By bob antonio on Monday, April 22, 2002 - 04:56 pm:

Here is the document named as 4/02 memo.

http://www.arnet.gov/Notes/pastperfmemo.doc

It does not provide any other ID on the actual document.

By Anonymous on Tuesday, April 23, 2002 - 09:27 am:

That may explain why I could not find it. I myself am not in agreement with this direction but I am interested in the views of others...anyone think that this position serves the governments best interests?

By formerfed on Tuesday, April 23, 2002 - 09:47 am:

There are many contractors that always manage to complete a contract/project that fully satisfies the government and in many cases surpases expectations. They deliver on time, within budget, and generally provide more than minimally expected. These same companies rarely, if ever, get in disputes with the government and work cooperatively to achieve goals.

Then there are another group of companies that made promises leading up to award but never completely produce. When challenged on these issues, they blame the government as the reason. They often submit claims and file disputes. They agree to work towards solutions only after issues are escalated. After the claims and disputes are resolved, one could argue these companies also delivered on time and within budget. One could also could argue they minimally met what the contract called for and that if the government wanted more, it should have been spelled out in the specs/SOW.

Okay, which type of contractor would I want to select, all other things being equal?

By joel hoffman on Tuesday, April 23, 2002 - 10:42 am:

Angela Styles OFPP Administrator, in writting to senior agency procurement officials. "...contractors should feel free to avail themselves of the rights provided to them by law."

The above does make sense to me. How that is conveyed and what latitude acqusition personnel have, in implementing it is the question. Ms. Styles continues:

"Accordingly, please emphasize to your agency’s acquisition personnel, especially source selection officials, that:

1. Contractors may not be given “downgraded” past performance evaluations for availing themselves of their rights by filing protests and claims or for deciding not to use ADR; and

2. Contractors may not be given more “positive” past performance evaluations for refraining from filing protests and claims or for agreeing to use ADR."

Again, sounds reasonable, except she could have added that contractors with a history of constant claiming, on dubious grounds, (ABUSERS of the system) should be judged accordingly. happy sails! joel

By anon 927 on Tuesday, April 23, 2002 - 11:10 am:

That is precisely the point.....what about business integrity and ethics? I know of way too many claims that were simply paid as it was "too expensive" to win,even when the KO was on firm ground. This kind of direction reminds me of an employee I once had.....and when I was advised that I could not downgrade his performance appraisal just because he filed 36 EEO complaints..all of which were dismissed....as was he eventually.

By Fara Fasat on Tuesday, April 23, 2002 - 01:53 pm:

I think Ms. Styles is correct in reminding agencies that they may not downgrade a contractor for availing itself of lawful remedies. I also agree that contractors that abuse the system deserve to have that reflected in their evaluations. The problem is in how you determine an abuse of the system.

I think her reminder is both timely and appropriate. I know that all too often, the government's goal is simply to win, regardless of the merits of a claim. At the Army's Contract Appeals Division, the attorneys used a checklist of issues to raise in order to get an appeal thrown out, and none of the items related to the merits of the claim.

I believe the opposite of what Anon 927 claims. I believe that it is contractors that give up on a claim because it is too expensive to pursue. A contractor has to pay the legal fees to outside counsel, and this is all excess cost. I work for a large corporation, yet our threshhold for a claim is well over $1 million. Under that and we just wouldn't even bother. On the other hand, the government uses its own attorneys, who are there for that purpose.

Yes, some contractors have tried to milk the system for everything they can get. However, I believe they are the exception. More often, it is the government with its vast resources that has the upper hand.

By Mike Wolff on Wednesday, April 24, 2002 - 08:21 am:

Fara Fasat - To what government are you referring that has "vast resources?" It certainly isn't the one I work for. In most claims, especially large ones, our legal team is severly outmanned. Additionally, the is no requirement for a contractor to use outside legal counsel, or legal counsel at all for that matter. The initial cost of a protest, no matter how groundless, is 34 cents, or the price of the fax call to GAO. If the government loses, we have to pay costs to the contractor. If the government wins, the contractor doesn't have to pay anything.

