Stan,

We'll just disagree on this one. As a matter of fact, your example illustrates what I think is a problem. There are certainly responsibilities internal to an agency and agency-to-agency, but the agencies do not work for each other, they work for us -- the voter and taxpayer -- period.

I'll accept customer like relationships in internal acquisition activities and probably overstated my position in the post. I will not accept internal loyalties to the extent some seem to advocate where the real customer seems forgotten in the concentration on intermediate internal customers. If an agency's charter is to deliver goods or services to a mission validated by the public through Congress and the Executive those performing that mission are a customer base. For example, many DoD and Service agencies never deal with the public, but their real customers are the service people who are closer to the public's requirement than they are. Their requirements trump any internal organization's desires -- including its continued existance.

I will not accept the internal delivery people as being the customer. The pizza delivery people need the tools to deliver the goods, but they are not the customer. A shop mistaking demands for sports cars (yes, I know, pizza deliverers actually provide their own) to do the job will probably shortly be out of real customers due to overpricing and competition. Since government is "protected," in the sense there isn't the bottom line and competition pressure, there is real danger in focus on the our internal delivery people.

Acquisition's delivery of the tools to support that delivery to the internal customer seems to have been confused to a higher degree lately. Now the workman who is receiving the tools from acquisition is too often seen as the end customer. Not for a minute will I deny quality and speed of such deliveries is important or that the intermediate "customer" is important. I was one of those (1360/1301), before my entanglement with the surprisingly complex and interesting world of technology acquisition, and occasionally encountered difficulties with the tools forced upon me. More than once I found myself half a world away from home with a piece of low bid junk making do when we'd ordered the right tool. What I called and wished upon the "dumb, stupid supply clerks" is not printable here.

The things that really disturb me in the focus on internal customers are:

a. Rice bowl protection, what I'd perhaps describe as driving requirements for a slide rule computer interface because I know slide rules and my job lock or authority lock might be endangered if real change is forced upon me. In worst cases it can be sabotage of mission directed change to ensure the real customer cannot do without the old line organization. This appears to be all too prevalent in IT technology acquisition where the stated desired technology will empower the customer and risk the intermediary organization.

b. Requirements inflation, what our Systems Engineer contractor once called the "Mazaratis to deliver hot pizzas." I limped along for years with inadequate computers. Bad and inefficient. I'd have loved to have had the fastest, biggest, best on my desk. It would have been fun, but I didn't need that to do my job and should not be elevated to such importance as a customer that I can drive to "I want" beyond good enough.

c. False knowledge extrapolation, where deep knowledge of the subject is presumed to extrapolate into deep knowledge of the solution -- particularly in technology. For example, a division's deep and intimate knowledge of data does not make them data base experts. Their input is absolutely critical, but when they drive technology decisions as "the customer" the result is usually obsolete and often full of needless bells and whistles.

We (the public) would be fools to slight the workers on tools, pay, or other items necessary to do the job, but even bigger fools to let them demand tools poorly suited or unnecessary to the job, particularly very expensive ones. We'd be total fools to continue funding a circus in which all the workers are demanding and getting their interest served while ignoring ours. As April 15 nears I'm sometimes feeling a bit foolish. Wasn't IRS the one that spent so much for so little on a computer system? Weren't problems with a, b, and c above identified as problems? Issues and abuses connected with those three and others tend to get hammered out in the type of arrangement I mentioned. They tend to get swiftly accommodated in the environment you mention. Therefore; I believe what you described is one of those institutional or systematic weaknesses that I asked about earlier.

I'm afraid some of reform's streamlining and current culture of pleasing everybody have become institutional facilitators for a loss of focus on the ultimate customer. The reforms were needed to break the dead hand of over control, but perhaps like NASA's "faster, better, cheaper" we have forgotten that there are reasons behind the controls and are now crashing on Mars. Change, moderated by knowing the reasons behind the old way and what needs change and what does not is great. It is needed. Change without that analysis usually brings unintended consequences that result in lock down returning. Quite frankly, government agencies who, like Corps of Engineers recently on the "grow the agency" issue, forget who owns the plant and who they really serve need a sudden and shocking attitude adjustment delivered by the political arm.

