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Friday, December 30, 2016

The business of government

I've taken the following article and sliced and diced it to my own editorial fancy, to make particular points about procurement, as is my wont in this blawg. So, if you really want to know the article's author's intent, read it at the title link.

Go on. Click the link and read it from the horse's mouth; some may view it as thought provoking. I did.  My convoluted version follows the link and hopefully does not too much damage to the author's intentPay attention to my identified tags/labels (in the head of this blawg) to put this post in my context.

Thinking about the business of government, By CHRIS DISHMAN, a Ph.D. candidate in public affairs at the University of Texas at Dallas, who wrote it for the Dallas Morning News.
Total spending for the executive branch, known as “discretionary funding,” amounts to 30 percent of all U.S. spending. “Mandatory spending” accounted for 70 percent of total government spending in 2016.

The Department of Defense accounts for half of “discretionary” spending, so agencies like Commerce, Energy, Homeland Security and Veterans Affairs make up 15 percent of total spending. If Congress eliminated the Department of Energy, for instance, the government would save $28 billion annually, which is roughly equivalent to the cost of two new CVN-class aircraft carriers.

Medicare, Medicaid, Social Security and interest on the debt make up the bulk of “mandatory” spending, together with other “entitlements”, social as well as corporate.

The executive branch is the same size as it was in the 1970s, despite the increasing number of laws and regulations passed by Congress. The government remains at 2.1 million people or less.

The government’s workload has skyrocketed, as measured by the amount of spending per government employee, yet neither Congress nor any executive will support additional resources to implement the rules and regulations they advocate. The result of this dilemma is that government contracts out many of its duties to the private sector. And this forces government managers to shift existing resources — those used to undertake other governmental duties — to “manage” those contracts.

The government is paying big dollars to companies to undertake governmental missions. Why? Because it is politically palatable. Mandatory spending must be addressed to balance the budget, but politicians know that threatening a reduction in these programs is electoral suicide. Do you wonder why lobbyists like this approach?

There are fundamental differences between business and government.

Constitutional values, not corporate law and profit, guide the public sector. Ideally, government serves public interests while protecting the competing values that underpin those interests.

The private sector, in contrast, is governed by corporate law and profit, and business executives are, in the main, disinterested in anyone who cannot support that goal.

These differences do not mean that government cannot learn from the private sector. But we should remember that the republic’s founders intended the structure and processes of government to reflect constitutional values, not those of free enterprise.

Monday, December 19, 2016

Minor post-bid mistatkes

Protests arise following Shop Road extension contract award
The Richland County Council has spoken on a contract for a $25 million road project aimed at sparking industrial development. However, one of the firms that lost out is still fighting to overturn the decision.

On Friday, attorney Kathleen McDaniel for Richardson Construction Company, a Richland County-based company, went to court in a last ditch effort to win a contract of at least $22 million dollars. She says the contract was wrongly awarded to another bidder. “We believe this is not consistent with Richland County's procurement ordinance.”

McDaniel admits Richardson made a minor and easily correctable mistake on its bid proposal. However, that mistake could cost taxpayers about $2.9 million if the contract goes to McClam and Associates - the highest bidder and the one approved by a 9-2 majority of the county council.

“The county has a concern that if they permit any type of revision to a bid, post-bid I think, that would be inconsistent with the county procurement code. I think we just have a different interpretation of what the procurement code permits and that's why we will be filing a protest with the Richland County procurement review board,” McDaniel said.

It won't be easy for Richardson to prevail, however. Richland County Council's Torrey Rush and others in county government are worried about setting a precedent for other bidders to try to change their proposals after submitting them. County government is also concerned that overturning the decision could cause construction delays and problems for development of another project dependent on the road.

Read more and more accurately at the link.

In a related article, Construction company suing Richland County over Shop Road project, it is reported:
The plaintiff, Richardson Construction Co. of Columbia, says it was the lowest bidder for the project by $3 million but made what it considers a minor mistake in its bid that caused the county not to consider the company for the job. Richardson’s complaint was filed Thursday in the Richland County Court of Common Pleas.

County administrator Gerald Seals has told County Council the county’s procurement laws do not require the county to allow bidders to correct errors in bids once the bids have been opened.

Read more and more accurately at the link.
The American Bar Association procurement law and regulations have provisions that speak to this situation, and could aid Attorney McDaniel if the same or substantively similar rules apply in Richland County and the facts are amenable.

Guam's procurement law is based on the ABA model, so I will refer to the Guam version.  Guam has a regulation dealing with mistakes in bids, generally, and with mistakes made in various stages of the solicitation process. 2 GAR § 3109(m)(4) particularly deals with mistakes made after bid opening but before award.

Generally speaking, the rule distinguishes between mistakes of judgment and other non-judgmental mistakes. "If the mistake is attributable to an error in judgment, the bid may not be corrected. Bid correction or withdrawal by reason of a nonjudgmental mistake is permissible, but only to the extent it is not contrary to the interest of the territory or the fair treatment of other bidders." (§ 3109(m)(1).)

A nonjudgmental mistake made after opening but before award may consist of a minor informality or a matter of substance that is insignificant. Such insignificant mistakes "can be waived or corrected without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible. The Procurement Officer shall waive such informalities or allow the bidder to correct them depending on which is in the best interest of the territory." (§ 3109(m)(4).)

This regulation is specifically backed up by statute: "Correction or withdrawal of inadvertently erroneous bids before or after award, or cancellation of awards or contracts based on such bid mistakes, shall be permitted in accordance with regulations...." (5 GCA § 5211(f).) The corresponding ABA Model Procurement Code cite is §3-202(6) and the Model Regulation is §R3-202.11.

As an aside, regulation § 3109(m)(4) incidentally provides a guide to what is meant by the term "bidder prejudice", indeed it is the only reference in the Model Code and Regulation that comes close to specifically defining the term. 

Insignificant mistakes, the regulation tells us, can be waived or corrected "without prejudice to other bidders; that is, the effect on price, quantity, quality, delivery, or contractual conditions is negligible". Thus, a claim of bidder prejudice must be based in something in the bid that has an effect on price, quantity, quality, delivery, or contractual condition which is more than negligible. For instance, bidder responsibility is based on factors concerning the nature of the bidder, not the nature of the bid. This can be a handy guide to distinguishing between what constitutes an issue of responsiveness and what constitutes a matter of responsibility.

Of park benches and benchmarks

The U.S. Chamber of Commerce recently held an event to make its members aware of the World Bank's Benchmarking Public Procurement (BPP) project, and present an opportunity for its members for doing business with foreign governments:

Benchmarking Public Procurement 2017
Following a G20 decision, the World Bank has evaluated and published the first Global Public Procurement Benchmarking for 180 countries. The conference launched the release of the benchmarking results to the public. The analysis from the report highlights the needs assessment for procurement as a prerequisite for efficient processes. There was a resounding theme of reform and progress towards openness, transparency, competition, value for money and accountability. Transparency was echoed as one of the key pillars to a grounded procurement system and a means to mitigate corruption.
The BPP itself, says,
The core principles of public procurement—transparency, equal treatment, open competition, and sound procedural management—should underlie every transaction that takes place when the government purchases goods or services from a private supplier. Transparency is essential at every stage of the process; a legal procurement system that ensures transparency creates an enabling environment for competition. By promoting the goals of transparency and competition, governments can make sure that the allocation of public resources and funds will be optimized by contracting with the most appropriate bidder for the tender and procuring the best quality of goods, works, and services at the best price.

An effective means of ensuring value for money in the award of contract is by allowing all qualified suppliers to bid for public contracts. The competitive tendering method will provide a range of contractors with variety of goods, works and services, enabling an organization to select the best available option, all things being equal. Conversely, ineffective and nontransparent public procurement rules can result in the public purchase of goods and services at inflated prices and can encourage rent-seeking by private companies.
With the emphasis on competition as well as transparency, it bears repeating that governments tend to like to hide procurement acts through third parties, confidentiality agreements, subcontractors, FOIA holes, and other rabbit holes.

