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Wednesday, January 15, 2014

We have to fix IT; we have no choice

I've previously mentioned that Information Technology is a problem child. But it is our problem child, and like our other children, it is our future. We have no choice; we have to fix IT. 

We have reared IT to be our gate keeper for all of our information and communication. Our future is presently reliant on a problem child that is outgrowing its clothes before we have the old ones paid off; growing so fast we don't even know what size to buy next. We have made it too big for its britches; we feed it, we are its enablers. We have allowed if not conscientiously designed IT to be a panacea, mission critical to almost every small aspect of our lives, let alone government contracting.

Tinkering with the procurement system will never work until we understand better what this child's own goals are. IT has it own dreams -- problems. The child needs more help than the nurturing procurement system can muster. I have taught my children that they can be anything they want, but the cannot be everything they want. IT wants to be everything, and we have to learn to reign IT in.

The discussions have begun, and in some places is well under way. Many more of us will have to know much much more about the problems before we can hope to find a solution. We cannot leave it to the problem child to determine our destiny.

Can IT procurement be saved?
Can the tens of thousands of people involved in government procurement — employees and contractors alike — absorb any life lessons for navigating the often bumpy road of large government IT projects? High-profile government procurement projects sometimes take a wrong turn or crash spectacularly into technological or logistical ditches. Sometimes they can be resurrected or salvaged, and sometimes they are scrapped. The smoldering remains can be attributed to the myriad miscues, oversights or missteps in a hugely complex system.

In other words, bungled launches didn't start with HealthCare.gov, and the Obama administration's Department of Health and Human Services is hardly alone in its stumbling. In 2006, the Department of Homeland Security picked Boeing to oversee its $1.9 billion program dubbed SBInet, which sought to revolutionize border security by integrating infrastructure, technology and border security agents. Unfortunately, it didn't work.

Complex federal procurement rules can contribute to the failure of advanced IT systems such as HealthCare.gov or SBInet, but Amey contends that even a wholesale overhaul of those rules probably wouldn't help much. Others say spending cuts and budget uncertainty have sped up an erosion of the federal procurement workforce. Still others blame rules they say place a crippling emphasis on getting the lowest price at the expense of what might work best.

Ultimately, said Roger Waldron, president of the Coalition for Government Procurement, successful federal contracts happen when the government understands what it wants and what it is asking of bidders, and bidders understand how to work with the government. It's not just about getting to yes — it's about getting to yes, I know exactly what I want, and here's how I want you to give it to me.

Testing, predesign decisions and planning are essential to successfully integrating legacy systems, said Jay Shah, executive vice president of Octo Consulting Group. One key, he said, is not to rush the procurement process. Budget pressures are forcing agencies with legacy systems to "think incrementally and not transformationally" when it comes to implementing new systems, he added, but agile development is not a silver bullet.

"While most government agencies love the idea of agile, the [federal] procurement process and capital planning [are] counter to what agile espouses," Shah said. Rep. Anna Eshoo (D-Calif.), who represents a swath of Silicon Valley, wants to make the system more open and accessible. "My sense is that there are inside-the-Beltway contractors that know the current system very, very well, and they are the ones that are awarded the contracts," she said.
5 areas to start IT procurement reform
“There’s a beauty and a tragedy at this critical inflection point, in regard to people and technology,” said Stan Soloway, the president of the Professional Services Council. “We have a once in a multigenerational opportunity to do this.” Few envision such a complex system will change with one sweeping gesture.

Here are five broad areas of reform experts suggest as a place to start:

1. Put someone in charge
Numerous agencies weigh in on technology procurement, but no one carefully monitors the entire process. “Part of the problem with procurement is no one is taking a holistic view with the entire supply chain,” said Clay Johnson, a former presidential innovation fellow and current chief executive officer of the Department of Better Technology. [We need an IT czar? One?]

2. Prioritize people
The federal procurement process depends on contracting officers. “The government continues to struggle mightily to attract IT talent,” PSC’s Soloway said. [Note this is an argument for bringing more IT decision making in house via people who are trained to understand the problem well enough to fashion a solution, rather than outsourcing it to purveyors of legacy based systems.]

3. [Omitted by the administrator of this blog, revealing a lack of knowledge of principles of procurement (IT maybe, procurement no), and beating an old horse rather than seizing a once in a mulitgenerational opportunity as promised.]

4. Don’t fear the woodshed
Any real reform to federal IT, experts warn, must allow for ingenuity. “These guys are scared to death because if they make a wrong decision, they are going to get taken to the woodshed,” Safavian said. “Leaders need to become better risk absorbers,” Soloway said. “You can’t have a system where everyone thinks they are going to get hammered.” [Problem children need love and discipline.]

5. Throw away the rules
A complex tangle of regulations sometimes upends its very purpose. [And here I thought they were going to mean, start with new code and open architecture.]
Have ideas on government procurement?
The Department of Finance would like your feedback to help improve communication between government and industry during the procurement process.
Lessons for Procurement from IT Vendor Management: Audits, Inputs, and Competitive Spirit
Starting with audits, Erickson-Harris suggests that vendor management organizations “incorporate the right to conduct audits to gain a first-hand look at operations periodically” in part because “showing up tells the service provider that you take the relationship seriously.” [And want to be taken to lunch.] These audit rights should include contract penalty clauses that have teeth. [Problem children respond well to standing over them with a stick and a dog with big teeth. And auditors know all about the IT you're struggling with.]

Erickson-Harris suggests: “Asking vendors what measures they can put in place to ensure quality." [We hired these guys to do it because we didn't know how. We didn't even know how to spec the contract. And we expect the contractor to tell us how to do it better in a completely disinterested way that's going to save us money? How would be know?]

Finally, keep up the competitive spirit. To wit, “keep the vendor on its toes and the situation competitive". I might suggest tempering this recommendation, after all, you don’t want to find yourself using the threat of leverage or competition with a critical supplier when the vendor knows that you don’t really have other options. [On second thought, just ask him what we need and be thankful we have him on payroll.]
Government Tech Problems: Blame The People Or The Process? [Or something else, maybe, like the underlying assumptions of need?]
What should be done about government's tech issues depends on what you see as the source of the problem. And that's where there's disagreement among the "People Who Think About Procurement More Than You And Me."

Stan Soloway heads the Professional Services Council, which represents federal contractors who are hired to build these projects. He told The Times he sees the problem as the "punishing and punitive" environment of government. "It's the human capital, the way the government buys services, the way the government determines its own requirements, the lack of collaboration within government, the lack of collaboration between the government and the private sector, the outdated systems within government," Soloway told the newspaper.