By Fara Fasat on Wednesday, April 24, 2002 - 12:48 pm:

Mike, you'll have to do better than that. At least make your argument logical and consistent.
In cases where your legal team is "severely outmanned", the contractor is paying dearly for that. You are not paying for your legal team. Furthermore, you have stated my point: the cost is so high that it has to be a large claim before we'll even consider filing it.

Second, you then blithely state that a contractor could simply proceed without legal counsel at all. I guess your concern with being severely outmanned is only when it's the government.

Your comment on the cost of a protest is merely ludicrous. I guess by your measure, the cost of any legal proceeding is just the cost of all the paper. And to think we've been paying lawyer's fees all those years, not to mention the cost of our own time to work on it. Or maybe you know where we can buy preprinted protests for 34 cents?

Finally, the government does not pay every time it loses. I'm not going to research this, but my recollection is that the government can take timely corrective action and avoid paying costs. Maybe if the government would just acknowledge a bad case and do the right thing, it could avoid those costs.

My initial comment was that all too often, the government's goal is to win, regardless of the merits. I'll end with this quote from the GAO in Finlen Complex, Inc., B-288280, October 10, 2001, discussing the outlandish arguments the Army made in its agency report. "In our view, neither of these considerations is appropriate under the circumstances of this, or any other, procurement, nor are they advisable for the integrity of the public procurement process."

By Mike Wolff on Wednesday, April 24, 2002 - 01:29 pm:

Fara Fasat - Last I checked Government lawyers didn't work for free - so yes, we are paying our legal team (which usually amounts to just one lawyer). When I say that the cost of filing a protest is the cost of a stamp, I'm referring to the use of in house lawyers or the non-use of lawyers. Your original posting implies that in order for a contractor to proceed he must have outside legal counsel - that is simply not true.

I'm not disagreeing with you that the Government may sometimes try to win, regardless of merit. What I'm saying is that from my perspective I have seen the opposite happen more frequently. Contractors, especially incumbents, protest when their case has no merit all the time. I had a recent case where the contractor protested without ever requesting a debriefing first, while knowing based on the unsuccessful offeror letter that their total evaluated price was more than 70% higher than the awardees. I had another case where a contractor protested after receiving a debriefing, and admitted that the issues in his protest were adequately supported in the debriefing, but he wanted to "have his protest on the record" regardless. To say that protests do not cost the government, even if we win, is totally inaccurate. There is a tremendous administrative cost involved in defending even black and white protests.

I believe that GAO should require debriefings before contractors are allowed to protest. Then, if a protest is still filed, GAO should conduct brief oral arguments to see if the case holds any water, or is just a nusiance protest (usually done by the incumbent trying to get the current contract extended during the protest process).

That being said, I agree that when the Government gets a protest they believe has merit they shouldn't fight it. I've received valid protests and decided not to fight them for the sake of fighting them. I know this doesn't always happen, but you must acknowledge the fact that contractors are not innocent parties in the protest process. If they were, GAO would be upholding a lot more protests than they do.

By Fara Fasat on Wednesday, April 24, 2002 - 02:25 pm:

I don't think we disagree that much. In my original comment, I said that there are contractors that abuse the system. The problem is in identifying the true abuse, as opposed to punishing a contractor because it dared to oppose you. That was the message in Ms. Styles' memo, and I agree. I think you do too. I'll agree to disagree over which side is more at fault.

By Anonymous on Thursday, April 25, 2002 - 07:12 am:

OFPP MEMO 2 APR 02 supports GAO decisions, NOVA B-282947 and ONE SOURCE B-283445

By formerfed on Thursday, April 25, 2002 - 08:29 am:

Something troubled me about this thread and I now see what it is. My personal opinion is past performance information should be gathered and used to assess the risk of successful performance. To do that, one needs to be assertive and put lots of effort extracting what's needed. It's not whether a company submits claims or files protests, but whether a company is customer focused, is cooperative, works with the government to achieve mutual goals, is responsive, is innovative in crafting solutions to needs, etc. When those kind of questions are asked of customers (both commercial and government), one gets at the essence at whether a particular firm will be successful or not. I also bet that positive answers on this issues correlates to few submittal of claims and protests.