One such suspicious rabbit hole is the one mentioned in this following article, which you should read at the link.

Commentary: Philly overdue for an overhaul of its procurement system By Maria D. Quiñones Sánchez, Councilwoman representing the Seventh District.
'Rebuild" - Mayor Kenney's $700 million initiative to make improvements in parks, playgrounds, libraries, and rec centers - is coming soon to neighborhoods around Philadelphia. As the city works to identify priority projects and creates a new bureaucracy to administer these investments, we must take advantage of this opportunity to finally attack the problem of much-needed procurement reform in Philadelphia.

Currently, the administration is considering contracting with one non-profit partner to administer Rebuild, instead of keeping the projects within our existing capital projects system. While nonprofit partners have a vital role to play, it is a mistake to outsource this initiative to just one entity.

The city spends a lot of money, and we're looking to spend more. In addition to the $700 million Rebuild, we have a $9.7 billion five-year capital plan; multibillion-dollar infrastructure investments planned for the airport and Water Department; and more than $1 billion is spent annually on goods and services.

The way we spend those dollars can have a tremendous impact in our neighborhoods, our business community, and our job market. Unfortunately, right now the rules that govern how we spend that money do not support our shared goals of efficiency, diversity, and inclusion.

Instead of using our investments to build communities, we practice business as usual and maintain the status quo. The vast majority of the work goes to the few big, savvy contractors who can navigate the process, and small businesses are largely shut out. We need to make major changes to bring fairness and clarity to this process. Here's how:

Prioritize project management: The groundbreaking is only the beginning - after the ceremonial shovels are put away, neighbors are too often left with a project that drags on, over budget, and months or years past deadline. This is why we have a years-long capital projects backlog now. To change this, we should institute project management requirements to hold contractors accountable to the city and to the community. This is where our private and nonprofit sector partners can bring their expertise to ensure compliance and accountability in these projects.

Welcome more small businesses as city contractors: Small businesses do exceptional work in every city neighborhood every single day. If we create supports to bring them into this process, they can compete with the big guys, creating jobs and wealth in their communities. We can be more welcoming to small contractors by debundling oversized contracts into manageable smaller ones, and developing insurance, bonding, and financing umbrellas to help them meet the cash-flow and back-office demands of participating in the city procurement process.

Develop diversity in the building trades: City Council's 2015 Annual Disparity Study showed us that the growth in certified minority- and women-owned contractors has not been matched by their participation on city worksites. The diverse workforce is growing, but it isn't being hired. Meanwhile, we continue to exempt contractors from our own diverse workforce requirements, accepting their excuses that there aren't people of color and women who are able to do these jobs.

Comprehensive reform of our procurement system is an ambitious undertaking, but the time is now for bold action. We are fortunate to have in Mayor Kenney a leader with the political will - and a very willing partner in Council - to finally get this done. The voters have entrusted us to manage our government and use resources to help spur economic growth and create jobs. Investing in public works as job-creation strategy has a proud history in our country and, if we do this right, Rebuild and our capital projects could be a transformative jobs program for Philadelphia.
And then there's this: State fiscal chief seeks more economic development oversight
New York state Comptroller Thomas DiNapoli says the ongoing bribery and bid-rigging scandal roiling Gov. Andrew Cuomo's administration shows more scrutiny is needed when it comes to state economic development programs. DiNapoli, a Democrat, proposed several changes Tuesday that would subject more state contracts to independent review and restore his office's oversight over state universities.

He also wants to prohibit state agencies from creating non-profit entities that allow them to funnel public dollars to projects while circumventing contracting and reporting rules.
Councilwoman Sanchez may want a word with NY Comptroller DiNapoli.

Centralized Procurement: Theory vs Practice

In theory, theories work.  In practice, they often do not.  Whether practice does or does not comport with theory is often dependent on the vision the theorists have and convey vs the commitment and practices the practitioners decide to use to implement the theory. "'Tis many a slip twixt cup and lip", as they say.

The following is yet another example of a good idea gone wrong because it was gleefully exaggerated and politically oversold. Implementation requires good management, but so does planning. If you plan for the unreasonable, no amount of good management will get you to the final vision.

Cabinet Office did not get departmental buy-in for shared procurement plans, says spending watchdog

The UK government’s attempts to reform central buying through the Crown Commercial Service (CCS) was launched in April 2014, bringing in staff from the Government Procurement Service, with a mandate to buy common goods and services directly rather than simply creating frameworks for departments to use.

But a new report by the National Audit Office ("NAO") says the Cabinet Office was too reliant on this mandate, and “severely underestimated the difficulty of implementing joint buying across government”.
Cabinet Office underestimated difficulty of procurement reform, say auditors
In theory, central buying should achieve very large savings, the NAO said. But it was not clear what spending should be centralised. It said the Cabinet Office relied on a Cabinet committee mandate to get departments to transition services quickly, and did not consider how it would manage them once services were transitioned.

Overall, the CCS has not achieved its ambitions, which the NAO believes were not realistic. The Cabinet Office’s plan to create the service “wrongly estimated both the activities and the amount of goods and services that were appropriate to be bought centrally.” Auditors recommended that the Cabinet Office should reiterate the mandate for CCS in central government, and set clear expectations for those departments yet to transfer their buying of common goods and services to CCS.

Auditor general Amyas Morse said that without a sound overarching business case or a detailed implementation plan, it is not surprising that the Crown Commercial Service rapidly ran into difficulties. “It is particularly disappointing that the Cabinet Office has not tracked net costs and benefits,” he added. “Because of this, it is not possible to show that CCS has achieved more than departments would otherwise have achieved by buying common goods and services themselves.”
CCS centralised buying in the public sector isn’t working yet, but worth pursuing
Something’s not working somewhere. CCS was set up in 2014 with an objective of saving £3.3 billion in procurement spend by 2018. For the 2015/2016 period, it’s claimed that £521 million of savings can be attributed to CCS. Some £12.8 billion of spending by central government and public sector organisations uses CCS frameworks for the deals.

But the NAO concludes that it’s impossible to tell whether those would have occurred anyway without transferring buying responsibilities to CCS. In addition, these claimed savings were calculated on a different basis and are not directly comparable to the planned net benefits of £3.3 billion over four years. Most damning of all the criticisms is the one that states that to date CCS hasn’t actually done the job it was supposed to do.

The NAO goes on to suggest that a significant problem for CCS was lack of consistency of data and no common understanding of what can and can’t be centralised:
[CCS] did not have consistent information on what departments spend and there is no agreement with departments about what should be centralised and what should be bought locally. The Cabinet Office’s estimates of the common goods and services suitable for centralisation have varied from £8 billion to £15 billion. For example, all departments buy information technology, but many of these contracts are strategically important to the department and hard to specify centrally.
With all that in mind, it’s hardly surprising that the NAO report notes that “from the start there was a rapid erosion in departments’ confidence in CCS” and that by 2015 the programme was “widely acknowledged to be in difficulty”.

Leaping to the defence of the Cabinet Office, John Manzoni, chief executive of the Civil Service, says:
The Cabinet Office will always set ambitious targets for the work we do right in the heart of government. CCS has made huge strides in recent months, and we expect to see more and more savings as the changes we make take hold across departments. From the centre we will increase skills and bring in the talent needed to make sure every penny of taxpayers’ money is used to its absolute maximum.
That’s a pretty standard reaction to criticism from ‘Sir Humphrey’, coupled with a a mile-high statement of direction from the centre, but it doesn’t address the problems at hand.
CCS’s current management does not consider [CCS original] plan to have been achievable as it thinks the plan wrongly estimated the amount of common goods and services appropriate for centralisation, and the buying services which should be undertaken centrally. CCS’s current management also believe the original plan did not adequately define the activities that customers would still need to carry out.
For all its criticism, the NAO admits that the “strategic argument for joint buying remains strong” and that the right structures and management is now being put in place. Since launch in 2014, only four of the original 11 board and senior management team at CCS have stayed in site. But the second half of this year has seen CCS bring on board four senior managers with “significant operational experience”.