Ramon

By Vern Edwards on Thursday, March 30, 2000 - 12:37 pm:

John:

You probably already know this, but FAR 16.505(c) requires agency heads to designate a task order contract and delivery order contract ombudsman who shall be responsible for reviewing complaints from contractors on task order contracts and delivery order contracts." The FAR says that the ombudsman must be "a senior agency official who is independent of the contracting officer...."

While the contracting activity may not have an ombudsman of its own, there may be one at a higher level within the agency. I think that some agencies designate their task order ombudsman in their agency FAR supp. You might check to verify that the agency that you are dealing doesn't have one at a higher level.

By Stan Livingstone on Thursday, March 30, 2000 - 11:15 am:

Ramon,

There are some procurement shops that share your point of view: "I disagree that a government employee is ever the "customer" -- important operator or user -- but the customer is the payer of the bills, ie., taxpayer. The rest are just agents". Many of these shops are much smaller than they used to be, lost grade enhancing and challenging work, or even going out of business. Agencies that don't view Governemnt employees as customers see business taken to someone that does.

I really take issue with what you say. You can provide top notch and quality support to your Government customers and provide value for taxpayers at the same time. Establishment of independent acquisition corps is not the answer either. It's training and empowering 1102's to do the proper job by partnering with customer to meet their needs in a responsive manner, and make good, prudent business decisions.

Stan

By John Ford on Thursday, March 30, 2000 - 10:29 am:

Vern, to respond to your question about the ombudsman, the answer is that the contracting activity doesn't have one. They are considering creating one, but haven't yet figured out the procedures for affording contractors a fair opportunity to be considered for award of orders. When, and if, an ombudsman is created, the scope of the ombudsman's authority will be interesting. After all, an ombudsman generally has no power to order or enforce anything, only to intercede.
By the way, I just came across a recent GAO report on competition under MACs in which the GAO faults DoD for its lack of competition. It is Contract Managment: Few Competing Proposals for Large DoD Information Technology Orders (NSIAD-00-56, March 2000). It is available on the GAO website.

By Ramon Jackson on Thursday, March 30, 2000 - 01:12 am:

As for the separation of powers (below) and the immediate issue, some examples:

A good contractor in trouble for threatening a line element or favored incumbant with technological or other change is likely to have allies in the PO/CO area.

A good contractor not jumping high enough for either a power mad PO or CO is likely to have allies in the line element they are delivering to or the other of the two contracting areas.

A "good" contractor getting in trouble at once with all three is probably not. At the least they need to cut losses and seek other work.

Separation here dampens the effect of a powerful bad apple and forces them into peer review.

By Ramon Jackson on Thursday, March 30, 2000 - 12:59 am:

Long ago, on the old WC, I posted what I hoped would get a new thread started. It didn't.

Due to a somewhat unusual set of circumstances I got to see a system in action that was not by any means perfect, but acted to keep this sort of thing and other glitches and problems to a minimum.

This led me to begin thinking of how our Constitution balanced power to avoid a tyrant. We've had lots of problems, but considering what could have happened with our diverse nature, it has worked with what are really minor diversions and perils.

One of the problems in contracting, particularly technology development where core interests of an agency may feel in peril from change, is the line element destined to use the contract result becoming a "customer" tyrant. I disagree that a government employee is ever the "customer" -- important operator or user -- but the customer is the payer of the bills, ie., taxpayer. The rest are just agents.

Contracting Officers or shops can become petty tyrants over the requesting elements and/or contractors. They may be short on technical knowledge and strong on "authority" to the detriment of all.

Program Managers and Offices can become tyrants, controling requirements exclusively without adequate recognition of real needs and bullying Contracting Officers who often are lower graded and less well connected. There was another question on this board about who does the KO evaluation indicating that sort of problem. That warrant is something, but just a piece of paper under the right kind of pressure.

