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Friday, October 31, 2014

To procure or not to procure: is that the question?

The U.S. Court of Federal Claims is a court of limited jurisdiction. It can hear some contract disputes, but not all contract disputes, for instance. If a case is brought to the court which is beyond its jurisdiction, however juicy the merits and what it may have to say about the merits, it cannot; it must dismiss the case.

Sometimes, though, the comments it makes in doing so are juicy in their own rights.

The case in this post is one of those, even though the juicy remarks may not be reported in this post.  I have presented it chopped, sliced and diced to my own ends, so do not rely on this rendition as an accurate reproduction of the case.  If you want to know what it really says, read the whole case at the link. 

And if you really want to understand the matter better, read the cases cited in this case. There have been many trying to resolve the simple question, "what is procurement?"  (And while at it, I added a word on "is procurement an inherently governmental action?" whilst reading one of the cases cited.)

In short (read the long version at the link), this is a protest about a decision of the government to use software it had developed and came to own, rather than go to the market to allow other software providers a crack at the work.

VFA, INC. v. USA, U.S. Court of Federal Claims No. 14-173C, (October 2014)
The DoD uses a particular software package in making decisions about sustainment, restoration, and modernization of its facilities. VFA owns and markets a similar software product. The Under Secretary of Defense for Acquisition, Technology, and Logistics issued a memorandum to standardize the use of the
program at all of DoD’s military installations.

VFA filed a bid protest in this Court, alleging that the DoD’s standardization decision excludes VFA and others from competing for contracts to provide facilities management software, in violation of the Competition in Contracting
Act, 10 U.S.C. § 2304 (“CICA”). Simply put, VFA contends that the DoD should be conducting competitive procurements for this software product. The Government argues that an internal standardization decision is not a “procurement” for purposes of the Court’s Tucker Act jurisdiction, and consequently VFA is not an interested party who may challenge such a decision.

In a federal agency as large as DoD, it became increasingly apparent that multiple and different facilities condition assessment tools across DoD installations generated inconsistent and incomparable data. A 2012 Senate Report noted that the DoD “does not have a set of standards or metrics that can be used to inform budget decisions and Congress on the minimal annual levels of funding required to recapitalize the physical plant at a rate that matches the design lives of facilities in the [DoD] inventory.” The report further noted, “[b]udget pressures and other priorities can result in funds appropriated for facility sustainment being used to fund other categories of base operating support. This leads to facilities that do not receive minimal levels of annual preventative maintenance, and are not modernized to current standards for safety, security, and technology.” The report concluded that, “[o]ver the long-term, underfunded maintenance on [DoD]’s facilities costs the Department more in eventual repairs and replacement.”

To address the concerns raised by the consultants and Congress, the DoD made a policy decision to standardize its facility condition assessments. As part of this policy, the DoD chose to standardize the software it developed and owns itself, which was widely used in almost all of its installations, and which had received recognition for cost savings.

The Court must determine whether a plaintiff has established subject matter jurisdiction before proceeding to review the merits of the complaint. The jurisdiction of this Court is limited and extends only as far as prescribed by statute. Where subject matter jurisdiction is challenged, the plaintiff must establish the Court’s jurisdiction by a
preponderance of the evidence. If the Court finds that it lacks subject matter jurisdiction, it must dismiss the claim.

Under the Tucker Act, this Court has “jurisdiction to render judgment on an action by an interested party objecting to . . . any alleged violation of statute or regulation in connection with a procurement or proposed procurement.” In this case, VFA has challenged the government’s actions under CICA and the FAR, but the key phrase for Tucker Act jurisdiction is that Plaintiff’s protest must be “in connection with a procurement or a proposed procurement.” Id. Since neither the Tucker Act nor CICA define the term “procurement,” the Federal Circuit has held that the term “procurement” includes “all stages of the process of acquiring property or services, beginning with the process for determining a need for property or services and ending with contract completion and closeout.” See Distributed Solutions 539 F.3d at 1345-46.