By joel hoffman on Thursday, April 25, 2002 - 08:46 am:

I tend to believe that prolific claims submissions would otherwise be consistent with the general attitude and mangerial approach of the firm, and that firms, which only submit valid claims, would probably exhibit the opposite traits of management and customer relations.

So, you don't have to judge past performance on whether or not the firm exerts its rights under the contract. The underlying or accompanying behavior may be judged on its own merits.

I think you were driving at that point. happy sails! joel

By Mike Wolff on Thursday, April 25, 2002 - 02:42 pm:

I hope no one misinterpets my postings above as thinking that the Government should hold protests and claims against a contractor. I believe that contractors have the legal right to proceed with protests, claims, etc., and shouldn't be penalized for doing so.

Fara - I also agree with you that our positions are similar - you're right, reasonable people can agree to disagree.

Mike

By anon2 on Monday, April 29, 2002 - 07:51 am:

My question is If the past performance evaluation reflects the contractor's true performance, would there even be a dispute?

One of the things I saw most in evaluating past performance was - (1) the Prgram Office didn't reflect the true and actual performance of the contractor when it is adverse and (2) if the Program Office did then the Contracting Office(r) overturned and or upgraded the contractor's evaluation ranking to avoid a "fight" or dispute on the evaluation.

The second scenario happens less than the first, but I give accolades to the Program Office that reflects the "true" performance of the contractor and rarely does the evaluation lends itself to whether or not the contractor has filed a claim or protest.

I recently witnessed the second scenario and was extremely disappointed with the COn overturning the adverse past performance report. This was one of very few times that the Program Office reflected less than satisfactory performance. The contractor refused to furnish the manpower on aN IDIQ task order(and seubsequent orders) - which should have put him in the default. The PRogram Officer was paying more to find the support elsewhere. Their evaluation reflected the lack of support. Contracting Officer changed the rating and made him satisfactory . Now I look forward to having the potential of doing business with this contractor again without any confidence that I can rely on the contractor.

This relates to formerfed's comparison of the "good" contractor that you will want to work with again and the "bad" contractor you hope not to encounter.

To the point, if the evaluations truely reflect actual performance I don't think there will be a point where the OFPP memo would apply.

By Vern Edwards on Monday, April 29, 2002 - 10:53 am:

All:

anon2 has sparked my interest with his/her comments about the "true" performance of contractors. My observation is that judgments about contractor performance are both objective and subjective, and reflect both contractual and extra-contractual considerations, and that it is often difficult to reach agreement, even within the government, about what is "true" about a contractor's performance.

I know of cases in which an agency's contracting officer has thought that the contractor's performance was good, while the agency's technical personnel have despised the contractor, and vice versa. Such cases usually reflect different criteria for evaluating contractor performance and different inter-personal experiences.

In one case, I was asked to mediate when a government agency and its contractor were not getting along. After I had listened to each party tell its side of the story, I realized that the contractor was performing in accordance with the letter of its contract, but that its manager was not doing an adequate job of calming the fears of a nervous-nelly COTR. The COTR was howling to the CO, not because of what the contractor had failed to do, but because he was worried about things the contractor might fail to do. The CO was at the end of his rope, because the contractor hadn't actually failed to do its job and did not appear to be on the brink of any failure and so he did not have any contractual basis for complaint or action, but the pressure from the COTR was getting to be too much to bear.

