qui on Monday, October 09, 2000 - 07:00 pm:
Under the 8(a) and the HUBZone
program, contracting officers are required by law to compete
contracts over $3 million and $5 million depending on the item
acquired. The contracting officer worked to rig a sole-source
procurement in violation of law. Here is a quote from the link
"On July 9, 1999, ______ submitted a price proposal of
$3,287,480 for the 160,000 total estimated hours. On July 15,
1999, Mr. CO issued amendment number seven to the solicitation,
which reduced the total estimated guard hours from 160,000 to
146,000, and requested that _______ submit a price proposal by
July 19, 1999. On July 15, 1999, ________ submitted a price
proposal of $2,968,140. Incorporated with the proposal was a
cover letter addressed to Mr. CO from Mr. ___, Chief Executive
Officer of _____, which stated, in pertinent part:
I am submitting the second revision of the cost proposal for the
Ohio contract. I hope that it meets your concerns pertaining to
the $3 million dollar threshold for this contract. This should
be considered as our best and final offer . . . . "
"On June 2, 1999, Ms. ______, the individual responsible for
preparing Diamond’s price estimate, spoke with Mr. CO via
telephone concerning GSA’s market research chart. During this
conversation, Ms. _____ told Mr. CO that _____ would not be able
to perform the 200,000 guard hours listed on the market research
chart for under $3 million. On that same day, Mr. CO sent to Ms.
______ via facsimile a new market research chart that requested
a price estimate for 165,000 security guard hours. Also on that
same day, Ms. ______, on behalf of _______, submitted a price
estimate of $2,940,119 for the 165,000 guard hours. A few days
later, Mr. CO called Ms. _____, informing her that based upon
_______’s price estimate, he would negotiate the contract with
"On June 24, 1999, GSA held a pre-proposal conference with
_______, in which GSA discussed, among other things, changes it
would make to the solicitation. GSA was represented at the
conference by Mr. CO, Mr. CO2, Contracting Officer, Ms.
________, who attended the conference on behalf of _______,
attested that Mr. CO "stated that he needed to keep the
procurement award below three million dollars because otherwise
he would not be allowed to sole source it."
Why do COs break the law and what is done when they are caught
redhanded like this?
C MERCY on Tuesday, October 10, 2000 - 10:05 am:
THE THRESHOLDS YOU MENTION APPLY
TO 8A CONTRACTS NOT HUBZONES. HUBZONES ABOVE 2.5K MUST BE
COMPETED UNLESS SUPPORTED BY A SOLE SOURCE JUSTIFICATION.
SECONDLY, IF THE GSA ESTIMATE WAS BELOW THREE MILLION, THE KO IS
NOT "BREAKING THE LAW". HE MAY HAVE HAD A BUDGET LIMIT OR DID
NOT HAVE THE TIME TO RE-COMPETE AMONGST ALL QUALIFIED 8A FIRMS.
ALSO THERE IS A PROCEDURE AVAILABLE TO SOLE SOURCE ABOVE THE
THRESHOLDS. INSTEAD OF REDUCING THE REQUIREMENT THE KO MIGHT
HAVE CONSULTED WITH THE SBA FIRST TO SEE IF AWARD MAY HAVE BEEN
MADE IN SPITE OF THE INITIAL RESULTS.
on Tuesday, October 10, 2000 - 05:16 pm:
According to the GAO Decision,
the Agency was in violation of the law. However, the protestor
lacked standing, so there was no redress. qui's questions are
interesting. I'd surmise that the CO thought he was within the
law by reducing the award to under $3 million. That may answer
the "why?" question. As to "...what is done when they are caught
redhanded like this?" - I don't know. Happy Sails!
Happy Sails! Joel
joel hoffman on Tuesday, October 10, 2000 - 05:20 pm:
Pardon me. It appears to be a
Court of Federal Claims Decision, not GAO. Happy Sails!
on Wednesday, October 11, 2000 - 07:49 am:
In reading this case in its
entirety, I believe the CO was primarily guilty of poor
documentation to support his decisions and actions.
The Court wouldn't permit certain documents/ affidavits to be
considered in deciding this case. I expect that this
documentation might have better supported the COs actions.
I certainly would expect the value of a new contract would be
less than $3M when a prior contract for double the effort was
valued at $3.2M.
Also, I don't think the COs lawyer would have argued this case
in the Court of Federal Claims if he/she believed the CO was
'breaking the law'.
bob antonio on
Wednesday, October 11, 2000 - 08:40 am:
Below is the page for all of the decisions involved in the case.