Clay Johnson, who has been fighting for procurement reform since before it became cool, takes issue with that argument. "Bad clients exist everywhere. Blaming the client is the oldest trick in the book. It's toxic." Instead, he sees the issue as being an environment that doesn't favor competition, which boosts incumbents who do mediocre or even poor work.

Determining what's at root will drive future policy decisions. President Obama has said again and again that government needs to improve the way it procures and uses technology. But so far, the White House hasn't put out any specific plans to tackle the issue.

On the legislative front, the bipartisan bill to address part of the problem — the Federal Information Technology Acquisition Reform Act (FITARA) — passed the House last June but got axed from the Senate version. That bill did not centrally take on the competitive environment, but it would have given more power to technology officers inside government so they could better project-manage the work of contractors and developers.
Obama Calls for IT Procurement Reform
Obama said, “I personally have been frustrated with the problems around the website on health care. And it’s inexcusable.”

[He then offered excuses:] The president said part of the problem was simply managing an operation as large and complex as the federal government. “What I want to just remind people of is that this government is an enormous enterprise,” he said, “and so even as sometimes we see ourselves getting stymied at the congressional level, at the administrative level, in the work that we’re doing, all kinds of changes are happening.”
CGI's Contract to Help Run Health Site Won't Be Renewed
CGI Group Inc. said federal officials won't renew its contract to oversee key parts of HealthCare.gov, the online insurance marketplace that launched with major defects on Oct. 1. The Centers for Medicare and Medicaid Services said in a statement that it chose Accenture become the lead contractor. People close to the project said they were "blindsided" when they learned of the decision Friday.
TechAmerica: Congress key to effective procurement reform
The problems afflicting federal IT acquisition system are not incurable, according to TechAmerica's newly installed Senior Vice President for Public Sector Mike Hettinger, but they could use a strong dose of legislative medicine. TechAmerica is working to foster congressional efforts to change acquisition rules beyond simple knee-jerk reactions to those particular failures. Hettinger said he is looking to educate lawmakers on the intricacies of federal IT acquisition practices and facilitate a dialogue across industry, legislative and executive branch lines. He also said the intricate nature of federal IT acquisition means only a handful of lawmakers have a full grasp of the process.  [But they likely have a better grasp of the IT acquisition process than of the IT process itself. which is a more easily exploitable weakness.]

Proposals to create a new agency that would manage large IT projects and boost the federal government's ability to hire IT specialists from private industry are steps in the right direction, he said. [Yes, revolving doors are good, for someone.]  But for effective reform, Congress must be involved, Hettinger said.

And he knows that legislative territory.

TechAmerica named Hettinger vice president of its public sector group in mid-December as the organization began a legal battle with rival Information Technology Industry after several former TechAmerica public sector executives, including former Senior Vice President for Global Public Sector Trey Hodgkins, left abruptly for jobs at ITI. TechAmerica alleges some of those former employees stole valuable membership information.

Hettinger said his new employer assured him the organization was committed to its public sector operations and that he had no reservations about taking on the new job. "The reason I'm here is because this is the premier association. TechAmerica is doing things no one else can." He also noted that TechAmerica is in the process of hiring three additional public policy group personnel in the coming weeks who will work with him. [See there? The key to problem is with Congress, not the IT industry, and all it needs is a good lobbyist or three to set things straight. Yea!]





Resource: George Washington Universtiy Law Library list of procurement (and other) blogs

The George Washington University Law Library keeps a number of lists of legal blogs (blawgs) covering a variety of topics, including Government Contracts blogs. You may find this to be a helpful resource. The link to this resource is here.

George Washington University essentially created and leads the field of academic government contracting education. As it says of its Government Procurement Law Program,
"Established in 1960, the Government Procurement Law Program is the only one of its kind in the United States. Established by Professors Emeritus Ralph C. Nash, Jr. and John Cibinic, Jr., the program offers unparalleled faculty resources, course offerings, and professional development opportunities. The program's full-time faculty –Professors Joshua Schwartz, Steven Schooner, Christopher Yukins, and William Kovacic – offer students years of experience in the federal government and the private sector. In addition to its classes, the McKenna Long & Aldridge "Gilbert A. Cuneo" Government Contracts Moot Court Competition, and the Public Contract Law Journal, the Government Procurement Law Program also offers colloquia and symposia addressing evolving issues and presenting esteemed speakers from academia, government, and private practice."

It offers an LL.M. in Government Procurement Law, an LL.M. in Government Procurement and Environmental Law as well as an M.S. in Government Contracts (but see this blogger's disenchantment with the M.S. program, even though his blog site is also mention in the list of Government Contracts blogs).

Procurement: What's prevailing wage labor law got to do with it?

The California case reported in this post concerns the debarment of a state government contractor arising from violation of state prevailing wage laws. It is typical that such laws exist in states, requiring contractors under state procurement contracts to pay prevailing wage and benefits as determined by the law. They are similar in scope, but do differ in detail. 

Remember, I cut and paste excertps, sometimes rearrange or paraphrase, citations are generally left out, etc. This is not a legal citation but only an educational general procurement blog post. Read the original authority if you need to be precise in your understanding.

Ogundare v. Dep't of Indus. Relations, 214 Cal.App.4th 822, 154 Cal.Rptr.3d 369 (Cal. App., 2013)
Pacific was a general engineering construction company based in Bakersfield, California, that performed concrete (flat) and underground (water, soil and sewer) construction work. Ninety-nine percent of the projects undertaken by Pacific were public works projects. Pacific was owned and managed by Ayodeji A. Ogundare (Ogundare), who was a licensed contractor.

In 2007 and 2008, DLSE [the State of California, Department of Industrial Relations, Division of Labor Standards Enforcement] conducted investigations regarding public works projects on which Pacific was a subcontractor, including a project in Delano for sewer and sidewalk construction (the Delano project), a project in Madera to build a youth center (the Madera project), and a project in Exeter to construct a school building (the Exeter project). As a result of these investigations, DLSE notified Pacific of apparent violations of laws relating to public contracts and issued civil wage and penalty assessments against Pacific. Additionally, DLSE initiated the instant debarment proceedings against Pacific based on particular allegations that Pacific violated prevailing wage laws in a manner that was allegedly willful and with intent to defraud.