I liked the idea of the Acquisition Corps as an independent, professional acquisition community. Though hated by the line agencies, it could have been a start to a system eliminating or at least controlling some of the behavior ranging from malicious to misbegotten. A modification I'd have liked to see would be a three way separation:

Line Agency roughly corresponding to Congress with the budget and operational requirements.

Program Office, parallel to the Executive, in an independent corps trained to turn operational requirements into contractable requirements and deeply in the issues of contracting, including technical specialties capable of COTR/COR duties.

Contracting Agency with warrants from a third party, roughly parallel to the Judicial, required to be attuned to getting the job done, but also to see it is done to the law and rules with at least fair immunity from bullying.

To some extent the large SYSCOMS operate this way. There are problems, even scandals, but an improved version might be close to what I'm thinking.

If nothing else, I've seen few technical or contracting issues not improved by being forced to the anvil of some hard hammering by such a group. It is usually when these things are rammed through by some powerful interest without exposure to peer review that we end up with "dosen't work," "cost out-of-sight," or "IG and Congress are investigating."

No "system" will eliminate problems and even scandal, but we can be sure some forms of streamlining and removal of policing will encourage exactly that. Acquisition REFORM was long overdue. Removing traffic laws and police gets us crashes. If we are to replace a system inefficient by its over cautious, over regulated aversion to risk and monitoring with something that isn't as bad the other way strong policing is needed.

As I think I also said before, we didn't put racial and sexual discrimination and harassment in the Federal workforce to a low background noise by brown bag lunches and TV events. Abusers got nailed. Removed. Not just invited to discuss the matter.

I'm pretty well convinced a better solution could be engineered, but won't. Unfortunately, despite all the wails on the Hill, Press and public about waste and abuses in acquisition -- and among us (though I'm "ex") -- we get what we require. We are unwilling to really analyze and engineer the system so we muddle through with tweaks. Too many sensitive toes and rice bowls.

Vern,

Inability to get into specifics was the reason that my "original" problem was inappropriate for the is forum. Getting into specifics then caused the correct evaluation that "both sides" could not be heard on a specific issue. This is a general issue.

To All,
John jumped on a MATOC as an example of where intimidation could occur. Many other scenarios could present themselves.

A) A contract for service alpha has been held by Company Q. A services contract for service beta has been held by Contractor W. An innovation by Contractor Q is proposed which would unseat (in everyone's opinion) Contractor W. It is indicated by the CO that the innovation should be withdrawn from discussion especially since the contract renewal for Contractor Q is coming up shortly. Intimidation has ocurred.

B) A contract "bundle" is being discussed and Contractor E has been fixing elevators and Contractor P has been doing plumbing. The contemplated bundle includes both. Either contractor may object to being "bundled" out of a prime role but they are told to shut up and that Contractors like A, B and C who are large businesses will be considered equally qualified. Contractor P objects to the bundle and is told that he is unwelcome on any team because of his objection. Intimidation has ocurred through an intermediary.

C) A contractor has an innovative idea and is under a MATOC with the competitor who has been doing things the "old way". The technical people don't want to change but the contractor can show savings and quality improvements. Technical people have retired and gone to work for this competitor. The innovative contractor is told to be quiet so that the "old way" can continue. The CO is not technically qualified to judge. Intimidation by a TRCO or requirer has ocurred.

D) In many cases the ability to object is basically a "bet your entire future" decision. If you win fine but considering the odds management may direct that you don't even try. Intimidation by evaluation of outcomes

The opportunities for a system to get unbalanced are encouraged by a lack of recourse. Being fair is unachievable but yet is crucial as a goal, or a principle. Professionals use principles and resort to parsing words rarely. When parsing is used to justify government something is probably wrong.

Our government has resorted to "advocates" especially in support of minorities. The concept of an ombudsman was supposed to help contractors with a voice however in many cases, and in my specific agency, the ombudsman is the "policy" chief as well as the Competition Advocate and the head of the Procurement Guidance group. This is a structure that invites imbalances.

