FAR | The Contracting Education Academy

August 30, 2012 By AMK

FAR clause on small business R&D set asides to be confusing no more

The writers of federal regulations controlling procurements say a clause telling contracting officers when to set aside research and development contracts worth more than the simplified acquisition threshold needs clarification.

In an Aug. 10 notice in the Federal Register, the Federal Acquisition Regulation Council says language in FAR 19.502-2(b) regarding setting aside R&D contracts for small businesses when worth more than the simplified acquisition threshold (currently $150,000) is the subject of a clarification request from the Small Business Administration.

Keep reading this article at: http://www.fiercegovernment.com/story/far-clause-small-business-rd-set-asides-be-confusing-no-more/2012-08-20?utm_source=rss&utm_medium=rss.

August 24, 2012 By AMK

DoD temporarily alters vendor registration rule due to SAM’s launch shortcomings

In order to avoid delays in “the timely processing of awards,” the U.S. Department of Defense (DoD) has ordered the temporary suspension of rules requiring vendor registration in the System for Award Management (SAM).

SAM replaced Central Contractor Registration (CCR), the government’s long-standing vendor database. SAM was launched during the last weekend in July 2012 when CCR vendor data was migrated to the new system.

SAM’s late July implementation included not only CCR but Federal Agency Registration (FedReg), the Online Representation and Certification Application (ORCA), and the Excluded Parties List System (EPLS) as well. “Performance issues” involving the new SAM database prompted DoD’s action to suspend for “a brief period” the requirement that vendors be registered in SAM before being eligible for a contract award.

Since SAM’s launch there have been widespread reports and complaints from vendors and contracting officers alike that they cannot access vendor records or are experiencing slow performance within the on-line system. The General Services Administration (GSA) is responsible for SAM. GSA contracted with IBM to manage the design and implementation of SAM.

In the August 21, 2012 order to temporarily suspend SAM registration requirements, DoD noted that the action would provide “a brief period of time for achieving resolution of the remaining [performance] issues.”

DoD notes that “GSA has been taking aggressive action to resolve these issues promptly.” Earlier news reports indicated that GSA issued IBM a “letter of concern” on Aug. 7. In the official notice, GSA told IBM to develop a plan of action and milestones for how they will make SAM work more smoothly. GSA hired IBM under an eight-year, $74.4 million contract in 2010.

DoD’s order was issued in the form of a “class deviation” which allows the department to suspend Federal Acquisition Regulation (FAR) and Defense FAR Supplement (DFARS) requirements pertaining to vendor registration and annual representations and certifications.

In its order DoD notes that contractors are still required to be registered in SAM prior to submitting invoices.

Before the DoD order, all contractors were required to be registered in SAM, and all contracting officers were required to check SAM before making a contract award.

Until SAM is functional, DoD’s contracting officials are directed to obtain paper or electronic copies of vendors’ representations and certifications in lieu of accessing this documentation via that portion of SAM that used to be the stand-alone ORCA system.

The EPLS migration to SAM has been reversed, thus restoring that website as a site operating on its own. Because of this action, contracting officers once again have the ability to conduct pre-award checks in EPLS to ensure prospective contractors are not on the list of entities excluded from federal contracts.

DoD’s class deviation remains in effect for an indefinite period of time until rescinded.

The SAM User Guide can be downloaded at: https://www.sam.gov/SAMPortal/img/Download-PDF.png.

For the latest news involving SAM, please visit: http://contractingacademy.gatech.edu/tag/sam

© 2012 The Contracting Education Academy at Georgia Tech. All Rights Reserved. Permission to reprint this article is hereby granted with the stipulations that the article is attributed to The Contracting Education Academy at Georgia Tech and that the following URL is given: http://contractingacademy.gatech.edu/2012/08/dod-temporarily-alters-vendor-registration-rule-due-to-sams-launch-shortcomings

August 24, 2012 – 5:33 am EST

March 19, 2012 By AMK

Should contractors keep the right to respond to past-performance reviews?

There’s some buzz around a provision in the newly introduced Comprehensive Contingency Contracting Reform Act that would eliminate the ability established in the Federal Acquisition Regulation for a contractor unhappy with their past-performance evaluation to enter their own version of events in the file and to appeal the original past-performance evaluation to one level higher in the organization from where the original evaluation was done.