[After hearing} the DLSE statement of decision stated that Pacific committed willful violations with intent to defraud, and a one-year debarment of Pacific was ordered by DLSE therein. The statement of decision stated the following principal conclusions: ―[Pacific] willfully‘ and with intent to defraud‘ violated the public works laws in not paying prevailing wages to one worker, Laborer Miguel Ibarra and [in not paying] prevailing overtime to two workers, Laborers Javier Perez (on the Madera project) and Juan Ramirez (on the Exeter project). Although the DLSE argued that [Pacific] had a pattern and practice of failing to pay prevailing wages and prevailing overtime on the three projects at issue as well as on previous projects ... the evidence simply was not presented at this hearing to establish this was the case.

Further, as to the alleged inadequacy of Pacific's payroll records, the statement of decision stated that Pacific willfully violated provisions of section 1776 by submitting certified payroll records to DLSE, prime contractors, awarding bodies and others, that were ―not accurate. However, Pacific's failures to provide adequate payroll records, although willful, were not sufficient in themselves to show intent to defraud.

On the specific issue of intent to defraud, the statement of decision elaborated: ―[Miguel] Ibarra's testimony that he was always paid $15.00 per hour on the Delano project and worked 61 hours during the week ending August 4, 2007 is credible especially since he provided a copy of a paycheck corroborating his testimony. [Pacific] knew that payment to this individual was not in compliance with the public works laws as evidenced by the fact that the check shows payment at $15.00 per hour for 61 hours worked yet [Pacific] submitted to the DLSE certified payroll records listing the correct prevailing wage rate that should have been paid and listing only 25 hours worked for the week ending August 4, 2007. In this regard, [Pacific] willfully‘ violated the public works laws. [Pacific] also violated the public works laws with intent to defraud‘ evidenced by the fact that he put the required amount of payment on the certified payroll records he signed under penalty of perjury knowing that he paid a much lower rate. Additionally, the statement of decision indicated that Pacific's intent to defraud was further corroborated by the failure to pay overtime prevailing wages to Javier Perez and Juan Ramirez, since it appeared that Pacific ―was attempting to split the total hours worked by Perez and Ramirez, so as not to have to pay or report prevailing overtime that was in fact worked by both workers. As a consequence of the violations and of the finding of intent to defraud, the statement of decision ordered that Pacific ―shall be ineligible to, and shall not, bid on or be awarded a contract for a public works project, and shall not perform work as a subcontractor on a public work ... for a period of one (1) year....

[Pacific appealed to court, and the trial court ruled in its favor, overturning the DLSE decision. DLSE then appealed to the Appellate Court, which issued this decision. The case turned on technical legal issues concerning the standard of review of an appellate court and the requirements of the form in which the matter was appealed, here a writ of mandate. This may differ in other jurisdictions.]

Section 1094.5 of the Code of Civil Procedure governs judicial review by administrative mandate of any final decision or order rendered by an administrative agency. A trial court's review of an adjudicatory administrative decision is subject to two possible standards of review depending upon the nature of the right involved. If the administrative decision substantially affects a fundamental vested right, the trial court must exercise its independent judgment on the evidence. The trial court must not only examine the administrative record for errors of law, but must also conduct an independent review of the entire record to determine whether the weight of the evidence supports the administrative findings. If, on the other hand, the administrative decision neither involves nor substantially affects a fundamental vested right, the trial court's review is limited to determining whether the administrative findings are supported by substantial evidence.

Looking to the character and quality of the right involved, we conclude that Pacific's one-year debarment from being able to bid or work on public projects did not implicate a fundamental vested right. Pacific was not prevented from bidding or working on all construction projects, but only from certain kinds of work (i.e., public projects). Hence, it appears that the interest affected was purely economic in this case. It follows that the trial court applied the wrong standard. It should have reviewed DLSE's administrative decision under the substantial evidence test rather than under the independent judgment standard of review.

In order to impose debarment in the present case, it was necessary for DLSE to establish intent to defraud under section 1777.1. That statute provides, in relevant part, as follows: ―Whenever a contractor or subcontractor performing a public works project pursuant to this chapter is found by the Labor Commissioner to be in violation of this chapter with intent to defraud, ... the contractor or subcontractor ... is ineligible for a period of not less than one year or more than three years. "'Intent to defraud‘ means the intent to deceive another person or entity, as defined in this article, and to induce such other person or entity, in reliance upon such deception, to assume, create, transfer, alter or terminate a right, obligation or power with reference to property of any kind."

DLSE's position is that intent to defraud was established by the evidence, in particular Ibarra's testimony that he was paid $15 per hour as confirmed by the paycheck for the week of August 4, 2007, and the certified payroll records for that same week showing that Ibarra was paid prevailing wages of $36.10 per hour and only worked 25 hours that week. No satisfactory explanation was ever provided by Pacific for this glaring discrepancy between Ibarra's actual paycheck reflecting $15 per hour and the contrary representations by Pacific to DSLE. A reasonable conclusion from this evidence is that Pacific violated the prevailing wage law with intent to defraud. We agree with DLSE.
This case is interesting from a Guamanian's perspective because it clearly shows that debarment authority arising from a labor law requirement is vested in the department of labor, which is also alone vested with power to enforce labor laws. California's labor laws therefore do not muddy it procurement laws.  On Guam, the law has confusingly split the authority, with the result that a matter such as this could easily, and does continually, fall through the cracks in the system.

Although the Guam Department of Labor has authority to enforce prevailing wage laws, it does not have the independent authority to debar or suspend a government contractor for violation of the law. The "government of Guam may" terminate the contractor's right to proceed with the part of the work to which the violation is concerned (5 GCA § 55102), but there being no obligation to do so, and often no means by which a contracting officer would discover the violation, there is no effective enforcement of this provision. 

Moreover, "the Treasurer is further authorized and is directed to distribute a list to all departments of the government of Guam giving the names of persons or firms whom he has found to have disregarded their obligations to employees" and "No contract shall be awarded to the persons or firms appearing on this list, or to any firm, corporation, partnership, or association in which such persons or firms have an interest, until three years have elapsed...." (5 GCA § 55103(a)) But the Treasurer is not likely to ever make such a finding; that is a Department of Labor obligation. No such list is likely to ever be produced because it requires too much coordination between agencies to enforce.

Guam Procurement Law contemplates that action may be taken by an agency to suspend or debar a contractor, and gives the Public Auditor administrative review of such an action. (5 GCA § 5426.) Thus, this power does not directly reside within the authority of the Department of Labor. The procurement law power to suspend and debar lists a few justifiable reasons to suspend or debar, but none specifically based on a violation of the prevailing wage law. The closest enumerated cause is "any other cause [an agency] determines to be so serious and compelling as to affect responsibility as a territorial contractor" (§ 5426(b)(5)).