In one case the individual with multiple hats could be a tyrant, or in our case a wimp. The effect is the same, checks and balances have degraded, appeals are dismissed and avoided and the identities of complainers divulged.

In the early days of CICA, the advocate was at odds with the contracting community and had exposure power. Now almost all "advocates" are inside the organizations that have, and may abuse power.

By Vern Edwards on Wednesday, March 29, 2000 - 03:02 pm:

John:

What about complaints to the task order ombudsman? No good?

By John Ford on Wednesday, March 29, 2000 - 02:16 pm:

Ramon, you have captured my concern with the procedures surrounding the issuance of task/delivery orders under MACs. When Congress created this system, it seems it was relying on the hope that everyone in the process would act fairly and in accordance with the requirments of the new process. Unfortunately, that has not happened. The DoD IG has identified several abuses in regard to providing all contractors a fair opportunity for award under these contracts. However, the reaction is for OSD to send out messages reminding contracting personnel of the requirements of the system. Since most of the faults identified by the IG came from documentation or the lack of it in contract files, smart contracting officers will learn how to achieve the same result they have now simply by creating paper to justify their actions. This would satisfy most of the objections raised by the IG, but would not remedy the actual non-compliance.
This feeds back into Eric's last observation regarding contracting officers or other government personnel directing orders to favored contractors or away from disfavored contractors. When you are dealing with a bad apple on the government side, the way you become a favored contractor is by giving into the demands of these petty tyrants. The way you become a disfavored contractor is to insist on doing things the correct way instead of their way. This heresy is corrected by harassment, intimidation or threats of no future work and a bad performance rating.
An example of what I am characterizing as abusive practices is a COR demanding that all vouchers be submitted to him/her for review before being submitted to DCAA. In addition, the COR demands voluminous backup data that is not required by the contract or DCAA. Further, it is not the same data every time so that the contractor can anticipate what the COR will demand. There is no time frame within which the COR has to complete their self imposed review of the vouchers, thus slowing down payments to the contractor and increasing the contractor's administrative cost. This practice is prohibited by agency regulations and policy statements. However, the contractor has no remedy other than talking to the contracting officer who is not interested. If the contractor is too vociferous, the contractor is not a team player deserving of more orders. With no effective review of a decision not to award an order to a contractor, the contractor has little choice but to comply with these unnecessary and unauthorized demands.

By Eric Ottinger on Tuesday, March 28, 2000 - 03:17 pm:

Vern,

I would infer that we are either talking about Task Orders directed to favored incumbents or improper directed subcontracts.

I would agree with Joel that although a scope protest is possible, most contractors would be afraid to antagonize the customer.

Eric

By Stan Livingstone on Tuesday, March 28, 2000 - 01:56 pm:

Practically speaking, a claim or protest will be very rare. To start with, a company must have done lots of things right just to receive the contract award. To get to a protest or submitting a claim, things must get real sour fast. Most contractors wouldn't resort to this kind of action knowing the people they offend and accuse of wrong-doing and foul play are generally the same ones to make the task order selection decisions. More importantly, most contractors try to mend problem situations by open communications with their government customers before thing get too far astray. Lastly, there's the appearnce that the company can't get along with their customers. The stigma of negative past performance has a long lasting implication.

My bet is resorting to claims or even protests is something the majority of companies avoid. When things start to go bad, a company will try to make things well. If that doesn't work, they cut their losses. It's fun to speculate on recourses available, but I don't think we'll ever see much happen in practice. ..Just my 2 cents

By Vern Edwards on Tuesday, March 28, 2000 - 01:43 pm:

To all:

I am still not entirely clear about what kind of bad behavior we're talking about.

Luigi started out with a vague complaint that appeared to have something to do with subcontracting. John has been talking about abuses associated with multiple award IDIQ contracts.

We really need to be clear about the nature of the problem(s).