Matthew Weigelt wrote about the provision recently on FCW.com, with a moderately incendiary headline saying the provision would “stifle” contractor responses to past-performance reports. Matthew’s article was a top-five read and emailed article on the FCW site, so the issue is attracting attention.

With a small tweak, this could actually be a really good change. But the tweak is necessary, and I hope the bill’s authors will make it.

The big problem with the current FAR language is that it allows a contractor to appeal a past-performance rating one level above where it was made. In my view, this appeal right has been devastating for the honesty of past-performance ratings, and therefore for the ability of past-performance to be a differentiator in contract awards. For past-performance to work in choosing contractors, the government needs to be able to observe differentiation between better performers, who should be rewarded with new contracts, and poorer ones, who shouldn’t.

The serious shortcomings in the government’s past-performance rating system in turn is really too bad, because judgments, formal and informal, of the past performance of those with whom we do business are an absolutely crucial part of the ability of a market system to work in improving results. If we like the haircut a barber gave us, we go back, and if we didn’t, we don’t – this really provides an incentive for barbers to do a good job.

I was the person, as OFPP administrator, who authorized the current FAR language when the past-performance evaluation system began in the ‘90s. I was concerned at the time that this appeal provision was a mistake, and I believe that subsequent results have confirmed my worries. Contracting officers believe that a bad rating is an invitation to spend countless hours having to defend their judgments, and the easy response, especially with staff shortages and not enough time, is simply to go light on bad comments.

So as the person responsible for the original language, I vote for its repeal.

However, the bill’s provisions go a bit too far. There is no reason to eliminate the ability of the contractor to give their version of events and have it put in the contract file. That just seems like elementary fairness, so others using the past-performance report get to see a different version of what happened, if there is one. I think that at least enlightened elements in the contractor community could support elimination of the dysfunctional appeal process, which undermines the ability of the past-performance system to work at all. But elimination of even the right to comment is sure to arouse the ire of all contractors, as Weigelt’s article seems to show.

Can the bill authors tweak their language so it can help create a real improvement in the government’s past-performance rating system?

– by Steve Kelman, Washington Technology, Mar, 5, 2012 at http://washingtontechnology.com/blogs/lectern/2012/03/contractors-past-performance.aspx?s=wtdaily_060312.

December 23, 2011 By AMK

OFPP’s Gordon reflects on mythbusters, acquisition workforce

The investment in the acquisition workforce and the launch of the mythbusters campaign were two of the major initiatives by Dan Gordon, the outgoing head of procurement in the federal government.

Gordon is stepping down as administrator of the Office of Federal Procurement Policy to become an associate dean for government contracts law at the George Washington University Law School.

When he took on the role of administrator in mid-2009, Gordon said the biggest challenge he faced was helping acquisition workers and he has made the workforce his “number one priority.”

“They had been beaten down, worn down, under-invested in, run down — every negative word you can come up with — since the mid-1990s,” Gordon said in an interview with Off the Shelf.

In the 1990s, agencies saw a “tsunami of spending” for contracting, yet there were “too few people, too little training” for contracting officials, he said.

“We were outsourcing instinctively, often without really thinking whether the work being done really should be done by federal employees rather than contractors,” Gordon said.

Gordon said the acquisition workforce — both in terms of numbers and training — have improved in his time as administrator. He said the Defense Acquisition University and the Veterans Affairs Acquisition Academy are examples of the emphasis the government is putting into training, but added, “We have a long ways to go.” For example, Gordon said every time a new Federal Acquisition Regulation is issued, training should accompany that new rule.

“Have we made progress? I think so,” Gordon said. “But I am very concerned that the budget pressures on the Hill will put much of that progress at risk. We need to protect the acquisition workforce. The good news is, this isn’t a partisan issue.”

Mythbusters requires ‘cultural change’

Gordon said his “lightbulb moment” for the mythbusters campaign came when OFPP was working with Vivek Kundra, the former federal chief information officer, on IT project management issues — particularly on figuring out why so many large IT project ran behind schedule, over the budget and under the desired performance.

“The root cause often lay in poor requirements and the reason we had poor requirement in our solicitations was we weren’t listening to industry enough,” Gordon said.

He cited some words of wisdom from his 91-year-old mother: “You learn more from listening than from talking.”