With respect to "groundless" protests: I have been asked to provide opinions about prospective protests, and more often than not I have realized, once I've sorted out the facts, that the offeror does not have a case. In the overwhelming majority of such instances the offeror simply did not understand what the rules really were. The FAR confuses many a contracting officer, so why shouldn't it confuse offerors? Moreover, even when you know what the FAR says, you don't necessarily know what it means, or how the GAO will interpret it. (Consider Cy Phillips's article about the discussions rule, which appears at the Analysis page of this site.) In such cases of ignorance or misunderstanding, the government's behavior -- which is often characterized by the CO's inability or unwillingness to provide a forthright explanation of what happened and why -- ignites the offeror's distrust, which is fueled by ignorance and disappointment and, yes, mistreatment, leading to a useless protest. Debriefings don't always help. Poor debriefings are more common than one would like to think and only fan the flames of distrust. I have watched on several occasions while an attorney has patiently tried to explain to an outraged businessperson that he or she has little chance of succeeding at the GAO, all to no avail. Of course, COs often see such protests as harassment by disgruntled losers.

Claims also drive COs nuts. I recall a construction contract valued at about $2 million under which the contractor filed more than 100 claims, some for as little as $80, all well-prepared and fully documented. The contracting officer was beside himself, overwhelmed by the paperwork. The contractor was polite, but very no-nonsense. His view was that the government had set all the rules and that he was merely playing by them, and that he had no reason to absorb even $80 in costs in the interest of customer relations when he had won the contract on the basis of his low bid.

I find it often to be true that the government likes to play by the rules except when the rules are a nuisance.

By joel hoffman on Monday, April 29, 2002 - 11:43 am:

Who in their right mind would purposely (in a best value acquisition) subject themselves to the agony and torment of dealing with the firm you described? Not me, and I'd find a way to pick someone else, legally. I'd rather lose a protest than deal with a firm like that... happy sails! joel

By Kennedy How on Monday, April 29, 2002 - 11:56 am:

Joel,

I guess my real question is if the contractor has a very good claim, and well within his rights to submit the claim, and his position is defensible, why is the Contracting Officer, or Government, denying him what is due him anyway? If you owe a contractor $80, and you decide not to pay him, why are you even saying no to him on this? Seems like the Contracting Officer is making work for himself.

I can understand it if the claims have no basis at all, but a winner is a winner. Maybe I'm missing something here.

Kennedy

By Anonymous on Monday, April 29, 2002 - 01:21 pm:

The question is not whether the claim is defensible or not but rather can filing 100 claims have some effect on a contractors performance report. I think it can and should and its OFPP who thinks otherwise.....so what do you think?

By Vern Edwards on Monday, April 29, 2002 - 01:30 pm:

Anonymous of April 29 at 1:21pm:

Do you think that if a contractor submits 100 "defensible" claims the government should assess its performance negatively?

By joel hoffman on Monday, April 29, 2002 - 02:12 pm:

My response was to a situation where there were "100 defensible claims" on a $2 million construction contract (I assume by "defensible", you mean justifiable on the part of the plaintiff, but not "defensible" on the part of the respondent).

Did the contractor request equitable adjustments, first? Or did it develop 100 separate CDA claims and submit cold turkey (now considered within its rights)? I've dealt with both types of contractors. Was this a Corps of Engineers' construction contract? I think I would have heard of something that notorious, if it was one of ours, at least a contract since 1980. Some of the launch facilities at Vandenburg were pretty dirty, but I'm not aware of any "monster" contracts in the $2 million range that would have generated 100 separate claims.

At least a contractor, submitting REA's, prior to resorting to a "claim", is generally trying to work with the Government to resolve the situation. The matter usually doesn't turn into a formal "dispute", unless the Government rejects the REA or doesn't provide a timely response. In addition, the better contractors usually consolidate indvidual issues when submitting claims.

I personally have never seen a (Corps Of Engineers) field resident office so obstinate in its interpretation that the Contractor had to resort to a HUGE number of "defensible claims". If it gets that bad, upper management steps in.

On the other hand, I have seen a few contractors, who make it a practice to submit piles of separate claims, without any notice. Its a tactic used to bury the Government office in legal procedures, to maximize CDA interest and to make the Government expend astronomical costs to process/answer separate claims.