[The author of this article, Stuart Lauchlan, offers his take:] Any kind of significant reform in government is going to take time, dedication and a willingness to challenge the status quo. Making bold policy declarations isn’t enough in its own right. One of my favourite phrases here is that of the political will meets the administrative won’t. That demands strong and coherent leadership from the centre and that’s something that undermined CCS in its early days.
My take: When even the best laid plans of mice and men oft go awry, sketches of plans and lofty marketing almost always certainly will.

Thursday, November 3, 2016

Beyond the scope of the literal words of the law

Sunport remodeling audit shows holes in Albuquerque bid process
An internal audit of remodeling work at the Albuquerque airport shows the city skirted violating the letter of its own procurement rules, but raised questions about whether Sunport and administration officials brushed past the spirit of those guidelines.

The audit, completed October 26, said there’s no language in city code or bidding rules that prohibits a decision by the administration of Mayor Richard J. Berry to turn another planned construction project into a lucrative change order for Enterprise Builders Corporation.

The administration told the Albuquerque City Council that the project had been scheduled for a competitive bid. Making it a change order avoided that process and gave Enterprise the sole chance to price out the construction work. The administration began negotiating the cost of the change order before it awarded the contract for the initial work. The work covered by the change order was entirely separate from the original job.

“By treating additional work that nearly doubled the total project cost as a change order rather than a separate project,” the audit said, “the city has caused the overall integrity of the procurement process to be questioned by the appearance of a conflict of interest.”
There is a common law concept in contracting law, usually expressly mirrored in procurement regulations applicable to government contracting, that applies to a change of quantity or price or other essential term which goes "beyond the scope" of the contract or field of competition as unenforceable. In essence, it says to allow such a change is to hold that the original contract did not fully express the agreement of the parties to satisfy contract formation requirements, and/or is unenforceable to unilaterally change the contract under "illusory" contract principles.

This rule is expressed in the federal acquisition rules as well as the American Bar Association's Model Procurement Code and Regulations. New Mexico is, I believe, a state that has adopted the ABA MPC. It is also an accepted principle of government contracting expressed in many different legal and regulatory decisions.

The facts expressed in this article, which I accept at face value for the purpose of this case study, raise high vermilion flags of blatant disregard of the concept.

For another post that similarly highlighted excuses for skirting procurement laws, see See no evil:
In Wyoming, competitive bidding is required by law for major procurements exceeding $7,500 or $20,000 for an elected official. However, by obtaining a bid waiver, officials can skirt the requirement. And, as the records search showed, they often do. Regardless, officials maintain that there is nothing nefarious about how often the waiver loophole is utilized.

In a statement, Gov. Matt Mead said his administration follows “the spirit and letter” of the law and noted that the bid waivers are publicly posted online.
The spirit, and often the letter, of the procurement law might be found in the principle of limiting the scope of the contract, or field of competition when dealing with the solicitation process, if one were to look.

Sunday, October 30, 2016

It's sticking to "the letter and spirit of the evaluation procedures" that counts

These articles, which I've sliced and diced to my own ends, discuss the ramifications of looking at bid protests from a practical, not pendantic, view point. You can read the case discussed here; you should read the full stories at the links provided, lest my version taint your perspective.

OPINION: Contractors must recognise new US procurement rules
Nothing illuminates the essential characteristics of this new era better than the Government Accountability Office’s stinging and even humiliating rejection of Boeing’s protest at the US Air Force’s decision to award the long range strike-bomber (LRS-B) contract to Northrop Grumman a year ago; the GAO’s newly-released decision offers valuable instruction for competing in this new era.

The most surprising revelation in the report is how the USAF structured the LRS-B competition. It may be the first time it has acquired a combat aircraft based on a lowest-cost, technically compliant bid. Northrop heavily invested corporate funds in classified risk-reduction efforts, a fact the GAO says played a key role in reducing the USAF’s estimated price for its proposal. As bidders line up for a host of new USAF contracts, upfront investments by contractors are essential.

It is fair to say that Boeing did not like how the USAF evaluated both proposals on cost. Boeing quibbled over which historic programmes should be used as the baseline to forecast production costs on LRS-B. According to the GAO, Boeing submitted cost data based on derivative programmes, but the USAF preferred clean-sheet aircraft developments. Boeing sent the USAF a rebuttal, but apparently used inaccurate labour cost data, which, the GAO passive-aggressively notes, “did not enhance the credibility of Boeing’s estimate”.

Despite Boeing’s multiple objections, the GAO laid out a clear case that the USAF stuck to the letter and spirit of the evaluation procedures.
Game Over: GAO Protest Reveals Cost Was Deciding Factor in B-21 Contest
The Air Force in October 2015 awarded Northrop the contract to develop and produce its newest bomber, now designated the B-21 Raider. Northrop beat out a Boeing-Lockheed Martin team for the two-pronged contract that covers the engineering, manufacturing and development phase of the program as well as the first five low-rate initial production lots.

According to the GAO decision, Boeing argued that the Air Force did not effectively measure the risk of Northrop’s bomber. The company contended that if the service had followed definitions set in the request for proposals, Northrop would not have met four out of seven unnamed technical capability subfactors. Boeing also stated that Northrop’s proposal was “inherently high risk” with regard to certain requirements in a way that should have rendered its offering unacceptable.

GAO shot down those claims, saying its review found the Air Force evaluated Northrop’s bid in a way that was “reasonable and consistent” with the RFP.

Boeing also alleged that the service overestimated the price of its own offering and relied too heavily on independent government estimates. Again, the GAO disagreed.

“We see no error in the Air Force’s rejection of supporting cost data presented in Boeing’s proposal, or its upward adjustment to Boeing’s proposed EMD costs,” it wrote.

The office noted that both Northrop’s total weighted price and total estimated price were lower than Boeing’s. Although Boeing calculated that its proposal price had been overestimated, the decision noted, even if Boeing’s proposal was adjusted by that figure, it would have not been enough to topple Northrop, which would have nabbed the contract on the basis of its lower total weighted price. Thus, GAO said Boeing could not demonstrate that the Air Force had demonstrated competitive prejudice — a situation where the company would have won the contract if not for the government mismanagement or wrongdoing.

the decision sheds light on many interesting aspects of the competition. After the companies submitted their proposals to the Air Force in 2014, the service found both offerings technically unacceptable and held eight rounds of discussions where the competitors worked through deficiencies, although the GAO noted that some risk still remained with each proposal.

Those discussions failed to resolve questions about ​both Boeing and Northrop’s cost estimates for the EMD phase of the program, which Air Force found to be overly optimistic when compared with its own independent government estimates. Even after eight rounds of talks, neither company was able to put forward a proposal that could be considered realistic with respect to the majority of the cost categories.

But while Northrop increased its own estimates, Boeing kept its own cost data at the same level, the GAO said. And, partially because Northrop offered to pay for certain expenses internally on its own dime, the company was able to keep EMD costs below Boeing’s throughout the duration of the discussion process.
How the Air Force's $55B bomber contract became an LPTA competition
Information on the bomber program is apparently a touchy subject for the Air Force, which has steadfastly refused to release the value of Northrop Grumman’s bid. The $55 billion price is based on price estimates prior to the competition.

U.S. Sen. John McCain, chairman of the Senate Armed Services Committee, has been especially vocal with his criticism that the contract is a cost-plus contract and subject to overruns that the government will be on the hook for. He has threatened to withhold funding for the bomber.