By Ramon Jackson on Tuesday, March 28, 2000 - 11:52 am:

A question. Is there a new systematic weakness that encourages or allows the types of behavior mentioned here as well as some others that have been discussed?

Abuses, lousy performance and even outright fraud will be with us as long as people are dealing with money, egos, and ignorance. Some systems act to counter the tendency others turn a blind eye or even encourage the problems. Are there new practices that have been particularly problematic here? The task order area seems to be one -- true? Others?

This board is not the place to handle specific current cases, but systematic problems seem most appropriate to the idea of reform.

By John Ford on Monday, March 27, 2000 - 11:00 am:

Joel and Vern, if you look at my last post, you will see that I mentioned a CDA claim as a possiblity. However, this appears to be an illusory remedy. As I mentioned earlier, what are the contractor's damages for breach of contract in this case? They are not lost profits which is the traditional remedy for a breach. The contractor may not have any B&P if it was not asked to submit a proposal (which is permitted under the FAR). Moreover, even if this is the approprite remedy, it may well cost the contractor much more to pursue this recovery than the recovery itself. Unless the contractor is eligible for Equal Access to Justice attorney fees, the litigation costs are not going to be recovered. Therefore, in most cases there is no effective remedy for the contractor. Without sufficient oversight over abusive KOs, they can continue there improper actions for some time. This is the key. Without a system to ensure proper accountability, the bad apples will be able to abuse the system that was intended to benefit everyone.

By Vern Edwards on Friday, March 24, 2000 - 06:22 pm:

Joel:

I agree with your analysis. Failure to provide a task order contractor with a fair opportunity to be considered would be a breach of contract. The contractor would be entitled to damages if it could establish entitlement, causation, and quantum. The trick would be establishing entitlement. The contractor would have to show that the government, by act or omission, failed to give it a fair opportunity. Could be tough, but not impossible.

I have been waiting to see if someone will file such a claim. To the best of my knowledge, no one has to date. I suppose that the relationship would have to have really gone south before a contractor would take that step.

By Joel Hoffman on Friday, March 24, 2000 - 04:24 pm:

John appears to be correct, concerning limitations on protests of award of task orders on a MATOC.

Then, I submit that an unsuccessful offeror on a competitive task order may assert its rights under the Disputes Clause of the contract for issues arising under performance of the contract by the parties. If it feels that the Government abused the MATOC award procedures, that is an issue arising under the contract.

This approach may or may not be successful or in its best interests when dealing with an abusive KO or contract administrator. But it certainly is an available remedy...... Happy Sails! Joel

By Eric Ottinger on Thursday, March 23, 2000 - 12:32 pm:

John,

Yes. But I think Joel was thinking about a scope issue.

Eric

By John Ford on Thursday, March 23, 2000 - 10:39 am:

Joel, the right to protest an award under a multiple award IDIQ contract is limited to a protest that the order increased the scope, period or maximum value of the contract. Protests on other grounds are specifically excluded by statute and FAR 16.505(a)(7). There are several instances where the GAO has upheld this provision by dismissing protests challenging awards for other reasons because the GAO lacked jurisdiction to hear the protest.

Whoa, Luigi! I never "denied" there are abuses within the Government. I said I was intereted in your problem. When I said that, you had not provided any coherent detail to your complaint.

I do agree with the others that this isn't the appropriate forum to provide detailed advice regarding a specific, serious problem. I have resolved many, very complex Requests for Equitable Adjustment's and formal claims over the years. You can't do justice from "snippets" of facts or opinions surrounding a case. All facts and circumstances must be analyzed, first.