Bill 224-32 is currently pending in the Guam Legislature, and includes an amendment to the causes for suspension or debarment based on prevailing wage law violations; one based "upon a petition of the Department of Labor, failure [of a contractor] to pay employees engaged on the contract in violation of Wage Determination law or contract conditions". There is no requirement that such failure be based on "intent to defraud" as found in the California statute and case reported above. 

Time will tell, if this provision is enacted, whether the Department of Labor will seek to enforce this requirement through the available auspices of the procurement law.

US SENATE REPORT

In the federal arena, a United States Senate Health, Education, Labor, and Pensions Committee recently issued a Majority Staff Report,  "Acting Responsibly? Federal Contractors Frequently Put Workers' Lives and Livelihoods At Risk".

It declares the mandate of government contract law in summary form:
Federal law is intended to prevent taxpayer dollars from increasing the profits of companies with a record of violating federal law in two ways: by requiring contracting officers to assess a prospective contractor’s responsible compliance with federal law prior to awarding a contract, and by allowing agencies to suspend or debar contractors for certain behavior, including violations of federal law, in order to protect the integrity of taxpayer dollars.

It frames the issue this way
The Federal Government Frequently Contracts with Companies that Violate Federal Labor Laws
The report responds that contractor responsibility is in part an issue of integrity, but labor issues do not come to the attention of contracting officers. These determinations, it says, "suffer from flaws that allow taxpayer dollars to be awarded to companies that do not abide by federal labor law." It cautions,
The fact that a company is among the recipients of one of the largest wage or safety penalties does not suggest that any particular company is not responsible or that a company should have limitations placed on its ability to obtain contracts. Rather, the record of non-compliance laid out below suggests that not enough is being done to ensure that compliance with multiple labor laws is being tracked, considered or evaluated as a part of the contracting practice. While the companies that appear below are those that publicly available enforcement data indicates have some of the worst records of compliance with labor laws, more needs to be done to evaluate the gravity, severity and repeated nature of violations to determine if a particular company is indeed a responsible actor.
On the matter of suspension and debarment, the report states:
As previously discussed, in order to best protect the public, agency officials have discretion to debar or suspend contractors under a number of circumstances, including when a contractor is convicted of or found civilly liable for a lack of business integrity or for "any other cause of so serious or compelling a nature that it affects the present responsibility of a contractor."  These provisions of the Federal Acquisition Regulation provide the Department of Labor with authority to suspend or debar a federal contractor that has a record of non-compliance with federal labor law if the Department were to find that this record of non-compliance was so severe as to demonstrate a lack of business integrity that would impact the present responsibility of the contractor.  However, while the Department suspends and debars companies using the statutory authority provided by the Service Contract Act and the Davis-Bacon Act, the Department does not appear to have debarred a company as a result of OSHA or other wage-related violations, or attempted to cross reference repeat or willful violators of multiple laws.

Additionally, the suspension and debarment process suffers from a number of more widespread problems, including the lack of standardization across the government. Agencies structure and perform their exclusion functions in very different ways, and this affects the degree to which agencies exclude contractors.  Moreover, even when a contractor is debarred or suspended, agencies are authorized to waive a contractor’s exclusion if they determine “there is a compelling reason for such an action.”  Some agencies have regulations that define what constitutes a “compelling reason” while others do not.  Further, these waivers are agency-specific and are not always communicated to other agencies.

Unfortunately, the existing suspension and debarment process is underutilized and inconsistent. At the same time, the debarment process tends to focus directly on conduct related to a specific contract rather than on the overall labor practices of federal contractors.  If Federal agencies are given more tools and encouraged to look to solutions short of debarment or suspension, they could more effectively deter companies that fail to comply with federal labor laws from future violations.
All in all, add labor law issues to the bundle of matters a contracting officer will have to consider apart from but equal to the business of acquiring the things and services the government needs to function.

Sunday, January 12, 2014

Methinks we doth not protest so much after all?

Eye of the typhoon? Calm before the storm? Too expensive? Chances of failure far exceed possibility of success? Everyone finally catching on to what it takes to bring a viable protest and how to head them off at the pass with corrective action?

Whazzup?

Analysis: What the decline in bid protests really means Jason Miller
GAO released its latest report to Congress Jan. 2 on the number of bid protests for 2013. GAO said it received 2,298 bid protests in 2013, of which 509 went all the way through the process to a decision. GAO sustained 87 total cases, or 17 percent of all bid protests. This was the first time since 2006 that the number of bid protests didn't increase year-over-year.

At the same time, agencies continue to cut the amount of money they spend on goods and services. Preliminary estimates by GAO show agencies spent about $460 billion last year—more than a 10 percent decline as compared to 2012. These latest bid protests and spending figures provide little evidence of what many believed would be the case: as agencies cut procurement spending, more vendors will protest to GAO or the Court of Federal Claims.

Dan Gordon, a former administrator in the Office of Federal Procurement Policy and a GAO procurement attorney, and now the associate dean for Government Procurement Law at The George Washington University Law School in Washington, said the real measure is the effectiveness rate and what happens to the other 900-plus protests that don't go through the entire process. Gordon said he's researching at GWU on what happens to the contractors when the agency agrees to take corrective action instead of going through the bid protest process.

"We are still working the data. There's a significant percentage where it looks like the protester did get the contract and in that sense it was very much an effective process," he said. "It's not clear to me yet whether that's 20 percent or maybe as much as 23 or 24 percent of those 940 cases last year that were dismissed because the agency took voluntary corrective action," Gordon said. "In a great majority of the cases, it looks like the agency took corrective action, GAO dismissed and then the protestor did not get the contract."

Ralph White, the managing associate general counsel for procurement law at GAO, said the effectiveness rate shows agencies and vendors have a solid understanding of the likelihood of success in a bid protest. GAO said it was effective in 43 percent of all cases, increasing by one percent for the first time since 2009. "I think it is significant because it is a percentage of all cases filed," he said. "It does tell us that in a fairly high number of cases, the government is looking at the complaints that have been raised and making a decision about whether to continue to defend against that protest or to proactively take steps to address the situation."

For the first time, GAO analyzed the most common reasons why it sustained a protest. White said in the past the agency had surmised the causes, but never looked at it analytically.

