how the other members of the group would buy-out any other bidders.

He details contracts awarded to the highest (or a long way from lowest) bidder and other shenanigans.

Even (way) back in the "good old days..."

Effective contract administration methods

Much has been said about ensuring contractors properly perform on their contracts during the Iraq War. Check out how they improved contractor performance during the Civil War.

Looking at the big picture of PBSA

The Procurement Round Table is a group of procurement folks who meet to try to make sense of federal contracting and how to make it better. Earlier this year, this group issued a white paper to the acquisition advisory panel, working on improving services acquisition.

The paper introduced the concept of "relational contracting" for discussion purposes. The other purpose of the paper is to help explain why services contracting is supposed to be performance-based but often is performance based in name only.

Looking at the members of the Round Table and the members of the AAP, there is a lot of overlap. Maybe they are just trying to encourage discussion amongst the rest of us.

So...what do you think?

Thanks to Mary Paige for pointing this white paper out to me.

Size does matter- Part II

As an addition to the earlier post regarding small business certification, here is a decision by the Court of Federal Claims where the Air Force required a new certification by the business when they were going to issue a task order to an IDIQ contract.

One of the contactors had been a small business when they won their part of the basic contract. However, now they are a large company. By asking for a certification of business size, the Air Force caused the company to be ineligible for award. The contractor didn't like that and took them to court- and lost.

This is a way to keep small business preferences from being misused. The SBA's rules (see earlier post) are a partial fix.

Contracting officers can ensure small businesses get their preferences by requiring certification each time. It takes little effort on the contractor's part to recertify and keeps the integrity of the preference program intact.

Keep a watchful eye- careful contract administration is still important

Every once in a while, it is good to remember that we are responsible for and entrusted to protect our nation's resources. The best way we can is to create business relationships based on sound, ethical practices.

This website is about those business relationships that contractors and sometimes government employees (there is even a contracting officer listed here) made that were not sound nor ethical.

Come back to this site occasionally to keep in mind the ways that others can commit procurement fraud and erode the trust that the rest of us have been trying to build through our actions day-to-day.

New Acquisition Advisory Panel Report is drafted.

The Acquisition Advisory Panel, formed as a result of the Services Acquisition Reform Act of 2003 (SARA) has put together its draft report. Youmay have seen discussions of it in various places. One such place is Steven Kelman's column in FCW.com. He is starting a series of discussions about the report. This report drew the opposition of panel member Marshall J. Doke.

FYI, other board members are:

• Louis M. Addeo, President, AT&T Government Solutions;
• Frank J. Anderson, Jr., President, Defense Acquisition University;
• Allan V. Burman, President, Jefferson Solutions and former Administrator for Federal Procurement Policy;
• Carl DeMaio, President and Founder of the Performance Institute;
• David Drabkin, Deputy Associate Administrator for Acquisition Policy, General Services Administration;
• Jonathan Etherton, Vice President, Legislative Affairs, Aerospace Industries Association of America, Inc., and former staff member of the Senate Armed Services Committee;
• James A. Hughes, Jr., Deputy General Counsel for Acquisition, Department of the Air Force;
• Deidre A. Lee, Director of Management and Chief Acquisition Officer for the Federal Emergency Management Agency;
• Tom Luedtke, Assistant Administrator for Procurement, National Aeronautics and Space Administration;
• Marcia G. Madsen, Partner, Mayer, Brown, Rowe and Maw, and past Chair of the ABA Section of Public Contract Law;
• Melanie R. Sabelhaus, Deputy Administrator, Small Business Administration;
• Joshua I. Schwartz, Professor of Law and Co-Director of the Government Procurement Law Program, George Washington University Law School;
• Roger D. Waldron, Director, Acquisition Management Center, General Services Administration.
• Laura Auletta, Chairperson of the Civilian Agency Acquisition Council, will serve as the Panel’s Designated Federal Officer (Executive Director).

You are welcome to read the draft and the two columns that pick at the decisions. I think that services acquisition is so important that it rates it's own Aquisition University (DAU is for systems acquisition). Since DoD spends as much on services as systems, it is that important!

The US spends 3 times as much per person on defense as does Europe

This interesting article shows graphically how much the US spends on defense and how much of the world's freedom is shouldered by our country.

To me, the most telling is the statistic that shows that only 4% of Europe's soldiers are deployed throughout the year and that 16% of America's fighting men and women are deployed (some of our troops are deployed to Europe and are included in this total, I presume).

This is who is defending freedom world-wide.

I'd like to say that the rest of the world (England and Australia excepted) should pick up their share of the load, but that never has happened and may never happen.

Government Internet initiatives face real challenges

After reading (and writing) about the soon-to-be-adopted (by 2014) web-based contracting systems, I remembered this recent article. It cites the use of federal Internet sites by citizens throughout the country. [A similar article is here]

Maybe the explanation is in the traditional government practice of rice-bowling. Here is what the article says,

Karen Evans, administrator of OMB's Office of Electronic Government and Information Technology, said it is one thing for agencies to offer a service, but it is another for them to actually shut down their similar service and use the governmentwide solution. [my italics, of course]

That is why there is an Army Single Face to Industry website and FedBizOpps, a USAJobs site and the Army CPOL website (the Air Force has one and the Navy, too).

Of course, what about all the legacy systems that are procurement-related that can barely even talk to themselves.