To be fair to the Air Force, initial development of the first 21 planes is cost-plus, but once the craft moves into full production of up to 100 planes the contract switches to fixed price.

In a footnote, GAO describes how Northrop’s engineering and manufacturing development costs were significantly lower than the Boeing-Lockheed proposal because of investments Northrop had made but did not pass on to the government. What those investments were is redacted from the decision and Northrop declined to comment.

Northrop also had lower labor rates and labor escalation rates. Northrop also declined to comment on how they made their labor rates lower.

Because of Northrop’s investments and lower labor rates, the independent government estimates of costs for Northrop’s proposal was lower than the Boeing-Lockheed proposal.

This is significant because both teams were deemed to be technically acceptable.
The solicitation’s selection criteria stipulated that if the higher bid was greater than 103 percent of the lower bid than the lower bid would be deemed best value. The bid by the Boeing-Lockheed team was more than 103 percent so the Air Force picked Northrop.

The argument is that this is best value because why should the Air Force pay a higher price if both proposals were found technically acceptable?

As GAO said, Northrop’s price “created a near-insurmountable obstacle to Boeing’s proposal achieving best value.”

Saturday, October 29, 2016

Good enough for government work

Pentagon Pleads With Contractors to Step Up Fight Against Industrial Espionage
It is a wide open secret that the Pentagon’s complex supplier base has become a huge target. The Pentagon’s nightmare scenario: An orchestrated campaign to not only sabotage U.S. weapon systems but also steal sensitive design data from American companies. “We see growing opportunities for bad people to get at our products,” said Undersecretary of Defense Frank Kendall, who oversees weapons acquisitions.

The security gaps have widened over time, resulting from a combination of economic and technology trends — the globalization of electronics supplies and proliferation of counterfeits, the internet of things and the widespread use of software in military systems. The prospect of malicious tampering has become all too real, said Kendall. “What is my greatest fear? That we’ll find one day when we ask our systems to do something, they won’t work.”

These issues fall under the broad category of “supply chain security,” and they have put the Pentagon in a tight spot because it has limited visibility and control of the vast web of suppliers that design and produce equipment for the military. The security gaps have widened over time, resulting from a combination of economic and technology trends — the globalization of electronics supplies and proliferation of counterfeits, the internet of things and the widespread use of software in military systems. The prospect of malicious tampering has become all too real, said Kendall.

But only in recent years has the Pentagon seen substantial data and evidence of cyber attacks, tampering and other nefarious actions aimed at the defense industry. Without naming names, Kendall said there are mounting concerns about “things that are hidden in the things that we buy.” The Pentagon is taking steps such as increasing cybersecurity training for procurement officials and is trying to raise awareness of the risks, but the overwhelming responsibility for preventing and catching bad actors falls on contractors, simply because they are the first line of defense.

Dan Payne, director of the Defense Security Service, an agency that oversees industrial security, said suppliers are stepping up voluntary reporting on suspected spying. The defense industrial base is “facing a changing threat, one we’ve never faced before, a counterintelligence threat that is unprecedented in our history,” he insisted. “It’s bigger than anything we’ve ever seen.” And it’s all happening behind the scenes,” he said. “We’re in a knife fight and most people don’t know it.”

The DSS is rethinking its internal processes for dealing with industrial espionage. Many of the agency’s methods have not changed since the Cold War, said Payne. “We’re looking at prioritizing technology we truly need to protect, and looking at the companies that are producing those technologies,” he added. “Knowing how enemies are coming at us, we are working with industry on tailored security for each facility.”

In this frightening environment, Payne told executives at the Bloomberg forum, “We have to partner with industry. The nation’s top corporations can afford to spend a lot of resources vetting suppliers, but the majority of defense vendors lack such means. The U.S. government doesn’t have the resources to fight this battle alone.”

One way foreign actors can access U.S. defense industry products and data is by buying up companies. This is a “huge issue,” said Payne. “We’re never gong to be able to guarantee the supply chain 100 percent, it’s too vast.” As globalization has taken over the economy, foreign intelligence services are using businesses to get inside our supply chains to steal our secrets, our technology.”

With a globalized work force, there is a higher risk of “insider threats” that can be even harder to tackle than digital intrusions. “At no time have our adversaries ever had the access and the ability to come from different avenues as they do right now,” said Payne. “The Chinese are very good.” Having cornered 56 percent of the consumer microelectronics industry, the Chinese are in strong position to woo U.S. companies to partner with them. “This is tough one,” said Payne. “Never before have we seen the volume of joint ventures getting into our supply chain.”

The Pentagon admittedly has limited weapons to fight back, but it is slowly gearing up, said Kristen Baldwin, acting deputy assistant secretary of defense of systems engineering. “We understand security, but it’s not in our practices and processes to think about that,” she said. “We worry about quality and reliability.”

Defense program managers have to prepare to cope with counterfeit parts, malicious tampering, reverse engineering and infected software. And as much as the Pentagon needs contractors to share information about potential threats, she said, the government also needs to be more transparent with the industry.

Baldwin suggested the answer might be to rethink how weapon systems are designed so they are less vulnerable to single points of failure. “We should think about not only where the part comes from but also whether we need to design our systems so they are not completely degraded just because we don’t know what’s in that black box.” There is no way to guarantee the performance of every single component, she said.

The Pentagon funds a small number of “trusted foundries” that produce sensitive microelectronics for exclusive government use. But the majority of electronic components found in military systems come from commercial suppliers. “The fact is that we can’t afford to shut ourselves off the global supply chain nor do we want to,” Baldwin said. “That’s technology we need for our systems.”

Read more of the story at the link above.
I was interested in the comment, "The Pentagon funds a small number of “trusted foundries” that produce sensitive microelectronics for exclusive government use." It reminded me of the early years of government contracting in the United States, up to the early 20th century. My perspective of that was informed by the excellent book, "A History of Government Contracting" by the esteemed practitioner and professor, James F. Nagle. See a review of this book here.

As I recall what he wrote, in the earliest days of manufacturing, the US government took to making its own things because there was no defense industry, as such, to speak of, and what industry there was had not mastered the process of making and assembling interchangeable parts. 

Nagle expressed the observation that the government's products, made in its own "trusted foundries", were widely admired and sought around the world. Today, we take the phrase, "good enough for government work", as a cynical statement that government cannot make anything worth its salt. But, back then, when the phrase was first used, it was an admirable statement of the gold standard. If a private supplier could lay claim to have products or services "good enough for government work", he or she could proudly peddle products any where in the world.

In a day when government is intent on outsourcing everything to private contractors, who very often have foreign ownership or other influence, we might find it useful to more often rethink the gold standard. 

Friday, September 23, 2016

Sole searching in Oakland, CA?

Courthouse News Service, which is a nationwide news service for lawyers and the news media, filed the following story. This shortened version is intended to alert you to the item and tease you to go to the sourced link and read it in full. Especially since I cut, paste, omit, edit, rearrange and paraphrase to suit the educational content and intent of this blawg; so you must read the original and not take my version of it as true, complete or accurate.

Oakland Playing Fast & Loose With Contracts, Bidders Say
Competitive bidding is meant to secure the lowest price for a project by creating competition and ensuring contracts don't go to pre-selected firms. So when an agency wants to sole-source a contract, it must justify the move internally and get it approved. If that doesn't happen, officials can use sole-sourcing to steer contracts to favored firms and exclude cheaper bidders — raising project costs that taxpayers ultimately pay.

"They're trying to convert the process from a shield-bidding process to a negotiation process and at the federal level, it's not appropriate," said Steve Sorret, an attorney with Kutak Rock in Washington and a former curriculum director for The George Washington University Law School's government contracts program. "What they're doing here certainly goes against the grain of a typical public contracting process."