While many courts have cited Distributed Solutions for the proposition that Tucker Act bid protest jurisdiction is broad, the holding remains limited by the facts of the case. Distributed Solutions involved an attempted circumvention of federal procurement law when the Government sought to acquire software for a joint program between the U.S. Agency for International Development (“USAID”) and the State Department. The Government delegated to a contractor the task of selecting private vendors to provide the software. The Government, along with the designated contractor, issued a Request for Information (“RFI”) which stated that the objective of the government’s effort was to “select and implement acquisition and assistance solutions that meet the unique functional requirements of both [USAID and the Department of State].” The RFI specifically stated that it was “for market research purposes only” and would “not result in a contract award.”

After reviewing the responses to the RFI, the Government told the vendors that it had “decided to pursue alternative courses of action.” But, the contractor then issued its own RFI, and used the responses to select the software vendors it wanted. The Government initiated a type of procurement competition without actually committing to award a contract to the best offeror, thereby circumventing applicable federal procurement laws. [NB. My take: The first RFI was used to develop the government's determination of need, an aspect of "procurement". Then, once that was done, the second RFI was used to narrow the field of competition to select the awardee.] Thus, the Federal Circuit concluded that a procurement existed and that a legally compliant competition was required.

The present case is much different in key respects. Here, the DoD never contemplated or initiated a procurement process. The Government did not issue an RFI, did not receive information from vendors, and did not plan to award any contract. From the DoD’s standpoint, it already possessed the SMS program it wanted to use, and there was no reason to acquire anything. VFA is requesting a competitive procurement in order to sell to the Government something it already possesses.

Plaintiff argues for the application of other standardization decisions where this Court has interpreted the breadth of § 1491 jurisdiction broadly. While these cases involved software standardization decisions by the Government, the Court finds that the similarities end there.

In Savantage, the Department of Homeland Security (“DHS”) conducted a solesource procurement for financial systems application software. DHS decided to standardize its software on the Oracle and SAP systems, signing a “Brand Name Justification” instead of conducting a competition. DHS then issued a solicitation for services to migrate to these systems. Plaintiff challenged the underlying standardization decision to use the software of Oracle and SAP, and this Court accepted jurisdiction of the protest. The Court found that DHS expanded its systems contracts with Oracle and
SAP without any competition for the new work. Specifically, the Court ruled that the “expansion of work fits squarely within the congressional definition of ‘procurement’ because it is an acquisition of additional property or services from Oracle and SAP.” The Court rightly held that acquiring new work from a private vendor is, by definition, a procurement action on the part of the Government.

Similarly, in Google, the Department of Interior “restricted competition exclusively to the Microsoft BPOS-Federal and the Microsoft Desktop and Service Software for messaging and collaboration solutions,” in effect standardizing on a single private vendor’s product instead of conducting a competition.

In all of these software standardization cases, the Government attempted to conduct asole-source procurement without any competition. The existence of a procurement triggered this Court’s jurisdiction.

VFA argues in the alternative that the Court should follow the reasoning of recent “insourcing” cases, positing that the DoD’s use of its own software to the exclusion of VFA and others constitutes “insourcing” and grants this Court jurisdiction. In all of the cited insourcing cases, the DoD was obligated to compare cost efficiency between civilian and contractor personnel under 10 U.S.C. § 129a (“The Secretary of Defense shall establish policies and procedures for determining the most appropriate and cost efficient mix of military, civilian, and contractor personnel to perform the mission of the Department of Defense.”).

Each of the cases involved a required cost comparison, and this fact alone distinguishes them from the present case. The fact that the DoD compared the cost of the private contractor to its own hiring of civilian personnel is a significant step in the procurement process, and one that was never taken in this case. Further, each of these cases required the hiring of civilian personnel, not just the use of existing personnel, and thus involved an acquisition process.

VFA has pointed to no regulation or guideline suggesting the DoD was under an obligation to compare the cost of the SMS to the software products offered in the commercial market. Because it was not so required, the Government did not solicit any commercial pricing proposals, did not issue an RFI, and did not conduct an internal review or comparison of products.