The ASBCA didn't particularly appreciate it - I think their procedures encouraged or required that the Contractor consolidate claims, wherever possible. Nobody can realistically deal with 100 separate claims on a small contract. Up until about 1995, a matter was not considered a "claim", without a pre-existing dispute between the parties. I'm guessing that the incident Vern referred to involved matters in dispute, if it occurred earlier than that.

I never encountered one of our smaller contracts so bad that "100 claims" were justifiable.

Most contractors normally combine issues into consolidated claims.

The parties to a contract have a legal duty to cooperate in reasonably efficient contract administration. Submitting 100 separate CDA claims on a $2 million construction contract indicates the serious failure of SOMEBODY to cooperate, Government and/or Contractor. I'd be amazed if it were the Government, on a COE contract.

So, from my perspective, heck yes - "100 defensible claims" on a $2 million construction contract would be out and out harassment and failure to cooperate... happy sails! joel

By anon 1-21 on Monday, April 29, 2002 - 02:15 pm:

Vern
Not necessarily...but then OFPP seems to have closed that door hence my objection.

By Vern Edwards on Monday, April 29, 2002 - 03:03 pm:

anon 1-21 et al.:

First, I do not think that the OFPP memo is binding on agencies. According to the Office of Federal Procurement Policy Act, the OFPP Administrator can promulgate policies and procedures only "in a single Government-wide procurement regulation called the Federal Acquisition Regulation." See 41 U.S.C. § 405(a). If the OFPP Administrator wants to promulgate a rule in the FAR, then she must ask the Secretary of Defense, the Administrator of General Services, and the Administrator of NASA to do so. Only if they cannot agree or otherwise fail to act can she promulgate a rule, and then she must follow the rulemaking process prescribed in the Administrative Procedures Act, 5 U.S.C. Ch. 5. See 41 U.S.C. § 405(b). You will note that Ms Styles's memo does not ask the agency heads to amend the FAR. As far as I'm concerned, her memo is advisory only.

Second, even if you consider the memo to be in some way binding, I don't think it should be interpreted as prohibiting consideration of misuse of the disputes process in the evaluation of a firm's past performance. In order to shed some light on the proper interpretation of the memo, one should consider the following quote from the GAO's decision in the matter of One Source Energy Services, Inc., Comp. Gen. Dec. B-283445:

"While it is appropriate, in evaluating past performance, to consider a contractor's 'combative' attitude, we have recognized that absent some evidence of abuse of the contract disputes process, contracting agencies should not lower an offeror's past performance evaluation based solely on it having filed claims; firms should not be prejudiced in competing for other contracts because of their reasonable pursuit of such remedies in the past. See Nova Group, Inc., B-282947, Sept. 15, 1999, 99-2 CPD ¶ 56."

Underlining of "reasonable" added.

Thus, I would interpret the OFPP memo as saying that COs should not assess a contractor's performance as poor merely because it filed protests or claims; however, reasonably reliable evidence of combativeness (i.e., uncooperativeness) or abuse of the disputes process is within the realm of valid consideration. Thus, the question is what would constitute valid evidence of a "combative" attitude and of abuse of the contract disputes process. At one extreme, the mere filing of a large number of claims is not, in and of itself, abuse; but the filing of even one demonstrably false claim is clearly an abuse. (As an aside, I don't think COs are in any position to assess any offeror's past performance on the basis of the number of protests that it has filed.)

By anon 1-21 on Monday, April 29, 2002 - 03:30 pm:

Vern
I do not disagree with you but the memo says ,in part "...the filing of protests...claims or the use of ADR,must not be considered by an agency.....". Which HCA is going to buck this? Unless OFPP simply wants to indicate that the mere filing itself is no cause for revising performance reports. And if they feel the need to say it out loud then I would be concerned as to whose practice this was.