Correct me if I'm wrong but I believe the GAO Protest forum is available for improper awards of competitive task orders under a MATOC (multiple award task order contract. I wouldn't necessarily disagree that the "winner" of a protest might be the "loser" but it will definitely get the Government's attention and force them to be more careful...... Happy Sails! Joel

By John Ford on Wednesday, March 22, 2000 - 03:21 pm:

Eric, I appreciate your comments. As Vern stated and I know from experience, there are jerks and bad apples on both sides of the street. I probably did not articulate very clearly one of my major concerns. That is the lack of a remedy for a contractor who has been abused or intimidated in a multiple award IDIQ environment. Because awards under such contracts cannot be protested and the remedy for a breach of contract for failure to receive a fair opportunity to compete is illusory, these contractors have little choice but to knuckle under to the abuser when the threat is no or reduced future work. While this system has streamlined the award process, it has created other problems that need to be addressed to ensure proper accountability of the government personnel who are operating the system. As it is, there is little that even a "smart lawyer" can do within this environment.

By Eric Ottinger on Wednesday, March 22, 2000 - 10:26 am:

Luigi,

We criticize the Government frequently. Issues that might involve criminal or administrative penalties for specific persons don’t belong on the Water Cooler for all of the reasons which Vern has very ably enumerated.

Eric

Eric,

I appreciate your comments and conclude that this forum is not a place to ask questions which can be construed as critical of government (60 Minutes). I am pursuing both legislative and legal avenues as suggested, and was doing so before this contact. I have been inadvertently testing the mood of the contracting environment, although that was not my motive, I was simply looking for information.

The mood is clearly a denial, a clear avoidance of any unpleasantness, a union and clique based mentality which I had not expected. I expected a professional response based on government training I received defining "professional". Professionals are dedicated to high goals and public service, and don't shrink from problems. I am a Federal retiree having served "honorably", at least I hope it was honorable. I left government reluctantly, not a line of work, but a profession.

Leaving a "line of work" is simply putting your head in the sand. Would you suggest that residents of a bad neighborhood leave or fight some problem? It is precisely the point that in big dollar issues and pivotal ones that the "profession" is needed, since legal rules are often inadequate, can be parsed and overly limited by legal scholars. Professionals do not need to parse, they have underlying principles.

The "line of work" in supporting our Nation is a noble one that needs noble people, not those who deny systemic problems, who avoid criticism of their profession. I would suggest that knowing when to "duck" is ultimately a selfish and self centered response to abuses.

When groups come to grief, like the Association of Old Crows, dirtied by passing procurement sensitive material, it was called a scandal. When the media "expose" $500 hammers they often completely oversimplify a complex situation, and come to a sensational conclusion, wrong but sensational. When the GAO takes a small sample and extrapolates inappropriately to the entire Federal Budget they defy logic. These are unprofessional acts by so called professionals. Professions self police and don't self delude.

Bye.

By Eric Ottinger on Tuesday, March 21, 2000 - 07:53 pm:

This is sort of an oblique response to a couple of recent postings.

Let me put this as gently as I can--

The “Open Forum” (AKA “Water Cooler) isn’t “60 Minutes.” This is not a good place to air your organization’s dirty linen.

A visit to good legal counsel can offer discretion, objectivity, attention to all of the facts on both sides and practical advice. This Open Forum can’t really provide any of these capabilities. We aren’t going to hear both sides and we won’t have all of the facts.

Not everything that is stupid, wasteful or inappropriate rises to the level where the contracting person can do something about it. Knowing which fights to pick and knowing when to duck is part of the job.

I am not surprised that things get bent out of shape when higher management is asked to change the world and do it in six months. And there is going to be some hardball, on both sides and at several levels, when large egos and large sums of money are involved. If this is surprising to you, I would suggest that you need to improve your general education (starting with the Book of Ecclesiastics), read the newspapers more and (probably) look for a more congenial line of work.

Vern and John have made some excellent comments with which I generally concur. I think the most cogent is the comment that this kind of issue should be handled by a lawyer who specializes in this area.

For whatever, it is worth, I have encountered only a few certifiable sleazes over the years. Several of them have come to grief in ways that were emotionally satisfying or at least colorful. Sleazy people and sleazy organizations often find ways to self-destruct. It doesn’t always happen, but it is fun to watch when it does. This is not to say that I enjoyed the encounters.

Eric