Allowing VFA to bring this case, where no procurement or cost comparison process was mandated or undertaken, would so broadly expand this Court’s jurisdiction as to eliminate any restrictions of the Tucker Act. Under VFA’s theory of
jurisdiction, every time the government chooses not to procure a good or service from a private contractor, and instead creates or develops something on its own, the providers of similar products and services would be able to challenge this decision, asking “why don’t you buy from us instead?” The Court is unwilling to open this “Pandora’s box.”
While reviewing the Distributed Solutions decision, I noted another twist on the question of what actions of a government are "inherently governmental" so as to not be delegatable to a non-government entity. Recall from the VFA decision the descriptions of facts in that case: "The Government delegated to a contractor the task of selecting private vendors to provide the software."

In Distributed Solutions, the Government sought
to dismiss the contractors' complaint for lack of jurisdiction, arguing that the protest was not viable, as the contractors were essentially protesting the award of subcontracts by a contractor with a federal agency, and not an award of a contract by an actual federal agency.

On appeal, the contractors contend that the trial court misinterpreted the basis for their complaint. Contrary to the focus of the trial court's analysis, the contractors are not contesting SRA's award of the subcontracts. Rather, they are contesting the government's decision to task SRA with awarding subcontracts for the purchase of software instead of procuring the software itself through a direct competitive process.

We agree, as the contractors' complaint confirms as much. For example, paragraph 8 of the complaint alleges that the government "improperly delegated an inherently governmental function." As another example, paragraph 52 of the complaint alleges that "[b]y initially soliciting information from prospective bidders, improperly inserting SRA into the procedure to do directly what the [government] could not do—select a vendor without being subject to the federal procurement laws—the [government has] attempted to circumvent the federal procurement laws and foreclose any attempt to challenge their actions."
Distributed Solutions is good authority not only for the broad, but limited, reach of the term "procurement", but also for the proposition that government contracting is an inherently governmental activity which cannot be hived off to the private sector.
















Wednesday, October 22, 2014

The responsibility to consider all factors to make a determination of responsibility

It is too often said to hammer the point, but no government contract award should go to a bidder or offeror who is not responsible. The curious thing about the ABA Model Procurement Code and Guam's version of it is that there is no specific requirement that there be a written determination of responsibility. There is, however, a specific obligation to make a written determination of non-responsibility. (See ABA Model Code § 3-401(1) and Guam law 5 GCA 5230(a).)

What's a determination? Well, it's not definitively clear what a determination per se is, but the Regulations to the Model Code describe a written determination (handy to know because only written determinations are specifically required to be kept (Model Code § 1-201). According to R1-201.01.2, "each written determination shall set out sufficient facts, circumstances, and reasoning as will substantiate the specific determination which is made". It seems reasonable to expect, then, that an unwritten determination must be based in sufficient facts, circumstances and reasoning to substantiate the determination made, even if not put to hand or keyboard.

So what's responsibility, since, "before awarding a contract, the Procurement Officer must be satisfied that the prospective contractor is responsible"? (Model Regulation R3-401.04, Guam regulation 2 GAR § 3116(b)(4).) This is where it gets interesting, because finding responsibility is a judgment call, not easily second-guessed by other bidders, administrative tribunals or courts.

The Model Code, and Guam law likewise, define responsibility in their regulations. The relevant regulations describe responsibility in terms of "Standards of Responsibility", including such factors as availability of appropriate resources (plant & equipment, financial, personnel and otherwise), or ability to obtain them; satisfactory records of performance and integrity; qualification to do business (basically, a general business license), and responding to requests for information to corroborate those things.

The thing that has stood out in my interpretation of these standards is that, while they do not usually all come into play in any given case, the must all be considered in every case. The language of the regulation says, "factors to be considered in determining whether the standard of responsibility has been met include whether the prospective contractor has [met those standards]". The phrase "to be considered" is, to my thinking, mandatory, though I have not yet found a case that says precisely that.