The first is the decision where the Court found that the
contracting officer violated the law. The second shows the
attempt by the government attorney to keep damaging testimony
and documentation from the court's view. The Court rules in
favor of the protester and admits the evidence.
One of the historical problems of the 8(a) program is the
concentration of awards to a small number of 8(a) firms. In
part, this is caused by congressional expectations that--once
into the government offices--these firms are expected to market
themselves to the program offices. That is part of the 8(a)
After the "Wedtech" scandal, the law was changed to add
competition thresholds. (However, marketing in government
offices was still recognized as part of the 8(a) development
process.) Since then, I have found several instances where
contracting officers adjust requirements with the assistance of
the program office to avoid competition thresholds.
Several years ago, I did a report with a table in it that shows
the results of procurements in the 8(a) program before and after
the legislation that set the competition thresholds. Before the
thresholds, there were several 8(a) procurement above $3 million
and after the thresholds there were none. I was going to write
an article on it but qui beat me to it.
C MERCY on Wednesday, October 11, 2000 - 09:09 am:
I BELIEVE THE RESULTS BOB
MENTIONS ARE THE DIRECT RESULT OF HOW THE COMPETITIVE 8A PROCESS
IS ENGINEERED,NOT MERELY BECAUSE THE THRESHOLDS EXIST. IN SOLE
SOURCE 8A PROCUREMENTS KOS AND TECHNICAL STAFFS CAN FULLY
EXPLORE A FIRMS CAPABILITIES BEFORE MAKING AN OFFER. IN THE
COMPETITIVE 8A SCENARIO ITS THE SBA WHO PROVIDES THE FIRMS.
ALMOST ALWAYS ITS EVERY FIRM THAT CLAIMS A SIC. THERE IS LITTLE
OR NO MARKET RESEARCH,MANY SOLICITATIONS HAVE TO BE ISSUED AND
EXTENSIVE EVALUATIONS HAVE TO BE CONDUCTED. IF AGENCIES WERE
PERMITTED TO SELECT 8AS FOR THE COMPETITION,USING THE SAME DUE
DILIGENCE ONE MIGHT EXPECT WHEN SEEKING A SINGLE SOURCE, MANY
MORE COMPETITIVE 8A PROCUREMENTS WOULD SEE THE LIGHT OF DAY.OR
IF THE SBA WOULD PROVIDE FIRMS WHICH WERE TRULY
INTERESTED,COMPETENT AND ABLE, THE SAME RESULT WOULD BE
EXPECTED. COMPETITIVE 8AS ARE AVOIDED BECAUSE THERE IS RISK
ENOUGH WITH OUT MULTIPLYING THE EFFORT REQUIRED AS THINGS NOW
STAND.I KNOW SEVERAL KOS WHO LOVE THE IDEA OF COMPETITIVE 8A
PROCUREMENTS BUT HAVE BEEN BURNED IN THE PAST BY HAVING TO DEAL
WITH MANY ,MANY FIRMS WHO MAY HAVE BEEN ABLE TO PERFORM SOME
GOVERNMENT CONTRACTS BUT NOT THE ONES THEY PROPOSED.
Kennedy How on
Wednesday, October 11, 2000 - 01:14 pm:
I've never really liked 8(a)
set-asides when it was forced onto me; it was a much better deal
when we actively went out and did the market research on our own
to determine who was qualified to perform what we wanted on the
SoW. There were a couple of instances where the PM office found
a technically qualified 8(a) contractor to do System Tech
Support work; they wanted him, we can do a 8(a) set-aside, the
command and SBA were happy. But, it was too good to be true,
because before we could effect a contract, the guy graduated
from the program! In the second instance, we got into a dispute
over size classification, and the didn't qualify then.
Our biggest hurdles were the SBA offices who nominated these
firms, sometimes, we determined that they aren't the best
qualified to do the work, but SBA didn't always see eye-to-eye
with that opinion.
bob antonio on
Friday, October 13, 2000 - 07:50 am:
C Mercy and Kennedy:
So it is the SBA that, in effect, is corrupting the competitive
C MERCY on Friday, October 13, 2000 - 09:34 am:
NO . ITS THAT THEY SELECT WHICH
FIRMS THE AGENCY CAN DEAL WITH. I RECALL ONE PROCUREMENT WHERE
THEY SENT US A LIST OF THIRTY SIX 8A COMPANIES FOR A 3.2M FOOD
SERVICE BUY. THE SELECTION FACTORS USED IN PREPARING THE LIST,I
LEARNED LATER,WERE ALPHABETIC LISTING. SEVERAL OF THE FIRMS ON
THE LIST HAD NEITHER THE INTEREST NOR THE ABILITY TO COMPETE.