In a city known for awarding fraudulent contracts, routinely sole-sourcing its projects signals entrenched problems in the way Oakland does business, and in how that affects residents. The City Council currently faces findings by the Alameda County Grand Jury that it improperly awarded a $1.5 billion trash collection contract to an unqualified recycler. The 2014 deal sent garbage collection fees skyrocketing, prompting a group of Oakland landlords to sue the city earlier this year.

And in a 2013 report, the city auditor blasted councilmembers Desley Brooks and Larry Reid for breaking the law by steering part of a $2 million contract for demolition work at the former Oakland Army Base to a friend's company after the city had already begun negotiating with another contractor. Those initial negotiations, too, were illegitimate since municipal law requires the contract to go up for competitive bids first. Brooks also negotiated three separate contracts for a teen center in East Oakland, something only the city administrator can do.

Emboldened by high-ranking officials willing to look the other way when councilmembers break the law, the Oakland City Council routinely waives its legally mandated competitive bid requirement for awarding construction contracts worth more than $50,000 and negotiates the contracts directly with firms of its choice, according to a report by the city auditor.

The council simply relies on a statute allowing it to reject bids it deems invalid — or "nonresponsive." And at a City Council meeting on Tuesday, it blessed another competitive bid waiver, this time for the $400,000 renovation of the Dimond Branch library in East Oakland. Instead, the city will approach construction firms and negotiate with them one-on-one in a process known as sole-source contracting.

But falling short of small business goals and bidding over the project price don't render a bid nonresponsive. If a bidder fulfills all of the requirements for submitting the bid, they are by definition responsive and both Greentech and Wickman satisfied those requirements.

Jonathan Wickman says the city violated its own laws in deeming his firm's proposal nonresponsive so it could justify moving to direct negotiations. "That doesn't seem legal to me," Wickman said. "They should rebid it or find more money and rebid with more money in the budget. It's not like they're left with no avenue."

Thursday, September 1, 2016

For-proift out of state company beats non-profit in state organizations to fountain of youth services funding

Youth services providers protest bidding process
Two Arkansas companies that operate seven Youth Services Division facilities submitted protests Friday to the state’s intention to award a contract to run the facilities to an out-of-state company that has said it will charge the state more than the current operators charge. Bidders have 14 days to submit a protest after learning of an alleged flaw in the process.

Every seven years, the state is required to seek proposals from organizations interested in operating the juvenile treatment and juvenile offender facilities. Department of Human Services spokeswoman Amy Webb said it has been eight years since bids were taken because of a previous one-year extension. Youth Opportunity Investments of Carmel, Ind., proposed charging the state $232 per bed per day, up from the $147 the state pays now per day for each of the 249 beds in the facilities.

Sen. Terry Rice, R-Waldron, whose district includes the Mansfield facilities, said Friday he has “a great deal of concern” about the plan to switch to an out-of-state provider at greater cost to the state. The current operators “have not received a dime’s increase in three years,” he said.

Sen. Stephanie Flowers, D-Pine Bluff, chairman of the Senate Children and Youth Committee, also said she has questions. “A lot of the intake providers have been asking for more money for years and we haven’t given it to them. It seems quite odd to have an out-of-state contract and offer them more money,” she said.
2 protest youth services contract; ‘robbed’ of fair shot, current operator’s letter to state says
Two nonprofits running seven Arkansas juvenile treatment and detention centers say state officials failed to document why a for-profit, out-of-state company will replace them, even though the new company's bid was more expensive.

Both Consolidated Youth Services Inc. and South Arkansas Youth Services, which have operated the centers for more than a decade, are challenging the decision. The operators are mostly concerned with how their proposals and Youth Opportunity's were reviewed and the quality of the new company's youth services program.

"They robbed the entire bidding process of equity," state Sen. Jeremy Hutchinson* wrote in a protest letter on behalf of South Arkansas Youth Services. The director of the Department of Human Services is currently drafting a "formal written response" to both organizations, Amy Webb, a department spokesman, said Monday.

In its protest letter, Consolidated Youth Services stated it held "no assurances" that the selection process was consistent. The state agencies did not provide individual score sheets used by evaluators to show how they weighed the proposals in each technical category and only a cumulative score was available, according to both nonprofits' letters. Evaluators appeared to have little experience in the youth services field, and there was no proof they attended training beforehand, the letters said.

Consolidated Youth Services' letter, written by attorney Debby Thetford Nye, called for a new evaluation -- one "untainted by significant procedural deficiencies and bias."

Both nonprofits said that Youth Services Division officials held post-bid discussions with Youth Opportunities Investments, even though post-bid conversations can disqualify vendors competing for a contract. The new company was also permitted to change its proposal and circumvent the criteria laid out in the state's request for services, the current contractors said.

Leaders of the Arkansas-based organizations say their programs cost less, strengthen communities and do not slash services. "We are a community program," said Jerry Walsh, chief executive officer of Magnolia-based South Arkansas Youth Services. His organization runs the Dermott Juvenile Correctional Facility and juvenile treatment centers in Dermott and Mansfield. "We know how to approach the community and how to work with them and to get them to support the program."

Youth Opportunities Investments plans to hire subcontractors from Louisiana and Nashville, Tenn., to carry out services, according to its proposal. The Youth Opportunities plan appears to dedicate fewer staff members to special education, GED and technical-vocational coursework and relies more on online learning, Walsh said.

"There is nothing in their proposal to suggest they would enhance the program," said Bonnie Boon, executive director of Jonesboro-based Consolidated Youth Services. Boon also said that she found the state's ability to find the extra dollars for the increase under the new company "curious."

Youth-services advocates have asked for additional funds for years, which Boon and Walsh said has been frustrating.

"It says a lot about their financial management and not funding youth services. Now all of a sudden you're throwing tons of money in this? Unbelievable," Walsh said.

An irresponsible determination of nonresponsibility?

Baltimore painting company sues Delaware River Port Authority over Commodore Barry Bridge bid contract
A Baltimore company has initiated legal action in a New Jersey federal court, claiming they were passed over by the Delaware River Port Authority of Pennsylvania and New Jersey (DRPA) as the lowest bidder for a $17 million contract to paint the Commodore Barry Bridge. According to a lawsuit filed by The Alpha Painting & Construction Company, Inc., DRPA “wrongfully deemed the lowest bidder ‘not responsible’ and is in the process of awarding the [bridge painting] contract to a higher bidder.”

On May 5, the DRPA first put out invitations for bids to paint the Pennsylvania Approach Spans of the Commodore Barry Bridge, which allows for travel over the Delaware River from Bridgeport, N.J. to Chester, Penn. Alpha submitted a bid for this project on June 16 in the amount of $17,886,000, which conformed to the project’s bid specifications and rendered it the lowest bidder for the project, according to the lawsuit. DRPA decided to award the bid contract to Corcon, Inc. – whose original bid clocked in at a price roughly $10.2 million more than Alpha’s.

Amy L. Ash, Acting Manager of Contract Administration for DRPA, declared that DRPA had conducted an ‘investigation’ of Alpha’s bid and found that Alpha had ‘not submitted an OSHA Form 300 or otherwise detailed workplace incidents over the past three years and the applicable Experience Modification Factors,” according to Alpha’s lawsuit.


Alpha claimed DRPA “willfully ignored the merits of the low bidder’s protest, and refused to hold a hearing on the disputed factual issues regarding this procurement, despite multiple requests to conduct such a hearing.” Alpha alleged DRPA declared Alpha ‘not responsible’ for failure to supply the documents, and rejected Alpha’s bid. The Aug. 4 Denial Letter noted that through the course of DRPA’s ‘investigation,’ it had allegedly ‘contacted Alpha’s insurance broker, Beverly Annunziatta of HMS Insurance Associates, Inc., on July 8, 2016’ and ‘offered Ms. Annunziatta an opportunity to supplement the accident experience information attached to Alpha’s bid submission, but she did not do so,” per the lawsuit.