But the following story seems to underline my theory. I have put it together from several indirect sources because I cannot yet find the primary source. As I present it, the story is pieced together from the following articles, and you need to read each for full context, and to find which part of any such article, if any, I borrowed:
GAO upholds FCi protest against security contract to USIS unit
USIS suffers another blow as GAO rules for competitor in wake of fraud allegations
GAO sustains protest of DHS contract to USIS
Bid Protest Ruling Deals Blow to Background Check Contractor
GAO questions fitness of USIS
    The U.S. Government Accountability Office (GAO) on Monday upheld portions of a protest filed by vetting firm FCi Federal Inc against a $190 million contract awarded to a unit of U.S. Investigative Services LLC (USIS) earlier this year by the Department of Homeland Security. The matter was released in a statement. GAO has not released the full protest decision because it contains sensitive acquisition information. GAO will release a redacted version in the coming weeks.

     FCi Federal has filed the protest, arguing that federal fraud charges filed against USIS LLC by the U.S. Justice Department for "dumping" 665,000 background check cases without conducting proper reviews should have disqualified it from winning the contract.

     The GAO said the Homeland Security Department should take another look before deciding whether contractor USIS is “presently responsible” enough to receive a field services contract at the United States Citizenship and Immigration Services.

     GAO concluded that “DHS’s affirmative determination of USIS’s responsibility was not reasonable because the agency failed to consider pending allegations of fraud by the awardee’s parent company under another federal contract,” GAO General Counsel for Procurement Law, Ralph O. White, wrote. “GAO recommended that [DHS] reasonably consider whether USIS can be viewed as a responsible contractor, taking into account USIS’s description of its relationship with its parent company, USIS LLC, as well as the specific allegations of fraud raised by the Justice Department against USIS LLC.

     Asked for a comment, a USIS spokesman said, “This ruling flies in the face of the outstanding ratings awarded to US Investigations Services, Professional Services Division Inc. during the contract award process. PSD won this contract from the incumbent contractor after a rigorous two-year competition, which followed long-standing government procurement procedures, and, since the contract award decision, USCIS has graded PSD’s performance on another significant contract as exceptional or very good across the board.”

     The Justice Department has accused USIS of cheating the government out of millions of dollars through a practice called “dumping,” in which the company purportedly claimed it completed background investigations that remained unfinished from 2008 to 2010.

     But USIS has said it has new leadership and has beefed up oversight at the company. It said the accusations involved a “small group of individuals” who are no longer with USIS. The company also said the Homeland Security contract went to USIS’ professional services division, which is separate from the background check operation.

     "GAO sustained FCi Federal's protest after concluding that DHS's affirmative determination of USIS's responsibility was not reasonable because the agency failed to consider pending allegations of fraud by the awardee's parent company under another federal contract," said Ralph White. "An affirmative determination of responsibility is the legal term that describes the threshold finding, inherent in the award of every federal contract, that the company awarded the contract has the capacity, ability, and requisite integrity to perform a contract for the government."

     The GAO ruling highlighted a portion of federal procurement law that says contractors must be “presently responsible” to get hired. In layman’s terms, that means contracting officers must attest to the fact that companies have the integrity, manpower and finances to complete the contract.

Friday, October 3, 2014

Emergency procurement: the last refuge of the sole source scandal

Pearson Lands Common-Core Contract in Mississippi After Testing Standoff
Mississippi officials have approved an "emergency procurement" contract with Pearson to administer common-core tests for the coming academic year—a step taken after a state board questioned the legality of the business arrangement and refused to sign off on it.

The one-year deal, which state officials said is worth $8.3 million, comes on the heels of the state's personal service contract review board telling the state department of education that it would reject a proposed, sole-source, four-year agreement because it believed competing proposals should have been sought from other vendors.

"To be approved as a sole source and awarded without competition, the service must be available from only a single supplier," said Deanne Mosley, executive director of the Mississippi state personnel board, which supports the contract review board, in a statement. "The company selected by New Mexico officials is not the only company which can provide these services."

Because of the board's stance, department of education officials say they had little choice but to approve the one-year contract to ensure that a portion of the state's schools, scheduled to give tests in December, could do so. The other options would have been to put forward competitive sealed bids or proposals, the agency said.

The board's decision angered department officials, who released a timeline of what they described as a lengthy and persistent effort to win approval of the contract.

The dispute in Mississippi has ties to a broader fight over a PARCC contract out of the state of New Mexico, a fracas that Education Week has been following closely.