By Dave Barnett on Monday, April 29, 2002 - 03:32 pm:

FAR 42.1501:

"...It includes, for example, ...the contractor's history of reasonable and cooperative behavior and commitment to customer satisfaction; and generally, the contractor's business-like concern for the interest of the customer."

Wouldn't the filing of frivolous claims therefore be indicative of a lack of a business-like concern for the interest of the customer?

By Vern Edwards on Monday, April 29, 2002 - 03:39 pm:

An HCA need not "buck" it; but he or she must interpret it, and I would interpret it in light of the GAO's decisions, since to interpret it in any other way would, in my opinion, be unreasonable. Do you really think that Ms Styles would say that she has prohibited consideration of the fact that the contractor is being prosecuted or has been convicted of filing of one or more false claims.

I really don't see the memo as a problem. The problem is coming up with reasonable criteria for detemining when a contractor has been combative and abusive of the claims process in other than obvious instances. I do not think that it is reasonable to consider a contractor combative merely because it has disagreed with the CO's or the COTR's interpretation of the contract. And it is not reasonable to give a contractor a bad report merely because it has filed claims.

By 1-21 on Monday, April 29, 2002 - 04:00 pm:


Again I agree..the mere act of filing a claim or protest,in and of itself, is not a consideration in performance reporting. As to filing false claims, relief lies elsewhere as it does when a contractor is being prosecuted. But no guidance accompanied the memo; and the agency I work for simply re-distributed it without amendment. Now technically maybe it might not carry regulatory weight when issued by OFPP but when an agency promulgates it ,its enforcement is apparent.

By Kennedy How on Tuesday, April 30, 2002 - 12:36 pm:

I'm of the old school that a claim is submitted after the ADR or REA process has gone through. Certainly, having a cooperative, work with the Government attitude is better than being combative. I suppose if somebody DIDN'T follow those steps, I wouldn't take too kindly towards that, but I suppose if he's well within his rights to do so, I don't know.

On the other hand, say if somebody tells the contractor that REAs wouldn't be looked too kindly on, or the Government is slow in something, or if there are timeliness issues, perhaps the contractor feels it's better to cut to the chase. I can understand that sort of behavior as well. It just all depends on the instant situation.

The real question is Why are we in the position of needing to even DO all these REAs in the first place? Why are we constantly in a position of a potential dispute? And, if those REAs have merit, what's the holdup to even push a contractor into this kind of behavior?

Kennedy

By Anonymous on Tuesday, April 30, 2002 - 12:59 pm:

Because the Government is not a business...we have created a system where "equity" as opposed to "equality" is the practice. Contracting with the governemtn is less an enterprise than a "civil right". When paired with the theory of the "deep pocket" it is no suprise that government business practice has devolved into contractual ambulance chasing.

By Vern Edwards on Tuesday, April 30, 2002 - 01:01 pm:

Kennedy:

I'm not sure that I follow your thinking, but based on what you just said my impression is that you consider the submission of a claim, as opposed to the submission of a non-claim request for equitable adjustment (REA), to be some kind of hostile act, indicative of combativeness. Is that what you think?

By Vern Edwards on Tuesday, April 30, 2002 - 01:18 pm:

Anonymous of April 30 at 12:59pm:

What are you talking about? What do you mean by "equity"? Here is how Black's Law Dictionary defines equity (I'll leave out the usage examples):

"1. Fairness, impartiality; evenhanded dealing... 2. The body of principles constituting what is fair and right; natural law... 3. The recourse to principles of justice to correct or supplement the law as applied to particular circumstances... 4. The system of law or body of principles originating in the English Court of Chancery and superseding the common and statute law (together called 'law' in the narrower sense) when the two conflict... 5. A right, interest, or remedy recognizable by a court of equity... ."

Here is how Black's defines equality:

"The quality or state of being equal; esp., likeness in power or political status."

In your mind, what is wrong with "equity"? What do "equity" and "equality" have to do with "ambulance chasing"? What constitutes "ambulance chasing" in your way of thinking? What is wrong with a contractor seeking what he or she reasonably thinks is due under the terms of the contract? What is wrong with filing a claim?