Alpha disagreed with this contention, saying it had provided said information and pointed out DRPA never revealed what constituted its “investigation” of the bid, nor contacted it regarding any such investigation in the first place. When Alpha protested this result, the company says DRPA “denied it a hearing to resolve the outstanding factual discrepancies. DRPA contended, “DRPA was not required to make its responsibility determination within 10 business days, nor is DRPA required to hold a hearing in the event of a protest of that determination. Accordingly, Alpha’s request for a hearing is denied.”
Now, I have taken these bits and pieces from the article, paraphrased and probably distorted them to create a hypothetical case for consideration of how one might view this situation from the standpoint of Guam's procurement law, which is heavily filtered through the provisions of the ABA Model Procurement Code.

In this context: Would Alpha have the right to protest the rejection of the bid on the ground that the bidder was determined to be non-responsible? Clearly, yes.

The ABA Model Code allows any bidder who may be aggrieved to file a protest, and that protest, if not resolved mutually before adversarial processes begin, would be entitled to a hearing administratively, followed by judicial review as a matter of right. (See for starters ABA MPC §9-101, Guam 5 GCA § 5425)

But was Alpha properly determined to be non-responsible? That is a question of judgment, ultimately, and the person making that judgment is generally give a lot of latitude in making the judgment call. That said, the process of coming to that judgment must be fair and equitable under basic principles of procurement. (See ABA MPC § 1-101 and Guam 5 GCA § 5001, as well as 5 GCA § 5003: "This Chapter requires all parties involved in the negotiation, performance, or administration of territorial contracts to act in good faith.")

Under the ABA MPC and Guam's version of it, a determination of responsibility contemplates that the contract officer will conduct an inquiry. "The unreasonable failure of a bidder or offeror to promptly supply information in connection with an inquiry with respect to responsibility may be grounds for a determination of nonresponsibility...." Also the implementing regulations of both codes describe one of the many standards of responsibility as whether the prospective bidder has "supplied all necessary information in connection with the inquiry concerning responsibility".

Recognizing that the article above likely is not a true and completely accurate statement of facts in this case, but sticking to the hypothetical theme here, the only inquiry conducted was not with the bidder, but rather with a third party, and the question asked of that third party hardly fully answered the question whether Alpha's "satisfactory record of performance" was adequate.  Particularly when it is understood that even if there were some OSHA claims made as confirmed by the insurance broker, there is no indication of the severity, quantity or other circumstances of the claims. Thus, it would appear that the judgment of nonresponsibility was made without any reasonable basis or any effective inquiry.

If you have any interest in the real story and the other issues raised in it, read it at the link above.

Monday, August 29, 2016

Transparency? You can't handle the transparency!

 NOTE: As usual, I have have changed the articles reported below, leaving material out, rearranging, and paraphrasing, to suit the purposes of this blawg. The obvious purpose here is the need to have adequate and effective transparency regimes in order to have and maintain good governance, in procurement as well as other aspects of government. You must read the full articles at the links to get the accurate version of the story.

Americans pay millions to whistleblower at BHP; we hound them out of their jobs
In Australia, those who flag corruption inside companies receive limited or no protection and are often sacked or mistreated, while in the United States, which paid for evidence that exposed alleged bribery by BHP Billiton, whistleblowers are encouraged to come forward. The calls for reform are being made as Fairfax Media can reveal new details of another whistleblower case that suggests serious ethical failings by a top Australian businesswoman and ABC board member, Kirstin Ferguson.

A Fair Work Commission complaint filed by the whistleblower alleges he was "victimised as a result of the disclosures" he made to Dr Ferguson about alleged corruption at mining services giant Thiess. Dr Ferguson is a director at Thiess' parent company, Leighton Holdings (now named CIMIC), and is responsible for company ethics as ethics committee chairwoman. Dr Ferguson declined to comment on detailed questions sent to her by Fairfax Media.

Key MPs Nick Xenophon, Jacqui Lambie and Andrew Wilkie, as well as the Greens and shadow attorney-general Mark Dreyfus have all said they will push in Parliament for stronger whistleblower laws to encourage reporting of corporate corruption.

In May, the US corporate watchdog, the Securities and Exchange Commission, revealed it would pay a bounty "to a company employee whose tip bolstered an ongoing investigation with additional evidence of wrongdoing". Legal sources have confirmed that the whistleblower was a BHP Billiton insider, paid US$3.75 million (about $4.96 million). The former employee provided detailed information to US investigators about the mining firm's activities overseas several years ago. The allegations remain the subject of an active Australian Federal Police bribery investigation.

It is the first time an employee of an Australian company has received a US whistleblower bounty. Under the US Sarbanes-Oxley Act, the SEC can reward whistleblowers by giving them a cut of a fine extracted from a company, with payouts often reaching many millions of dollars.

In May 2015, BHP Billiton agreed to pay $US25 million to the SEC to settle an inquiry into trips to the Beijing Olympics that the company gave to government officials. The officials represented countries where the miner was operating, and where it was sometimes seeking government permits. BHP Billiton said in a statement that, during that inquiry, the SEC had made no findings of bribery or corrupt intent against the company, and that the US Department of Justice had investigated but took no action. The company said it was not aware of the involvement of any whistleblower as part of either investigation. "We respect and fully support protections for all whistleblowers, and the importance of providing confidential avenues for reporting," the statement said.

Senator Lambie, who has taken up the cause of a Defence Department whistleblower, said she wanted "world's best practice" whistleblower laws which would "strengthen our democracy, prevent and uncover official corruption, decrease government waste, save lives, money and prevent damage to our environment".

Shadow attorney-general Mark Dreyfus said private sector employees should enjoy the same whistleblower protection as people in the public sector because their information is "just as valuable to our community, and they should not be treated differently under the law".

"Recently a string of brave private sector whistleblowers have come forward with valuable information, including those who have exposed wrongdoing in our banking sector. They deserve our protection," Mr Dreyfus said.

Mr Day says there was merit in compensating whistleblowers, although he cautioned against aspects of the US scheme. Senator Nick Xenophon has told Fairfax Media that "whistleblowers in the US get rewarded and protected, but here they get punished and ruined". Andrew Wilkie, who was recently elected as an independent MP in Tasmania, said Australia had a cultural problem in which whistleblowers were scorned as untrustworthy dobbers, or unhinged: "In the US whistleblowers are celebrated, but in Australia they're often vilified," he said.

"Greater whistleblower protection is one of the building blocks of a healthy democracy and ... of a healthy corporate culture."

ASIC executive Warren Day believes new whistleblowing laws could provide far greater clarity and protection for employees who wanted to report a range of misconduct, spanning financial crime and environmental or health and safety breaches although he cautioned against aspects of the US scheme. Minister for Financial Services Kelly O'Dwyer said the government was looking at strengthening Australia's corporate whistleblower regime. Minister O'Dwyer said that, as it looked to strengthen legislation, the government would "follow usual process, and will consult publicly".
The 'naively noble' man who could not get his voice heard
The words, coming from the chairwoman of the board's ethics committee, were intended to be reassuring: "I'm really glad to have you in that role. I really am," she said. Dr Kirstin Ferguson was speaking to "David" (not his real name) who for more than two years had been working to stamp out alleged corruption and misconduct within his company. David was suffering stress and anxiety because he feared - with good reason - that his boss was cutting him loose.

David's faith in his company was first shaken in November 2011. As one of Thiess' more senior figures, David came across a document, signed by his boss Bruce Munro more than three years earlier, as part of the company's 2008 tender for a $5.5 billion mining concession in India.

It quickly became clear that the deal might have had at its heart a corrupt arrangement. Documents and key emails suggested that Thiess' business partner in India would be paying $12 million to powerful Indian government officials - an apparently illegal payment under Australian law.

But two weeks after speaking to her, Ferguson's reassurances meant nothing. David was given three months' notice and told to go immediately on "garden leave".