The Coast Guard's contract writing system (see the article or read the report, see page 8) that doesn't talk to the federal government's new repository of procurement-related data (FDPS-NG) nor to other DHS contracting systems. The report says

Currently, however, DHS has several different contract writing systems that do not automatically interface with its Federal Procurement Data Systems - Next Generation (FPDS-NG) – a government-wide procurement reporting system accessible by the public. Some of the systems may need to be replaced. Additionally, not all DHS procurements are entered into FPDS-NG. For example, grants, mission assignments, and purchase card data may not be entered into FPDS-NG, resulting in an understatement of DHS’s procurement activities.

Wow! Why can't we just get along?

Interesting perspective on federal contracting in the future

Commercial practices in federal procurement as a "hot" issue may be back in style. A new report by Government Futures (get your copy of the report in .pdf format or view the webcast) talks about using commercial business practices. We are used to hearing about such practices as buying commercial, off the shelf items, for example.

However, this time, commercial business practices include such things as using web-based buying, tracking and spend analysis systems, strategic sourcing and something they call aggregate buying (buying in bulk throughout the "enterprise" (the whole Army, for instance, not the space ship)).

[Is it legal to have parenthesis inside parenthesis? Just wondering...]

The "quote of the article" is by the president of Government Futures who is quoted as saying

Pockets of excellence sit side by side with shops where innovation is not rewarded

Very interesting take on this topic. The most interesting thing to me, though, is the graphic that estimates how long it will take for federal government adoption of such practices. This report expects widespread adoption by 2014 of web-based procurement systems.

We may get SPS Increment 3 by then.

NASA's GWAC contract gets recertified

OFPP Chief says that Government Wide Acquisition Contracts (GWACs) are not a problem and that they solve strategic requirements for a narrow range of products and services.

Earlier this week, we discussed GWACs and interagency contracts. Now, NASA gets a shot to keep theirs.

Do you think GWACs and other interagency contracts are needed/desired? Do you think they serve a purpose?

How about intra-agency contracts (such as Army contracts used by the Navy, etc.). Do they have the same issues as interagency and GWACs?

Acquisition is a challenge at DHS, too!

Even at DHS- that includes the US Coast Guard- there is trouble in Contract Land. They need a new contract writing system. We have heard about Increment 3 of SPS and maybe that would be a great way to introduce our Coastie friends to our misery!

From before the blog: Size does matter

[Occasionally, I will resurrect something that I have found from the past and bring it to your attention.]

Cost for certifying as a small business as part of a GSA schedule proposal: $0
Cost for competitor to protest size certification: $.39
Cost for misrepresenting a large company as a small one: NOT Priceless- One million dollars!

Seriously, folks (I can't believe I said that)... There is a current controversy with large companies buying small companies and reaping small business contracting preferences. In fact, this fall, the Small Business Administration came up with new regulations to combat this issue.

Is that enough? Is that too much?

Another report saying "contract administration first!"

Once again, GAO manages to state the obvious, that contract administration is lacking in contracts for forward deployed contractors. One of the issues that GAO thinks is important is how many contractors and their employees there are.

There seems to be two issues here. First is a micro issue of how many employees need to be housed/fed/cared for at forward deployed installations. If this is an issue, perhaps something more than an annual report should be required.

Secondly, since we are buying performance and outcomes (FAR Part 37.1 says performance based contracting is still the method of choice), it is not relevant to the buying decision, so we don't require the contractor to report it anywhere, except for the Army's annual contractor manpower report.

There seems to be some sort of agenda in the Beltway about how many contractors are doing government work.

[Note: of course, some proposals have work breakdowns that include labor projections, however, contractors are not bound by them in most cases.]

The purpose of the A-76 and performance based contracting, as I understand it, was not to decrease or increase the workforce, but to save the government money. That should be the measure, not the number of employees.

Send me your comments. Post them right down here at the bottom of the post.

Not George Group wins Lean contract

The Army has relied on one sole contractor for Lean Six Sigma support. However, the Air Force is moving forward quickly using contractors located near their installations to move Lean throughout their manufacturing and depot processes.

Maybe the Army should re-focus on getting Lean Six Sigma to the field and not to getting more work for their contractor-of-choice.

Army seeks digital coaches

Just thought this was a cool requirement- digital coaches. If they can pull this off, it might be something that can transfer thoughout the Army, including contracting.

Hundreds of interagency contracts available for use

According to the results of a recent survey, there are over 250 interagency contracts. In case you didn't know, using interagency contracts is "not well understood."

While the chief of OFPP thinks 12 Government Wide Acquisition Contracts (GWACs) is not too many, but his deputy doesn't think so.

If someone comes up with a good contracting solution, why should we re-invent the wheel? Just need to get the details sorted out so we have better contract administration.

DOD & GSA agree on acquisition processess

There are 22 separate areas of agreement in a new DoD/GSA memorandum of agreement. Besides increasing financial oversight (to reduce "parking" of funds or holding onto expired funds), the agreement says that GSA will ensure that pricing on GSA schedules will be reasonable and best value on all contracting actions.

This seems to be what their SOP should have been from the beginning. I guess this is just a way to have the assurances of GSA that they will do thing the right way.

The GovExec.com reporting of this agreement adds that GSA

has agreed to honor the Defense Department's interpretation of appropriations law when placing orders for Defense buyers.

That should really help in keeping the money separated and obligated in a timely and legal manner.