By Fara Fasat on Tuesday, April 30, 2002 - 02:30 pm:

This thread is about to leap tall digressions in a single bound. As much as I'd like to see Anon 12:59's response to Vern's comments, his (or her) statement self-destructs without any help.

We had just reached the point where reasonable minds seemed to agree that the filing of a claim or a protest, by itself, was not to be used against a contractor in an evaluation or a responsibility determination. We also agreed that this appeared to be the intended message of Ms. Styles' memo. Beyond those two points, such as which side is more at fault for abuses, we are unlikely to reach agreement.

Now, have we answered the original question, which was "[does] anyone think that this position serves the government's best interests?" My answer is yes, this memo was appropriate, because the government had lost a protest when it downgraded a bidder for its claim history. Furthermore, in a system that goes to excruciating lengths to make sure that all bidders and contractors are treated fairly, penalizing a contractor for filing claims is simply ... unfair.

If anyone thinks this memo does not serve the government's interests, here's your chance to state why.

By Vern Edwards on Tuesday, April 30, 2002 - 03:04 pm:

I think that the memo serves the government's interests, to the extent that it is in the government's interests to be concerned about equity in its contractual relations. Based on some of the opinions expressed here, some people in government contracting consider the mere exercise of one's contractual rights to be offensive. Prospective and actual contractors need to be protected from those people.

However, I do not interpret the memo as prohibiting consideration of uncooperative ("combative") behavior during contract performance. Nor do I believe that the memo prohibits consideration of a contractor's abuse of the disputes process as evidence of combative behavior. I think that the memo prohibits consideration of a contractor's resort to the disputes process as being, in and of itself, evidence of poor performance. I also think that agencies should not consider an offeror's use of the protest process in any evaluation of its past performance. The evaluation of past performance should focus on contractual performance.

By joel hoffman on Tuesday, April 30, 2002 - 04:48 pm:

Vern, If you are referring to me, I totally agree with the memo and its intent. The mere exercise of one's contractual rights is not offensive to me. I agree with everything you just said in your 3:04 post, as well as with Fara Fasat.

I can also distinguish between reasonable and abusive behavior on the part of either or both parties. happy sails!

By webmaster on Tuesday, April 30, 2002 - 05:07 pm:

Thread:

In regard to my note of "April 25, 2002 - 05:27 pm" note, the webmaster that manages the Arnet site confirmed that the document posted on "April 22, 2002 - 04:56 pm" was received from an OMB official. This document is considered authentic and all other OFPP documents posted in MS Word format with no official markings will be considered authentic by this site.

By Vern Edwards on Tuesday, April 30, 2002 - 06:15 pm:

Joel:

I was not referring to you. I would not expect that kind of thinking from you.

Vern

By Kennedy How on Wednesday, May 01, 2002 - 12:28 pm:

Vern,

No, I don't necessarily think that filing a claim is "combative". But, if the contractor wants to play games with the Government, then my thought might change.

As a Government Contract Specialist, I don't like claims any more than the next person, but if the contractor persists in filing unfounded claims, I'd be annoyed. On the other hand, if in fact we are in a bona-fide dispute, then I'd understand the contractor going to use that mechanism to get satisfaction. The Government has two choices. It can either settle it amicably via REA, or it can play hardball and have the contractor submit a claim, if he so desires, depending on the circumstances of the "claim".

My other feeling is this: If a contractor files 100 claims against a contract (and presuming they are all valid in some manner or form), then to me, that's a poorly written contract. Or, at least if this was going on, and looks like it would go on, then something should be changed to cover this so it's not such a burden. I can't believe that the contracting office would let itself get into this position (again, presuming the claims are valid).