The company was Thiess, part of Leighton group, which has been implicated in among the most serious foreign bribery and corruption cases in recent Australian history. David's boss was then Thiess managing director Bruce Munro, who later left the company under a cloud.

As for the ethics committee chairwoman, Dr Ferguson: she is still there, and still in the top integrity role at the firm, since renamed CIMIC. She has since scored one of the most high-profile jobs in Australia - she was appointed by the Coalition government as a director of the ABC board, where she is a member of its audit and risk committee, the body in charge of overseeing ethical behaviour.

David declined to speak to Fairfax Media, but his full story can now be told for the first time through documents held by Thiess and CIMIC, and leaked by a source close to both firms.

In the United States, someone who came forward with information about corporate malfeasance might be paid millions of dollars. In Australia, speaking out is a shortcut to dismissal, despair and unemployment. And so far in this country, whistleblowers cannot even console themselves that the bad guys will be held to account for the deeds exposed, given the difficulty often facing police or the corporate regulator in investigating, prosecuting and punishing large companies.

Inside Leighton, some were concerned the company might have a deep ethical problem. So a new confidential internal review, Project Mango, was ordered into whether Leighton might be exposed to corruption issues elsewhere. It turned up about 100 payments made by Thiess employees in Indonesia to the country's government, military and policing officials. Not everyone appreciated the revelation.

David's boss was then Thiess managing director Bruce Munro, who later left the company under a cloud. Munro was concerned that risk and compliance activities were cramping the style of those whose job it was to win contracts in difficult markets.

"I want you to ... have a look and tell them [senior management] that there is nothing to see here ... We are tying people up in paperwork. Our processes have gone too far".

In court documents linked to the whistleblower's case, it's alleged that Munro explained to the whistleblower that the sticklers for good process inside the firm would have "never let me sign it [a deal with the Indian partner]". Alarmed at what he had seen, David escalated the emails and Leighton senior management ordered an external investigation. It was codenamed "Project Orange."

When the Project Orange investigation was completed, it suggested Leighton may need to inform the Australian Stock Exchange of a foreign bribery matter. Munro had breached the company's code of ethics and internal policies, the report found. However, there was not yet enough evidence for criminal charges.

n March 2014, as Project Mango was underway, Leighton was taken over by a Spanish group and eventually renamed CIMIC. But if anyone hoped the change of management would lead to a more open culture, those hopes were quickly snuffed. The senior executives who had commissioned Project Mango were sacked and the new bosses wanted it shut down. The story about the payments to Indonesian soldiers was reported, via a leak, in Fairfax Media. But instead of performing a mea culpa, an internal witch hunt for the leakers began.

After that, precisely nothing happened. The market was not informed. Munro kept his job.

In July 2014, Dr Kirstin Ferguson, a former flight lieutenant in the air force, an expert in safety, a lawyer, a PhD in corporate governance and a professional company director, became the head of CIMIC's ethics committee.

Two weeks after her appointment, David rang her. He wanted to meet for coffee. He asked if she knew about what had happened in India, if she was aware of Project Orange. "If I were in your position, I would want to know this," he said of the "biggest ethical issue the company has and would be the biggest ever in Australia."

"I do. I really do," she replied, adding reassuringly: "I'm really glad that we have you in that role."

But a fortnight later, David received a call from the "manager of people" at CIMIC. He was told he "hasn't made it in the restructure". He'd lost his job, and was sent immediately on three months gardening leave.

Two days later, Dr Ferguson sent David a text. To a person humiliated, isolated and sacked for trying to report wrongdoing in front of him, the message rubbed salt into his wounds.

"Hi - just wanted to let you know I have been following up on your call and will be sure to call you when done," Dr Ferguson wrote. It might take another couple of weeks, she said.

David's lawyers later argued his conversation with Ferguson should have been a "protected disclosure" under Australia's flawed whistleblower regime.

Friday, August 19, 2016

The art of the protest - Procurement controversy series, Miami, Florida

Art dealer files protest in Miami Dade College project
Miami art dealer Gary Nader has filed a bid protest against Miami Dade College after losing out on a multi-million dollar development project on campus, according to paperwork obtained by FloridaPolitics.com on Sunday. The college, which wouldn’t front any money, would give away the development rights and later get to operate the “cultural centers.”

The idea for the project began as Nader’s own unsolicited pitch to the school last May: To build a world-class Latin American art museum with his family’s name on it, which he would start up with $60 million worth of pieces from his own collection. The project has since grown into a mélange of uses because the college soon grew more interested in having a theater and conference center. Related’s plan more than halves the size of the museum that Nader had first proposed. All of the proposals include luxury residential condo towers to be sold to offset the costs of the cultural parts of the development.

Among its many allegations, the 49-page protest says winning bidder and Nader’s nemesis—developer Jorge Pérez, CEO of Related Group—lowballed the college more than $100 million in an “exceedingly low valuation” of the eventual development, which would be a public-private partnership. Nader’s protest also says the college has so far failed to respond to his lawyers’ public records requests for documents related to the review and selection process.

The protest also alleges a conflict of interest by attorney Al Dotson with the South Florida law firm of Bilzin Sumberg. Dotson, it says, advised Miami Dade College during the development bidding process but also worked for Related on a separate affordable housing project before the Miami-Dade County Commission.

The document also complains of inappropriate contacts between a Related executive and a lawyer advising the college despite a communications blackout between bidders and school officials, known as a “cone of silence.” “The evidence shows that the college promoted favoritism throughout the solicitation process,” it says. “…The ‘cone of silence’ was a moving target that continued to change, for no other reason, than to support favoritism.”

The protest document asks that all action toward the project stop until the dispute is resolved. It seeks a re-evaluation of all proposals by an “impartial evaluation committee.”
Fight over Miami Dade College’s cultural center takes more legal twists
Friday’s challenge came after weeks of legal wrangling over the price of a required protest bond and public records related to an internal college investigation.

(See prior post)
Art Dealer Gary Nader Butts Heads With ‘Condo King’ Jorge Perez Over Bid for New Miami Museum
It's a heated and highly personal battle.

It’s safe to assume that Miami art dealer Gary Nader thought his pitch to Miami Dade College for a multi-million-dollar campus development, including a 90,000-square-foot museum of Latin American art with $60 million worth of work from his own collection, would be welcomed with open arms. The proposal reportedly didn’t even require the school to put up any money; it would take ownership of the culture center in exchange for giving over a parking lot.

But when college officials—citing their status as a public institution—opened up the potential development to other proposals, and then gave top ranking to a rival bid from real estate firm Related, run by Miami “condo king” Jorge Perez of the Perez Art Museum Miami, Nader struck back. His limited partnership Nader + Museu filed a detailed 49-page formal “protest bid” on August 12, which contains nearly 400 pages of accompanying exhibits directed at Miami Dade College purchasing department, opposing an agreement with Related.

The papers claim that the agreement “failed to comply with requirements for a public-private partnership, repeatedly violated the express terms and conditions of this solicitation and offered an exceeding low valuation for the right to develop private improvements on College owned land…” It notes a $158.5 million difference between “the first and second highest ranked proposers,” calling it “astounding.” (See, Abnormally low vs unreasonably low bid)

William Riley, an attorney for Nader, told artnet News via email that there is “a statutorily prescribed opportunity to resolve the protest by mutual agreement between the parties within 7 business days after receipt of the formal written protest” filed on August 12. “We have notified the college that we are available to speak and/or meet within this timeframe. They have not responded to us.”




Monday, August 15, 2016

Need to post a $2.3 million bond in order to file a bid protest??

Fight over Miami Dade College’s cultural center takes more legal twists
a development team led by art dealer Gary Nader filed an official protest Friday challenging a recommendation that Miami Dade College’s board of trustees partner with condo king Related Group on a project to build a cultural center and residential towers downtown, perhaps foreshadowing a long legal battle over the project.