GAO found the top reasons were:

1. Failure [of the agency] to follow the solicitation evaluation criteria.
"That one is interesting to me because it seems agencies should be able to see that. It might be even higher if you thought about all the cases where agency lawyers advised their agency to take corrective action rather than defend those," White said.
2. Inadequate documentation by the agency to how it reached its conclusions.
"When I first thought about it, I was thinking about it in three separate ways. Sometimes there is inadequately documented source selection decisions; sometimes there's inadequate documentation of past performance assessment; or inadequate documentation of a technical conclusion. No matter where it's coming up, it's the same problem: not really documenting and explaining the basis for the conclusion," he said.
3. Unequal treatment of offerors.

4. Unreasonable price or cost evaluation. [See prior post on this subject.]

In a report from Lexology, the “summary of the most prevalent grounds for sustaining protests” found in the GAO report mentioned above is discussed:

GAO annual report shows protesters achieve the most success with evaluation process-related protest grounds by Richard B. Oliver, Jason A. "Jay" Carey and Luke W. Meier, of the law firm McKenna Long & Aldridge LLP
GAO’s most recent Bid Protest Annual Report to Congress, for fiscal year 2013, indicates that protesters are achieving more success by challenging process-related issues than in attacking an agency’s evaluation judgments as unreasonable. The Report also shows that GAO is receiving an increasing number of task order protests and is holding fewer hearings.
You can find all Bid Protest Annual Reports to Congress, going back to 1996, here.

Unfair and reasonable price and ranking conditions in solicitations

It is one thing to carefully tailor specifications to meet minimum needs. Another to tailor competition. And yet another to tailor out any judgment or consideration process. The following is another from Lexology.com (reg. req'd.), in association with the Association of Corporate Counsel, and its excellent coterie of contributors. It involves US federal government contracts and its laws and regulations.

This is a selection of excerpts from the article. You will need to read the whole article for context, citations, sources, etc.

Beware of protest-proof procurements by Thomas P. Barletta , Peter L. Wellington, Paul R. Hurst , Michael J. Navarre and Anthony Rapa, of the firm Steptoe & Johnson LLP
Some federal government agencies are taking extraordinary steps to try to insulate their source selection decisions from the bid protest process. Below, we discuss three examples of this phenomenon: (1) solicitations that call for awarding the contract to the highest technically rated offeror who proposes a “fair and reasonable” price; (2) solicitations that prescribe specific point scores for various technical features and call for ranking the technical merits of the proposals based solely on the total points earned; and (3) solicitations that provide for very limited, highly circumscribed cost/price evaluations.

Occasionally solicitations will provide for award to the highest technically rated offeror who has proposed a “fair and reasonable” price. Under such an approach, all proposals are subject to a threshold determination as to whether their proposed prices are “fair and reasonable.” Proposals that clear this bar are then evaluated strictly according to their respective technical merits. Price does not otherwise factor into the agency’s analysis of which proposal offers the best value to the government. The solicitation may even explicitly assert that the agency will not engage in a price/technical tradeoff analysis in evaluating proposals. An offeror who waits until after award to file a protest asserting that its price advantage outweighed the awardee’s technical advantage will likely be met with a motion to dismiss the protest as an untimely challenge to the terms of the solicitation. Therefore, potential offerors who believe that their pricing is likely to provide them with a competitive advantage should consider filing pre-award protests on the ground that this approach is contrary to fundamental principles of procurement set forth in the Federal Acquisition Regulation (FAR), statutes and case law.
[I point out here that this RFP format is specifically authorized in Guam procurement law (5 GCA §§ 5216, and 5121) for the procurement of professional services. Indeed, it is the form prescribed for the method of source selection for professional services first adopted, and later abandoned, by the ABA Model Procurement Code.]
It is well-established that source selection officials are required to meaningfully consider price in making source selection decisions. The FAR provides that "[w]hile the SSA may use reports and analyses prepared by others, the source selection decision shall represent the SSA’s independent judgment. The source selection decision shall be documented, and the documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs." See FAR § 15.308.

Furthermore, agencies are required by statute to make award “to the responsible source whose proposal is most advantageous to the United States, considering only cost or price and the other factors included in the solicitation.” See 41 U.S.C. § 3703(c) (formerly 41 U.S.C. § 253b(d)).

The Government Accountability Office (GAO) has consistently upheld these principles in requiring agencies to consider price when making best value determinations, and has sustained protests where agencies have failed to engage in price/technical tradeoff analysis.

In Cyberdata, GAO sustained a protest where a solicitation provided for downselecting quotations based on technical factors only. Offerors were to be ranked strictly based on their technical scores without regard to price, and the top twelve were to be invited to give oral presentations. Price was to be considered only when a smaller number of quotations were chosen from among the top twelve as offering the best value. GAO sustained the protest, holding that
"a best value analysis necessarily encompasses consideration of an offeror’s price or cost since, to be meaningful, a best value determination requires a weighing of the value and benefits associated with a firm's approach against their associated cost to the government. In a best value procurement, it is the function of the source selection authority to perform a tradeoff between price and non-price factors, that is, to determine whether one proposal's superiority under the non-price factor is worth a higher price. Even where, as here, price is stated to be of less importance than the non-price factors, an agency must meaningfully consider cost or price to the government in making its selection decision. Thus, before an agency can select a higher-priced proposal that has been rated technically superior to a lower-priced but acceptable one, the decision must be supported by a rational explanation of why the higher-rated proposal is, in fact, superior, and explaining why its technical superiority warrants paying a price premium."
It is also noteworthy that GAO invoked the “significant issue” exception to its timeliness rules in the Cyberdata protest, which had been filed after award, because the subject was “one of widespread interest to the procurement community.” However, there can be no assurance that GAO would invoke this rarely-used exception again in a similar situation, so it would be prudent for potential offerors to file pre-award protests when faced with solicitations that provide for award to the highest technically rated offeror with a “fair and reasonable” price.

We have also seen examples of solicitations that prescribe specific point scores for various technical features and call for ranking the technical merits of the proposals based solely on the total points earned. Under such an approach, the agency will merely confirm the presence or absence of the prescribed technical features in each proposal, add up the prescribed points for each feature found to be present, and select the proposal(s) with the highest point total(s). In some cases, the offerors may even be instructed to score themselves by submitting self-scoring worksheets. In any event, under this approach, the technical evaluation consists merely of mechanically comparing offerors’ point scores, without any judgments or analyses regarding the actual qualitative differences between the technical proposals. An offeror who waits until after award to file a protest asserting that its technical proposal is qualitatively better than other proposals regardless of their respective point scores will likely be met with a motion to dismiss the protest as an untimely challenge to the terms of the solicitation. Therefore, potential offerors who believe that their technical proposals will contain qualitative advantages not adequately captured by the point scores should consider filing pre-award protests on the ground that this approach is contrary to fundamental principles of procurement law.