So Gordon took this advice and applied it to the acquisition community. In February of this year, the Office of Management and Budget released a memo encouraging agencies to increase communication with industry. The memo required agencies to submit a vendor communication plan.

Gordon said the response to the initiative was, for some, concern. One contracting officer told Gordon that she was nervous to meet with industry because she did not want to get in trouble with ethics officials.

“My answer to her was, If you need to, take five lawyers from your agency with you, but have the meetings. Lawyers are your friends,” Gordon said.

Acquisition workers have also expressed their concern that the memo would only increase their already over-burdened workload. They did not want a situation where they were “forced to be listening to marketing campaigns,” Gordon said.

Industry, in return, is getting guidance about the kind of information agencies would like. OMB is now launching a second mythbusters focused on contractors.

The change for both government industry will be cultural, Gordon said. “But I’m convinced that the push for the mythbusters campaign for more communication, early communication, honest communication, full communication, will pay off for the government, but also for industry.”

— by Jolie Lee – Federal News Radio – Dec. 20, 2011 – This article appears at http://www.federalnewsradio.com/145/2677691/OFPPs-Gordon-reflects-on-mythbusters-acquisition-workforce

December 22, 2011 By AMK

IG: VA structured $133 million security contract to favor incumbent

The Veterans Affairs Department structured the requirements for a 2010 information security contract to give the incumbent a leg up, VA’s inspector general found in a report released Wednesday, Dec. 21, 2012.

The Office of Acquisition, Logistics and Construction used a technical evaluation process for the Sept. 28, 2010, award that favored “the incumbent, Booz Allen Hamilton, based on its performance as the VA’s Information Assurance and Information Technology contractor,” the IG said.

Booz Allen submitted a $133 million bid for providing support services to the chief information security officer, 22 percent above the least expensive competing proposal of $108.9 million and 16 percent higher than the other bid of $115 million, auditors said.

The acquisition office decided to forgo lower cost in favor of inside knowledge of VA’s procedures and practices, the report said. Organizational knowledge can be a key factor in evaluation of contract proposals, the watchdog added. But Federal Acquisition Regulations state, “such knowledge should not be a justification for assigning strengths and weaknesses without first identifying the criteria as a significant evaluation factor” in procurement documents.

In their evaluation of the competing bids, acquisition officials credited Booz Allen with nine significant strengths, six of which related to its knowledge of VA practices and procedures. Lack of such knowledge was assessed as a weakness in evaluation of the other proposals, the IG report said.

Inconsistencies in proposal evaluation also “appeared to promote the [contract] award in favor” of Booz Allen, the IG report said. Another bidder suggested using of a suite of network monitoring tools that included Sourcefire, Netwitness and Arcsite, and was penalized because VA did not use such tools and officials deemed them a risk to the department’s networks, the IG report said. Yet Booz Allen included the same network monitoring systems in its proposal and the “technical evaluation panel did not identify these tools as potential risks” the report said.

The acquisition office also did not provide a labor-cost rate analysis to justify the premium price paid to Booz Allen. “Such an analysis would have compared the labor rates of all proposals and determined whether Booz Allen Hamilton’s labor rates were reasonable,” the report stated.

The IG concluded, “while the award decision may have resulted in a low risk to the government and a decreased learning curve . . . VA should not have paid a premium price for the incumbent’s knowledge. In our opinion, favoring the incumbent during the selection process did not promote full and open competition in accordance with the Federal Acquisition Regulation. This practice puts VA at risk of awarding future ‘de facto’ sole source contracts at greater expense to the Government because of reduced competition.”

Belinda Finn, assistant VA inspector general, said the IG “will evaluate VA’s contract award decisions in future audits to determine if evaluation panels assess vendor proposals based solely on evaluation factors stated in the solicitations.”

Glenn Haggstrom, executive director of VA’s Office of Acquisition, Logistics and Construction, said in a reply to the IG report that Booz Allen was selected for the contract because it received an “outstanding” rating on its technical proposals, which justified the price premium. He added that seven of the nine significant strengths for Booz Allen made limited or no mention of its experience with VA.

James Fisher, a Booz Allen spokesman said, “the OIG report was not directly focused on actions by Booz Allen itself, and we have no comment on its conclusions.”

— by By Bob Brewin – NextGov.com – 12/21/11 – http://www.nextgov.com/nextgov/ng_20111221_6590.php?oref=rss?zone=NGtoday

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