Kennedy

By Kennedy How on Wednesday, May 01, 2002 - 12:38 pm:

I think the memo serves the Government's interest, because I remember telling Source Selection members that called me about a particular contractor who's the contractor on a big contract I managed that we are currently in dispute in X number of claims against the Government. Whether or not that claim was valid, the Government's position is pretty much always that it wasn't. I felt it was a part of my contract administration efforts to defend against the claim.

Having said that, I also felt that a claim shouldn't be held against a contractor, since it was currently being adjudicated. I felt it was bad form to count that against him since a positive judgement on his behalf would obviate any negative impression on the contractor for the instant evaluation. Similarly, I also thought that any adverse reaction the Government takes against a contractor due to a perceived breach should be set aside unless the action is closed (no pending dispute) when being evaluated as past history.

Kennedy

By Vern Edwards on Wednesday, May 01, 2002 - 01:22 pm:

Kennedy:

I'm not trying to nitpick, but I have to confess to being confused by what you've said, and I want to pursue the matter in order to sort things out.

It appears to me that you think that the submission of a claim, as opposed to a non-claim REA, indicates some unhappy state of affairs between a contractor and the government. I'm basing this interpretation on the following things that you've said:

"I'm of the old school that a claim is submitted after the ADR or REA process has gone through."

and

"As a Government Contract Specialist, I don't like claims any more than the next person... ."

and

"The Government has two choices. It can either settle it amicably via REA, or it can play hardball and have the contractor submit a claim, if he so desires, depending on the circumstances of the 'claim'."

Why is it that you don't mind receiving an REA, but don't like to receive a claim? A claim is just a request for something, money or some other relief. A dispute--a disagreement--is not a necessary part of a claim, except with regard to routine requests for payment. The Court of Appeals for the Federal Circuit decided long ago that REAs are not routine requests for payment, and in many cases there is no difference between a claim and an REA. The only practical difference between a claim and a non-claim REA is that a claim must be settled or disputed within the time limits set forth in the Disputes clause. Is that what bothers you? You don't like the time limits?

By Anon 1350 on Wednesday, May 01, 2002 - 01:49 pm:

I fully agree with the memo, though perhaps for different reasons than most expressed here.

That said, I think there should be some way for the government to track claim history to detect abuse and "combative" contractors. I think Anonymous of April 30 at 12:59pm was trying to apply the fifth definition, a "right" to contract, in the post. If so, I think there is some point to the post that applies to the discussion. I would agree that there tends to be such consideration of a "right to contract" that the government sometimes tolerates proven disruptive and uncooperative players that drive a cost on the government side.

More than a few contracting shops seem to have a few they dread seeing as potential winners. I well remember widespread relief that one potential offeror did not show for an RFP as they had a long history of doing the job, but with "high maintenance" and lots of extra paperwork resulting from some sort of challenge to almost every government move. Let me put it this way: Who is "better" and "cheaper" of equally competent contractors? The one who quietly and cooperatively overcomes those little obstacles that will come in the way or the one who whines, gripes, demanding you to become officially and a documented part of each difference and causing you to invest additional time in the job? I think the answer is obvious.

Claims are not the same species as the constant drag on a contract I just described. I do not think they belong in source selection while I do think that other behavior does. My reasoning is that claims have a legal color that remove them from the source selection team's normal expertise. I would not trust most of the teams I've known evaluating past performance to make the fine distinctions or even have adequate data to make distinction between a contractor forced into twenty valid claims and one with one valid and nineteen frivolous claims.

I thus agree with the memo. I am not in agreement with an idea that the claims record has no place in consideration. At least privately it appears to be considered by the selecting official. I believe the government could benefit by a special team of experts, perhaps at the OMB/OFPP level that would investigate such issues on a government wide basis and take remedial action. That could range from a bar to further contracts for really bad actors to some published weighting that could be used in the selecting official's formal record for simply problematic businesses. This would allow selecting officials, without intimate personal knowledge of such behavior, to formally consider it in the selection.

A right to be fairly considered is not abridged by the government's fair and expert assessment on whether you have a track record in this area for being unnecessarily high maintenance.

Please Go to Part 2