In a number of post-award protests, GAO has strongly criticized technical evaluations that relied exclusively on point scores. It has consistently held that “[a]n award decision is not reasonable . . . where the agency makes its award decision based strictly on a mechanical comparison of the offerors’ total point scores.”

Procurement controversies -- Selangor State, Malaysia

Loopholes in government contracting mechanism — Sin Chew Daily
The chief contractor responsible for cleaning of government hospitals in Selangor, Radicare (M) Sdn Bhd, has apparently breached the contract regulations. The shortage of cleaners in Klang, Kajang, Selayang and Banting Hospitals has resulted in poor hospital hygiene conditions. Two operating theaters in Kajang Hospital have to be temporarily closed while non-urgent surgeries have to be postponed due to difficulty in maintaining the hygiene at these operating theatres. It is shocking to find that several hospitals are facing the same problem at the same time.

The Health Ministry must take stern action against Radicare to warn other contractors. In addition, since Radicare was appointed and contracted by the Health Ministry, the ministry should also be blamed for the incapability of Radicare to perform the contract, affecting the normal operation of hospitals. Also, the Selangor state government should also make a review for its lax oversight, as maintaining healthcare quality and ensuring the safety and hygiene of patients and the public is a shared responsible of the Health Ministry and state government.

The problem originated from the drawbacks in the government’s contract bidding mechanism. For instance, contractors are appointed without going through the process of bidding; contract conditions do not adequately protect the interests of the government; and the government’s inability to assess and compare the qualities of contractors. Contractors’ poor quality and lack of integrity would not only drag the administrative progress of government agencies, but also harm the people’s interests.

On the other hand, after signing a contract with the government, the appointed contractor is allowed to hire its own sub-contractors to handle the project or job. Such a practice makes it easy to have poor supervision and loopholes. The Health Ministry has appointed three companies to take care of the non-clinical support services of healthcare establishments in the country tasked with the responsibility of maintaining the cleanliness of state government hospitals. Radicare, one of the contractors, has actually hired incapable sub-contractor for the job and thus, led to the cleaner shortage problem.

Taking it as a lesson, the government will need to draw a transparent and more professional contract bidding mechanism to ensure that all contractors are good in quality, as well as integrity. The public’s demand for transparency in government operations, including the request of open tender for government contracts, has increased, and some "Ali Baba" contractors who gained government contracts through relations instead of open tender will only undermine the government’s credibility.

Procurement controversies - Kenya Airport

With the still unresolved protests involving the concessions for the Guam International Airport pending for the last several months, this is another case of what appears to be standard fare in the world of airport concession bids and protests.

Kenya Airports Authority annuls Nuance award, calls for fresh tender
The master concession had been designed to cover duty free retail, food & beverage and a variety of communication services. As a result Kenya Airports Authority’s evaluation committee recommended that Nuance be awarded the master concession with a minimum annual guarantee (MAG) of US$120,000 and a concession rate of 12.5% on sales. The contract was subsequently awarded.

The tender closed on 25 October, attracting ten enterprises: World Duty Free Group (of Spain); Silver Duty Free; Maritime & Mercantile International; Flemingo International; SIA Kenya Holdings; Belgian Sky Shops; Tiger’s Eye Retail (Tourvest); Dufry. The tender process was the subject of a major protest by four of the other bidders, namely Unifree Duty Free, Suzan General Trading (joint venture partner with World Duty Free Group of Spain – not the former incumbent of the same name), Flemingo International and Dufry International.

As we reported, based on the concession fee percentage committed, Belgian Sky Shops (not one of the applicants for a review of the tender, though it did align with the protesting parties through legal counsel and attended the Board hearing) was the highest bidder, offering 33% of sales, just ahead of Flemingo with 32.48% and Gebr Heinemann-controlled Unifree’s 32.20%. Nuance offered just 12% of sales.

The Republic of Kenya Public Procurement Administrative Review Board has annulled Kenya Airports Authority’s award of a duty free retail master concession at Nairobi Jomo Kenyatta International Airport to The Nuance Group and ordered a fresh tender.

At the hearing in early December the Public Procurement Administrative Review Board was critical of the process, noting with alarm that only one of the ten bidders had met the preliminary mandatory requirements of the tender document. “What this means is that either the tender document was set out in such a way as it was not clear to most of the bidders, or extrinsic evaluation criteria not provided for in the tender document was introduced at evaluation stage,” it said.

Damningly, it concluded: “The Board notes that this indeed was a missed opportunity by the people of Kenya when a public entity chose to accept a bid with a concession of 12.5% when it was possible to get a higher concession of 33% and above.”





Friday, January 3, 2014

Of performances past

Evaluating performance is a delicate task; so much nuance and shades of grey. The choices are not the easy ones: good, bad or ugly. More like superlatives: good, better, best.

The following GAO decision illustrates the care that must be undertaken to conduct past performance evaluation, and the limited scope a bidder has to complain.

It also illustrates how our federal government works right up to the New Year.

Matter of: IJC Corporation, B-408950, December 31, 2013
IJC Corporation (IJC), a service-disabled veteran-owned small business concern in Windham, New Hampshire, protests the Department of Agriculture’s award of a contract to Drainpipe Plumbing and Solar, of Pahoa, Hawaii, under request for proposals (RFP) No. AG-9AD6-S-13-0004, for plumbing work at Laupahoehoe Science and Education Center, Hilo, Hawaii. The protester asserts that the agency improperly evaluated IJC’s past performance.

The contract requirement includes the excavation and backfill of approximately 1,950 linear feet of trench; the supply and installation of various water lines, two water catchment tanks, and sewer lines; the preparation and coordination for various electrical conduits, as needed; and the complete pressure testing of all water lines prior to backfill. The RFP provided for the award of a fixed-price contract to the offeror whose proposal represents the best value to the government, considering price and past performance, with price being more important.

Past performance references were to be evaluated for recency, relevancy, and quality.

The possible relevancy ratings were relevant, somewhat relevant, and not relevant.

Possible quality ratings were exceptional, very good, satisfactory, marginal, unsatisfactory, and not applicable.

