Monday, January 14, 2013


On December 27, 2012, we wrote about antidotes for the "unabated crisis" raised by the Professional Services Counsel (PSC) and Grant Thornton LLP in their recent study report.  In that piece, we suggested more myth busting memos from the Office of Procurement Policy (OFPP), instituting a help hot line, fixing the debriefing and LPTA debacles, educating the lawyers and training by the case study method.  We believe we should establish a corps of experienced volunteers who are willing to spend time on the phone with less experienced professionals on the acquisition team (as defined in FAR 1.102(d)) advising them on areas within the experience and expertise of the volunteers.

We remember when a government investigator called us out of the blue and asked us questions about the Anti-deficiency Act.  The investigator had read that we had written a case history about a violation of the Act occurring some time ago.  We were more than happy to explain our understanding of that Act.

Our suggestion that the government rehire the retirees is impracticable and unworkable.  It can and will never happen.  We need not belabor the point. However, many of us are willing to reply to a request that we volunteer our time and supply answers to questions about our experience and expertise.  The government could set up a help hot line which monitors could use to match the questioner with the appropriate experienced volunteer.  This advice would be case specific answers to real time questions with the explicit disclaimer that the volunteer would not be speaking for the government but would instead be offering counsel and suggested solutions.

The big questions are whether any of the experienced people are interested in joining the corps, whether the government would accept the idea and whether anyone would actually use the help hot line.  Big questions.  And, Congress would have to approve this (because of the Anti-Deficiency Act) and provide a liability shield.  The purpose of this piece is to elicit your reaction to see if it is appropriate to seriously suggest and promote this approach with the appropriate government acquisition executives.

So let us hear from you.  We have thick skins so go ahead and tell us if you think this notion stinks.

Friday, January 11, 2013


Today, we heard Joe Jordan, Administrator of the Office of Procurement Policy (OFPP), at a meeting of the Government Affairs Committee of the Professional Services Council (PSC), allude to the statement of guiding principles for the federal acquisition system set forth in FAR 1.102(d).  Essentially, he said that if your proposed action is not proscribed by FAR you probably can take it provided it is in accordance with sound business judgment.  Let's remind ourselves what the regulation says:
The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer's needs.  In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.
Notice the word "initiative" is used twice as if to suggest the entire statement is designed to engender such behavior.  Also noteworthy is the reference to the Acquisition Team, which Mr. Jordan described in other remarks as including program management and all people supporting the contracting officer.

So if the strategy, practice, policy or procedure "is not addressed in the FAR", you can do it, provided it is not prohibited by a statute or case law, executive order or other regulation.  (In these articles we are constantly calling attention to the case law which teaches both what to do and what not to do.)  Joe Jordan's emphasis is on taking the initiative to try something new unless the law just flat out says you can't do it.

In our comments on what needs to be done to fix the procurement system, we have emphasized that senior leadership needs to pass down best practices and see to it they are followed in the field.  But we also have criticized people at the working level for lack of initiative.  We hope to hear more from Mr. Jordan about exercising initiative.  Giving us some exemplary case histories of success stories would help.

But he also made a solid point that the acquisition team needs to increase its tolerance for taking risks.  Initiative may lead to mistakes.  They are to be expected. Our philosophy is that if you are not making mistakes, you are not improving the process.

Tuesday, January 8, 2013


Judge Susan Braden of the Court of Federal Claims (COFC) reminds us in a recent opinion of the difference between protests in that court based on a regulatory or procedural violation and award decisions challenged on the grounds that an agency acted in an arbitrary or capricious manner.  The protest before her involved a design-build contract for medical facilities for the Army.  After a lengthy opinion, she granted a preliminary injunction against the Army.

In the process of reaching her decision, she noted that the Court of Appeals for the Federal Circuit (CAFC) has emphasized that "best value" solicitations afford the contracting officer a great deal of discretion so that relative merit is primarily a matter of administrative discretion not to be interfered with by the court.  However, that discretion does not allow the procuring agency the liberty to deviate from the requirements of the solicitation and ignore rules in the Federal Acquisition Regulation (FAR).  Moreover, the agency must not ascertain best value in a manner that is arbitrary.  Finally, discretion does not allow the court to overlook the fact that the administrative record does not contain sufficient information on which an agency could even make a rational decision.