In April, New Mexico officials approved a contract for PARCC test administration with Pearson, the only bidder on the project. A rival vendor, the American Institutes for Research, protested the bidding process, arguing that it improperly favored Pearson by bundling testing work that company was already providing PARCC with future duties administering the exam. AIR later sued in state court to stop the deal. After its appeal was rejected this summer by New Mexico's state procurement office, the AIR scaled back its legal fight. It is now suing to try to limit the scope of the contract to one year, and to have the remainder of the deal, which it says could last either four or eight years, re-bid.

Why does a deal hatched in New Mexico matter in Mississippi? The New Mexico contract establishes a price agreement with Pearson, which other PARCC states, including Mississippi can latch onto, if they want.

(The overall financial stakes of that Pearson vs. AIR fight could be massive in scale: In court documents, the AIR has said that if other PARCC states procure services for testing through the New Mexico deal, the contract could be worth $1 billion.)

Mississippi department of education officials, in statements, have argued that they have followed the proper process, over a period of several months, in seeking a sole-source contract with Pearson.

In their timeline describing those efforts, department officials said things were rolling along until they began meeting resistance from the contract review board.

Last month, when Mississippi's contract-review board told the department of education that the Pearson contract would not be heard by the board until September, the agency reacted with alarm—fearing the delay would jeopardize tests slated to be given to about 16,000 students in Mississippi schools later this year.

Mosley, in a statement, said that the contract-review board, after evaluating the New Mexico deal, became convinced it did not meet the legal standards of her state. Department officials had not shown that Pearson was the only company that could carry out the testing job, said Mosley, whose office declined further comment to Education Week.

"[I]t could not be approved as a legal and proper expenditure of taxpayer funds as it did not follow Mississippi procurement laws," Mosley said. "The New Mexico officials who selected this vendor to receive the contract did not take that into account and did not follow Mississippi laws in place to protect Mississippi taxpayers."

The department of education, however, disagrees.
A foundational principle of procurement is competition. As the Guam procurement law says (5 GCA § 5001(b)(6)), following ABA Model Procurement Code guidance, the state should "foster" competition. The first rule of Guam law is that the principles of procurement should be construed and applied to give effect to the laws. (§ 5001(a).) Thus, given a choice of 2 ways to assess a situation, the way the that gives effect to competition should be preferred to the way that does not. Giving away a contract by sole source when there is any question of availability of competition violates this first law.

Furthermore, Guam law understands that "emergency" is not a failure of planning, as does Federal law. Under Guam law, "emergency" is defined a "a condition posing an imminent threat to public health, welfare, or safety which could not have been foreseen through the use of reasonable and prudent management procedures...." (§ 5030(x).) Further, the emergency method of source selection requires "emergency procurements shall be made with such competition as is practicable under the circumstances" and limits the scope of the acquisition to "an amount of goods or supplies [not] greater than the amount of such goods and supplies which is necessary to meet an emergency for the thirty (30) day period immediately following the procurement". (§ 5215)

At the federal level, use of sole source, described under the general description as "Other Than Full and Open Competition" (see FAR SubPart 6.3), requires particular scrutiny and written justification. In particular, Subpart 6.301(c)(1), says "Contracting without providing for full and open competition shall not be justified on the basis of— (1) A lack of advance planning by the requiring activity...." Also see Part 7 for a description of planning principles and rules aimed to promote competition and Part 10, which requires market research to, among other goals, "Determine if sources capable of satisfying the agency’s requirements exist" (Subpart 10.001(a)(3)(i)).

None of that seems to have bothered the decision makers in the instances reported above.

Avoiding sole source scandals is such an easy step. Don't use it: just do the planning and market research, put a competitive method of source selection out, actually foster competition, and see what you get.

Oh, and provide incentive to do so.  Guam has an "ENFORCEMENT OF PROPER GOVERNMENT SPENDING" Act.   Under the act, any taxpayer has standing to bring action against any government officer or employee, including the governor, to recover for the government purse, any funds expended "without proper appropriation, without proper authority, illegally, or contrary to law."  (§ 7103.)