To determine the quality of contract performance, the RFP provided that the government would contact some of each offeror’s customers on past similar projects to ask whether: the offeror was capable, efficient, and effective; the offeror’s performance conformed to the terms and conditions of its contract; the offeror finished within the contract time; the offeror was reasonable and cooperative during performance; and the offeror was committed to customer satisfaction. Id. Based on these ratings, the agency would develop an overall confidence assessment--reflecting the agency’s determination of whether the offeror could perform as proposed and described in the statement of work (SOW)--of substantial, satisfactory, or marginal confidence.

The protestor's past performances references were indicated by this table:


In contrast, the agency evaluated two of Drainpipe’s cited past performance references for plumbing contracts as recent, relevant, and satisfactorily completed. Id. In addition, the contracting officer had “direct personal knowledge” of two prior Drainpipe contracts, at least one of which was for plumbing work, and both of which were “successfully completed on time.”

IJC was given an overall confidence assessment of marginal, while Drainpipe received an overall assessment of substantial.

IJC’s proposed price was $138,353, slightly lower than Drainpipe’s proposed price of $147,937. The contracting officer determined that Drainpipe’s higher past performance confidence assessment warranted that firm’s price premium, and award was made to Drainpipe. The protester asserts that the agency should have permitted IJC the opportunity to respond to this negative past performance information, and claims that had it known the kind of reference this customer would supply, IJC would not have used this contract as a past performance reference.

Our Office will examine an agency’s evaluation of an offeror’s past performance only to ensure that it was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations, because determining the relative merit or relative relevance of an offeror’s past performance is primarily a matter within the agency’s discretion. A protester’s disagreement with the agency’s judgment is insufficient to establish that an evaluation was improper.

Where award is made without discussions, offerors may be given the opportunity to clarify certain aspects of proposals, such as the relevance of an offeror’s past performance information and adverse past performance information to which the offeror has not previously had an opportunity to respond. As we have previously recognized, however, agencies are not required to request clarifications in the context of an award, such as the one here, made without discussions.

IJC also asserts that the work performed under contract -0036 should have been evaluated as relevant, rather than somewhat relevant, because both contract -0036 and the current requirement included the installation of a catchment tank. As noted above, the statement of work for the current requirement contained more than just the installation of a catchment tank; it also included the excavation and backfill of approximately 1,950 linear feet of trench, the supply and installation of various water lines and sewer lines, the preparation and coordination for various electrical conduits, and the complete pressure testing of all water lines prior to backfill. We see no basis in this record to question the agency’s conclusion that contract -0036 was only “somewhat relevant” to the work at issue here.

The protester asserts that, because contract -0388 included “trenching, soil erosion controls, the installation of piping in the trench, [and] backfilling the trench,” the agency unreasonably evaluated it as “not relevant.” The contracting officer, however, explains that, while the current requirement includes some trenching and backfill work, it is estimated to be 20 percent or less of the contract effort. In answering the agency, the protester concedes that the current requirement is only 21 percent trenching, but disagrees with the agency’s claims about the extent of the plumbing involved in the current work.

Even if we agreed with the protester that contract -0388 should be viewed as somewhat relevant, the fact remains that on its other somewhat relevant contract (-0036), performed in Hilo, its performance was reasonably rated as marginal. In addition, the reference advised the agency that it would not use IJC for future projects. Under these circumstances, we see no prejudice to the protester from any such possible error in the relevancy rating assigned for contract -0388. See ITT Corp.-Electronic Sys., B-402808, Aug. 6, 2010, 2010 CPD ¶ 178 at 7 (prejudice is an essential element of every viable protest, and where none is shown or otherwise evident we will not sustain a protest, even where a protester may have shown that an agency's actions arguably were improper.)

Finally, the protester challenges the agency’s best value determination, asserting that it “seems unwarranted” for the agency to expend “more of the taxpayers’ [funds] than is necessary.”

A protester’s assertion that it should have received the award solely because of its low price, however, fails to state a valid basis for protest where, as here, the RFP provided that award would be based on technical factors as well as on cost. In any case, we find the agency’s best value determination here to be reasonable. As indicated above, Drainpipe cited in its proposal two past performance references for plumbing contracts that were found to be relevant with a satisfactory quality rating, and the contracting officer was aware of a third Drainpipe contract for plumbing that was “successfully completed on time” and a fourth contract not primarily for plumbing work that was also “successfully completed on time.” Drainpipe accordingly received a confidence assessment of “substantial.” In contrast, IJC had no contracts that were deemed relevant, one past performance reference that was deemed “somewhat relevant” but for which IJC’s performance was reasonably rated as marginal, and a fourth contract with satisfactory performance but that was but no better than “somewhat relevant.”
In these circumstances there is no basis for us to question the contracting officer’s determination that it was worth a price premium of approximately 7 percent to obtain the superiority of Drainpipe’s performance record.

The protest is denied.

Behold the best value

I have had a continuing discomfort with the rush to embrace best value, for at least a couple of reasons. Mind you, this is just the opinion of an observer.

Chiefly, "best" is always in the eye of the beholder, as in a beauty contest. It makes an objective review of the decision practically redundant, given the need to almost have to prove fraud to set aside an agency decision on the matter. An in awarding any contract, but particularly large contracts, it's the little things that appeal to one eye and not another that makes it a rich environment for dissatisfaction among participants and observers alike. If every finish is perceived to be a photo finish, suspicion turns on the judges by human nature.

Secondly, as practiced, best value has tended to turn to proven performance as the deciding factor to provide some degree of objectivity to ameliorate the first concern. While that is an necessary factor to be determined, when it becomes the essential factor it leads to an old boys network of routine providers who then become too big to jail. Ultimately, relying on the records of those who have survived early contest bouts tends to become anti-competitive.

But I have detected recently a few signs of new focus under the best value rubric, back towards price as an objectively supportable criteria when others tend to fail. What was becoming overlooked is the relevance of price in determining not just best value but best interest of the government. "Best" value is now becoming to be seen as "in a range of best" with price becoming more critical; the government is once again concerned with fiscal stress.

This takes us back to an earlier concept of lowest price, technically acceptability; what the ABA Model Code world recognizes as "multi-step" competitive bidding. On Guam, that is allowed by code in 5 GCA §5211(h), and more usefully described in regulation 2 GAR §3109(r).

The following GAO protest appeals case, as excerpted and reported below, is representative of what I'm talking about here.