When a bid protest is based on a regulation violation or deviation from the solicitation (illegality), the protester must show a clear and prejudicial violation of the regulation or solicitation provision.  The burden is even greater when the procurement is best value.  In deciding whether an agency has complied with the regulation on best value, the court may overturn the agency's decision if it is not grounded in reason.  The inquiry becomes whether the agency provided a coherent and reasonable explanation of its exercise of discretion.

Alternatively, if the award decision is challenged on the grounds that an agency has acted arbitrarily or capriciously, the court intervenes only in very limited circumstances.  An agency must entirely fail to consider an important aspect of the procurement.  Or, it must offer an explanation for its decision that runs counter to the evidence before the agency or render an implausible explanation for its decision.

In the case before her, Judge Braden sided with the protester because the administrative record evidenced violations of the Competition in Contracting Act (CICA) and FAR.  The agency decision contained no documents showing that the Army even considered the protester's "betterments" and omitted any discussion of their merits.  This, she found, was arbitrary. and prejudicial to the protester.  She also was completely put off by the paucity of the administrative record which failed to contain worksheets evidencing whether and how the Army evaluated the offerors.

In granting injunctive relief, Judge Braden was not persuaded by the Army's argument that an injunctive would imperil the Army's mission.  The harm to the Army was self-inflicted.

A word to the wise.  Follow FAR.  Follow the solicitation.  Document, document, document.  Government lawyers:  keep looking over the contracting officer's shoulder and put your foot down.  Promptly redo things before there is protracted litigation which threatens the mission. 

Wednesday, January 2, 2013


Judge Victor Wolski of the Court of Federal Claims (COFC) observes that past performance of all offerors need not be considered under FAR 15.304(c)(3) and that consideration of past performance in commercial buys is not mandated.  He specifically holds that a bidder can waive consideration of its past performance if the solicitation language alerts bidders that unacceptable technical proposals will not be further considered and a protesting contractor fails to raise objection prior to the close of the bidding process.

The case arose when the protester's proposal was rejected as ineligible based on the technical evaluation factor.  The protester argued that if the agency considered past performance, it would have seen that all of the deficiencies in the technical proposal were addressed.  But the solicitation clearly stated that an unacceptable technical proposal "will not be further evaluated."  Based on court precedent, Judge Wolski rejected the protester's argument because the protester failed to object to the terms of the solicitation prior to the close of the bidding process.

But Judge Wolski went on to address the question of whether every offeror is entitled to a past performance evaluation.  No, he says.  Under commercial item buys, past performance should be evaluated but should is not mandatory.  More broadly, FAR 15.304(c)(3) which makes evaluation of past performance mandatory (by using the word "shall"), does not refer to "all offerors" and "nothing in this provision precludes federal agencies from using an approach that weeds out offerors under other non-cost factors before past performance is considered."

To support his conclusion, Judge Wolski notes that price must be considered without exception when an award is made.  However, it need not be considered for proposals that are technically unacceptable.  "It is difficult to see how the less mandatory language of section 15.304(c)(3) could impose a greater obligation on agencies that is imposed for evaluation of price."

In conclusion, Judge Wolski opines:
The FAR does not appear to contain any impediment to an agency's restricting past performance evaluations to offerors who have met some other non-cost factor threshold, such as suitably explaining how the requirements of a contract would be met.
So this case if a reminder that objections to language in the solicitation must be raised prior to the closing of the bidding process.  The case also is a lesson in shall vs. should and a clear indication that an agency can reject a proposal without consideration of past performance data.

Tuesday, January 1, 2013


This will be short and sweet.  By far the most important section in the Federal Acquisition Regulation (FAR), for these trying times in particular, is FAR 15.201.  We need to keep reminding ourselves and everyone in the procurement community about it.  Following it is the cornerstone of any successful acquisition.

15.201 Exchanges with industry before receipt of proposals
(a)  Exchanges of information among all interested parties, from the earliest identification of a requirement through receipt of proposals, are encouraged.  Any exchange of information must be consistent with procurement integrity requirements (see 3.104).  Interested parties include potential offerors, end users, Government acquisition and supporting personnel, and others involved in the conduct or outcome of the acquisition.  
Agencies are encouraged by the regulation to promote early exchanges of information.  Among the techniques encouraged are:  industry conferences, one-on-one meetings and draft solicitations.

Language in the myth busting memos lends further support to this basic admonition.

Nearly all the problems we've seen with procurements could have been avoided or ameliorated by following the clear and simple encouragement in FAR 15.201 to communicate.  And, as we've pointed out, once the contract is inked, there is an obligation read into all contracts, as a matter of law, that the parties communicate with each other.