READ THE EVALUATION FACTORS!

What is the first thing you should do when you get a solicitation for a competitive government buy?  Find the evaluation factors, read them, make sure you understand them, make sure they are fair, make sure they comply with the regulations and use them to manage your proposal effort.  If they are not clear, fair or if they do not comport with the regulations, protest immediately.  We can assure you most problems in competitive procurements are caused by improperly articulated evaluation factors.  The time to solve these problems is when the solicitation is first issued.

We are against protesting unless a regulation is violated.  We also are against writing stuff people do not understand.  If the evaluation factors are not written clearly and if they do not strictly follow regulatory requirements, protesting is an absolute necessity.  This is probably the one situation where there is no doubt about the propriety of protesting all the way up the line.  First, “protest” to the contracting officer.  Write a letter (emails are legal letters) thoroughly explaining what is unclear or illegal about the evaluation factor section of the solicitation.  Yes, it is illegal to fail to follow the regulation on evaluation factors.  If that doesn’t work, file a formal agency protest or protest to GAO.

Evaluation factors are discussed In FAR Parts 12, 13, 14 and 15.  All competitive procurements implicate FAR Part 15 principles, according to GAO.  Part 15 has the most thorough discussion of evaluation factors.  Although Parts 12, 13 and 14 have their own discussions and Parts 12 and 13 allow much more discretion as to what factors are used, Part 15 is the gospel on evaluation factors.  The main point to remember is that all competitive procurements require a solicitation contain evaluation factors.  They must also be written in plain English. 

If nothing else, failure to state evaluation factors is egregiously unfair.  How in the world can you compete if you don’t know how you will be judged?  Why would you engage in any competition without knowing the rules of the game? 

 bill@spriggsconsultingservices.com

IMPROVING THE FEDERAL AQUISITION WORKFORCE

The problem with today’s federal procurement workforce is that experienced hands are leaving, leadership is underperforming in finding ways to transfer expertise to the new generation and the younger workers lack the requisite initiative to find best practice experience and to follow it.

One of the main problems is communication with industry.  OPFF has issued best practice experiences in the form of myth busting memos which emphasize the need for communication.  The feds need to buy more like it’s done in the commercial world.  They need to talk more with industry to find out how it’s done and how commercial products and services can fill government needs.  Talking more with industry also helps the feds by encouraging private innovation and by learning how to take advantage of it.  But the myth busting best practice guide languishes in many agencies.  The word just does not get to the field. 

Communication isn’t the only problem.  Among the most serious is the emphasis on lowest price, technically acceptable procurement actions.  When the government overused detailed design specifications, performance specifications were born.  Detailed requirements lend themselves to pass or fail technical evaluation and award to the lowest price.  But we’re now in the performance specification era where best value tradeoffs should rule.  Performance specifications and lowest price technically acceptable selection are a bad mix.  Poor leadership at the top and inexperience at the bottom have created this problem.

There is such a thing as the wisdom of the ages in federal procurement.  We’ve learned that fixed prices for ill-defined statements of work are a bad idea.  We’ve also flirted with the notion that buying like the commercial world can be a good idea.  We’ve also learned that full and open debriefings prevent more protests than they encourage and that cooperation and communication with the contractor not only are legal requirements, they also help assure successful contractor performance.  There is a vast storehouse of valuable best practice information available in the memory of the retiring workforce on any number of subjects relevant to today’s procurement activities.  

We see a simple solution which will take some hard work.  First, OFPP needs to do more memo writing like the myth busters memos.  It needs to follow up on its best practices for contract administration guide and update and expand on it.  Senior acquisition executives who receive the OPFF memos need to do a better job of leadership in making sure the word gets to the field.  They also need to be held accountable for making sure the best practice experience is in fact practiced in the field.  Finally, the new generation needs to find the winners, understand their winning ways, and adopt the practices experience has taught will work.  In other words, they need to exercise better initiative in finding the wisdom of the ages in procurement. 

We propose that the retiring generation assist OFPP in writing down best practices for contract formation and administration.  Senior acquisition executives need to commit to making sure the word gets to the field.  And the new generation needs to exercise initiative in finding the best practice experience and in following it.  Start with communication.  The myth busting memos are the model.  Those best practices have been vetted thoroughly by the most experienced professionals in the business.  They represent the wisdom of the procurement ages.  The new generation would be well served by starting with OFPP’s advice on dealing with industry.

bill@spriggsconsultingservices.com

ANOTHER CICA STAY OVERRIDE OVERRULED

Former Chief Judge, now Senior Judge, Loren Smith of the Court of Federal Claims (COFC) has just overruled another CICA stay override decision this time of the United States Department of Homeland Security, Transportation Security Administration.  See Technica LLC v. United States and Aviation Security Management, LLC, COFC No. 18-2003-C, February 22, 2019.

The CICA stay is an integral part of the procurement system which assures the GAO time to render its decision on a bid protest.  It's tantamount to an automatic preliminary injunction if the protest is timely filed.  The stay is a protection of the integrity of the procurement system and can only be overridden under specific and special circumstances.

Judge Smith recites the court's four part test for review of an agency's decision to override the stay:

1. Whether significant adverse consequences will necessarily occur if the stay is not overridden;
2. Whether reasonable alternatives to the override exist;
3. How the potential cost of proceeding with the override, including the costs associated with the potential that the GAO might sustain the protest, compares to the benefits associated with the approach being considered for addressing the agency's needs; and
4. The impact of the override on competition and the integrity of the procurement system, as reflected in CICA.

In addition, the COFC must consider whether the agency's decision substantively meets the arbitrary and capricious APA review standard.  The agency decision would be arbitrary and capricious if the agency relied on factors which Congress has not intended, entirely failed to consider an important aspect of the problem, offered an explanation running counter to the evidence or is so implausible that it could not be considered a difference in view or the product of agency expertise.

Judge Smith ruled in favor of Technica LLC, declared the override was arbitrary and capricious and he overturned the override decision granting Technica's request for a preliminary injunction.

bill@spriggsconsultingservices.com                       bill@spriggslawgroup.com