ALL I WAS SUGGESTING WAS THAT COMPETITIVE 8A SOLICITATIONS WOULD
BE INCREASED IF THE AGENCY,AND NOT THE SBA, WERE PERMITTED TO
ESTABLISH THE LIST.PERHAPS A RULE REQUIRING AGENCIES TO INCLUDE
NOT LESS THAN FIVE 8A FIRMS ON THE LIST MIGHT BE USEFUL..
ALSO,ALTHOUGH I SUPPORT THE IDEA OR REQUIRING 8A COMPETITION, I
THINK IT ALSO NEEDS TO BE MENTIONED THAT PROPOSAL PREPARATION
CAN BE EXPENSIVE AND MANY OF THE FIRMS SELECTED BY THE SBA CAN
SIMPLY NOT AFFORD TO PARTICIPATE IN EVERY ACQUISITION THAT IS
WHY I THINK LIMITED COMPETITIONS AMONGST QUALIFIED 8A FIRMS
MAKES SENSE.ALSO,WITH FEWER PLAYERS THE POSSIBILITY OF ANY ONE
8A FIRM WINNING, ARE INCREASED.
joel hoffman on Friday, October 13, 2000 - 10:00 am:
Cap't Mercy, yes, the SBA often
sends us the wrong contractors. However, I can and do reject
their selection when appropriate. Unfortunately, sometimes only
after the 8(a) submits its proposal do I discover a sham set-up
or non-competent choice. We go back and find another firm.
We also name request firms we know can do the job.
SBA cooperates, as long as the workload is being distributed
There are many nice things about competitive RFP set-asides. We
can get some price competition to avoid the lengthy sole source
negotiation requirements. We can eliminate sham teaming
arrangements. Through discussions, I can help shape the offerors'
technical and management approach, resolve scope of work
technical questions, reduce or resolve errors and omissions,
etc. We have had some good success with RFP's when we were
willing to meaningfully evaluate information and take the time
to conduct discussions. (C:All Caps is hard for me to read) (:
Happy Sails! joel
C MERCY on Friday, October 13, 2000 - 10:28 am:
As I said,Ilike competitive 8a
procurements. Another advantage is the ease of setting up 8a
Kennedy How on
Friday, October 13, 2000 - 01:00 pm:
I don't know if I would say SBA corrupts the competetive
process, unless you are referring to 8(a) set-asides as a
defacto sole-source situation. And, in that instance, under our
preference for CICA, I would agree. Certainly, under 8(a) set
aside process I was familiar with (and alluded to in my last
paragraph), we'd not start out as an 8(a), but that was what it
came back as when it finished it's presolicitation routing. And,
we're talking spare parts widgets here. It seemed like our SBA
office wasn't really doing us a service when you kept getting
duds. It seemed to be an adversarial relationship.
Conversely, if I could have gotten a handful of 8(a) firms to
compete, I wasn't stuck with the one and only; at least I had
options, and could sell it to SBA for responsibility purposes;
without undue delay. I fail to see what advantage it would be to
award a contract to somebody who was of technically marginal
ability solely under 8(a) auspices. I can understand the need to
nurture 8(a)s when they compete against the regular world, but I
don't really see it in 8(a) vs 8(a).
on Wednesday, October 18, 2000 - 12:03 pm:
Contracting officers breaking the
law? What nonsense is this? I would guess that lazy program
officials were calling the shots and the contracting office went
along to get along.
8(a) sole source vs 8(a) competitive? These issues while
entertaining do not represent small business contracting. The
facts are that small business is getting the short end of the
stick no matter what Kelman and big business say. And the
contracting officers are not pulling any strings.
With the House at least talking about helping small business,
Kelman fires away that the legislation will cost the taxpayers
"billions of dollars each year." Faced with the prospect that
small business will reclaim all of the credit card purchases,
Kelman predicts the demise of the program because program
officials don't know diddly about how to handle small business
transactions. As to why small business is suffering, Kelman
maintains that small business is having problems because they
developed a niche in federal contracting for reasons other than
customer satisfaction. Harvard paradigm?