Matter of: M&N Aviation, Inc., B-409048, December 27, 2013
M&N Aviation, Inc. (M&N), of San Juan, Puerto Rico, protests the award of a contract to Tradewind Aviation, LLC, of Oxford, Connecticut, by the Department of Justice, U.S. Marshals Service (USMS), under request for quotations (RFQ) for air charter services in support of the agency’s Justice Prisoner and Alien Transportation System (JPATS). M&N argues that the agency made award based on lowest price, rather than based on best value, as required by the solicitation. M&N asserts that had the agency conducted a proper price/technical tradeoff, it would have received award of the contract, and not Tradewind.

Quotations were to be evaluated based on technical, price and past performance criteria, with a contract to be awarded to the offeror whose quote, conforming to the RFQ, represents the best overall value to the government. When combined, technical and past performance were to be significantly more important than price. However, the RFQ instructed offers that where quotes were considered substantially technically equal, total evaluated price was to be the determining factor for award. Quotes were submitted by several offerors, including one from M&N, the incumbent contractor, and Tradewind.

After an initial evaluation, M&N’s quote was rated good under the technical factor, and satisfactory under the past performance factor. With respect to past performance, M&N provided three references, two of which responded to the past performance questionnaire. Tradewind’s quote was rated acceptable under the technical factor and was not rated under past performance. The record shows that Tradewind’s past performance was not evaluated as the firm did not provide any references.

The agency set a competitive range consisting of M&N and Tradewind. In its discussion letter to Tradewind, USMS identified one weakness and one deficiency. The discussion letter to M&N did not identify any significant weaknesses, deficiencies or adverse past performance; it simply provided M&N the opportunity to revise its price quote. M&N did not submit a revised technical proposal, whereas Tradewind did. A new technical evaluation was conducted of Tradewind’s revised proposal, resulting in an upgrade of its technical rating from acceptable to good. A review of Tradewind’s past performance information resulted in a rating of satisfactory.

In its final proposal submission, M&N revised its total price from $2,278,100.00 to $2,240,700.00. AR, Exh. 9, Award Decision, at 3. Tradewind’s price remained unchanged at $1,945,022.20.

The contracting officer determined that both M&N and Tradewind’s quotes were substantially technically equal. Based on this finding, she determined that award to Tradewind based on its lower-priced quote was in the best interest of the government.

While M&N does not specifically challenge the agency’s evaluation of its proposal, the firm does challenge the agency’s determination that its proposal was technically equal to the proposal submitted by Tradewind. A review of the record does not support M&N’s allegation, that award was made based on “best price and NOT by best value criteria.” The award decision clearly reflects the agency’s consideration of the relative technical merits and offered prices of both proposals. The contracting officer ultimately concluded that the proposals submitted by M&N and Tradewind were substantially technically equal and made award based on Tradewind’s lower price. However, it is clear that the contracting officer did consider relative technical merit in reaching this conclusion. In this regard, the contracting officer’s award decision comports with the stated evaluation criteria.

We also find no reason to question the agency’s evaluation of the offerors’ respective proposals. The evaluation of an offeror’s proposal is a matter within the agency’s discretion. A protester’s mere disagreement with the agency’s judgment in its determination of the relative merit of competing proposals does not establish that the evaluation was unreasonable. In reviewing a protest that challenges an agency’s evaluation of proposals, our Office will not reevaluate the proposals, but will examine the record to determine whether the agency’s judgment was reasonable and consistent with the stated evaluation criteria and applicable statutes and regulations.

In its protest, M&N lists various aspects of its proposal, which we infer to be offered as support for M&N’s position that its proposal is technically superior to the proposal of Tradewind. However, the protester did not address in its comments any matters related to its own evaluation, despite being provided with the agency’s evaluation documentation. Consequently, we view any challenge to the evaluation of M&N’s proposal as abandoned by M&N and will not consider it further.

With respect to Tradewind’s proposal, the protester primarily argues that the awardee did not offer aircraft that complied with the Statement of Work's requirement of “provisions for a minimum of 7-11 passenger seating” and should have been disqualified from the competition. M&N argues that the aircraft available to Tradewind are certified by the manufacturers to have a maximum of 9 passenger seats, and that such capacity does not meet the solicitation’s requirements. M&N appears to contend that the solicitation requires vendors to offer aircraft with capacity to seat the maximum of the range established in the solicitation, i.e., 11 passengers.

The RFQ nowhere stated that only an aircraft that could seat 11 passengers would satisfy the capacity requirement; instead, the RFQ identified a range between 7 and 11 passengers as its minimum requirement. While it appears to be M&N’s view that the solicitation requires aircraft that seat a minimum of 11 passengers, the RFQ’s statement of the capacity requirement in terms of a range suggests that seating capacity within that range would be considered. As a result, the agency’s reading of the requirement is consistent with the solicitation, and we have no basis to question its determination that Tradewind’s quote met the requirement.

M&N also argues that the agency treated the offerors disparately in the conduct of discussions, to its prejudice. Specifically, M&N asserts that while the agency informed Tradewind of weaknesses and deficiencies found in its proposal, it failed to inform the protester that one of its three past performance references did not return its past performance questionnaire. Second, M&N argues that while Tradewind was given the opportunity to revise its quote and address identified weaknesses and deficiencies, M&N was only given the opportunity to revise its price.

When an agency engages in discussions with an offeror, the discussions must be meaningful. In order to be meaningful, discussions must be sufficiently detailed so as to lead an offeror into the areas of its proposal requiring amplification or revision in a manner to materially enhance the offeror’s potential for receiving award. An agency may not, through its questions or silence, lead an offeror into responding in a manner that fails to address the agency’s actual concerns; may not misinform the offeror concerning a problem with its proposal; and may not misinform the offeror about the government’s requirements. While the precise content of discussions is largely a matter of the contracting officer’s judgment, such discussions must, at a minimum, address identified deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond.

With respect to M&N’s first allegation, it is not objectionable to evaluate an offeror’s past performance based on fewer than the maximum possible number of references the agency could have received. Here, the RFQ did not specify a minimum required number of past performance references, nor is there any evidence that the agency treated the absence of a response from one of M&N’s three past performance references as adverse information. To the contrary, M&N received the highest past performance rating of satisfactory. As such, we do not believe that the agency was required to inform M&N of the absence of the questionnaire during discussions.

With respect to M&N’s second allegation, there is no evidence that the agency found any deficiencies or significant weaknesses in M&N’s proposal. There is also no evidence that the agency identified any adverse past performance information regarding M&N.

Finally, the record does not reflect that the agency limited the protester’s ability to revise its proposal. Our review of the record leads us to conclude that the agency’s discussions with M&N were meaningful and the firm was not treated unequally vis-a-vis Tradewind.

The protest is denied.