Nader’s attorneys notified the college three weeks ago of their plans to protest a college committee’s decision to score Related Group the highest among three competitors, including Nader. But unexpectedly, Friday’s challenge came after weeks of legal wrangling over the price of a required protest bond and public records related to an internal college investigation.

Last month, Nader + Museu LLP fended off the college’s arguments that the development team would need to post a $2.3 million bond in order to file a bid protest. A Miami-Dade judge allowed Nader’s team to move forward, at least temporarily, with the posting of a $100,000 injunction bond. Then on Thursday, Judge Monica Gordo rejected the college’s request to dissolve the emergency injunction
Hmmmm. The headline to this story may have been a smidgen misleading. This case, which may have begun as a protest, made its way to court where an injunction was sought. Evidently, there was no continuing automatic or other administrative stay in place.

It is common practice, when seeking injunctive relief, for a court to require posting of a bond to compensate a defendant for delay damages IF the plaintiff does not prevail on its underlying claim for damages or relief. Characterizing such a bond as a "protest bond" is perhaps misleading.

But the mere thought of a $2.3 million, let alone a $100,000 bond requirement to lodge a bid protest certainly woke me up this morning.

Friday, August 12, 2016

Outsourcing pre-judicial review of administrative processing

The following article, and the case which it reports, is not exactly about procurement. It does, though, inform the discussion about how to determine which activities of a government are legislatively determined to be governmental functions that must be performed by the government. The function in controversy here is the initial review of a contested parking ticket.

The article bringing this to light was flagged by the State Bar of California's Daily News Digest August 12, 2016, and appeared on NBC Los Angeles News online.

City of Los Angeles Ordered to Change Parking Ticket Dispute Process
The California Court of Appeal has ordered the City of Los Angeles to change the way it handles parking ticket disputes. A three-judge panel said the city can no longer outsource the handling of the initial reviews of parking tickets requested by motorists, but must do those reviews themselves. The appeals court’s decision, handed down this week, says the state vehicle code requires cities, not outside contractors, to conduct all initial reviews of parking tickets.
The case is Weiss v. City of Los Angeles. Pieces of the case reflected below are my own editorializing, and cut, rearranged, left out, paraphrased and otherwise altered and (mis)construed, as is my practice in this blawg. Thus, you are better served by reading the case in its entirely at the link.
In this appeal by the City of Los Angeles (City) and Xerox Business Services, Inc. (Xerox,) we consider whether the City, as the “issuing agency” for notice of parking violations in the City, must conduct the “initial review” of challenged citations, or whether it may delegate that duty to Xerox, its “processing agency”. [The decision in the case required interpretation of the complex statutory scheme, which had evolved over time. As is the case with many such statutory evolutions, some genes change, some stay the same and some just disappear, making the interpretation process more complex than a simple reading of a single statute might suggest.]

Weiss got a parking ticket, which he contested. After an initial review performed by Xerox, Weiss received a letter advising him that an initial review had been performed and the citation would not be cancelled. [There followed a round-about means of getting the issue before the court, interesting for those studying writs of mandate, standing and the like, but not germane to this post, which is more about the question, how to determine if a particular governmental function can to delegated to a private contractor. Thus, I limit the discussion here to:"Weiss’ claim that the initial review process, as currently constituted, did not comply with the statutory obligations of the initial review under the Vehicle Code".] Since 1985, the City has contracted with Xerox to act as its processing agency. As part of Xerox’s processing duties, the City delegates the duty to conduct the initial review of contested citations. Xerox is paid based on the number of parking citations processed per month, but does not receive additional compensation to conduct initial reviews. Xerox performs the initial reviews through its Parking Violations Bureau (Bureau), which is staffed by a subcontractor. In fiscal year 2013, Xerox conducted 135,291 initial reviews [constituting about 5% of citations processed].

The initial review is conducted by Bureau clerks, who must adhere to 46 Business Processing Rules (BPR), drafted by the City (or by Xerox and approved by the City). When considering a contested citation, the Bureau clerk refers to the applicable BPR, if any; if that BPR permits dismissal of a citation, the clerk dismisses it. If no BPR addresses the particular challenge, but a motorist has presented sufficient evidence to overcome a citation, clerks are instructed to refer the matter to a supervisor for a decision. The motorist learns the result of the initial review through one of 97 form letters drafted and approved by the City, on City letterhead, sent to the motorist by Xerox.

The trial court below concluded that, setting aside the issue whether Xerox was authorized to conduct the initial review, the City’s system of initial review complied with the Vehicle Code requirements in the scope of the review, in the fairness of its procedure to the motorist, and in the fairness of its substantive decision-making process.

The question at issue in this appeal [and this post] is whether the state vehicle code requires that the City, as the issuing agency, conduct the initial review, rather than its processing agency, Xerox. In its ruling, the court below reviewed the statutory framework, its legislative history (including pertinent existing, amended and repealed Vehicle Code sections), and case law. Conceding that the question was close, the court concluded that legislative changes in 1995 to the statutory scheme reflected the Legislature’s intent to place a nondelegable duty to perform the initial review on the City, the public agency that issues parking citations.

The 1993 revision maintained the prior definition of a “processing agency”; ‘processing agency’ means the contracting party responsible for the processing of the notices of parking violations and notices of delinquent parking violations. It also contained an amended version of section 40200.5, which preserved the issuing agency’s authority to contract with a processing agency (“an issuing agency may elect to contract with the county, with a private vendor, or [others] . . . for the processing of notices of parking violations and notices of delinquent parking violations....

Prior to the 1995 revisions, the legislation allowed an issuing agency to contract with a processing agency for the processing of notices of parking violations, including investigating the circumstances of the citation and conducting the initial review as well as giving the processing agency the authority to make the decision whether to cancel the citation.

The 1995 revisions repealed the previous statutes which had expressly provided that the processing agency may conduct initial reviews, and gave the processing agency the authority to investigate challenged citations. It enacted a new provisions assigning responsibility for conducting the initial review to the “issuing agency,” giving that agency the authority to determine whether to cancel the citation, and requiring it to inform the processing agency of its decision, further eliminating any reference to the authority of the “processing agency” to conduct the initial review.

Legislative deletion of an express statutory provision “‘is presumed to effect a substantial change in the law’ [citation].” (Barajas v. City of Anaheim (1993) 15 Cal.App.4th 1808, 1814.) Considered in their entirety, the 1995 changes strongly suggest that by repealing section 40200.7 and former section 40215, and replacing them with a new section 40215, the Legislature intended to give sole authority to conduct the initial review to the issuing agency, and to preclude delegation of that duty to the processing agency. No other rational explanation comports with the breadth of the modifications eliminating references to the processing agency’s authority.

But, the 1995 revisions did not amend section 40200.5 to directly reflect the elimination of the processing agency’s authority to conduct the initial review. Thus it remains that the issuing agency could contract with a processing agency “for the processing of notices of parking violations and notices of delinquent parking violations, prior to filing with the court...." This might be read in isolation, without considering the 1995 changes, as suggesting that the issuing agency may contract with the processing agency to conduct the initial review because that review occurs before the judicial review.

However, given the history of the relevant statutes as we have traced them, it is unreasonable to assume that by failing to amend section 40200.5, the Legislature intended to retain the authority of the processing agency to conduct the initial review and undo the changes it so clearly made in the 1995 amendments.

The 1995 changes deleting any reference to the processing agency’s authority to conduct the initial review, compel the conclusion that the issuing agency (here, the City) must conduct the initial review, and cannot delegate that duty by contract to the processing agency (here, Xerox).

There are, at least, a couple of procurement questions that jumped out at me from the case. First, recall that Since 1985, the City has contracted with Xerox to act as its processing agency, and is paid based on the number of parking citations processed per month, but does not receive additional compensation to conduct initial reviews. I cannot believe that if another contractor held the contract for processing parking citations, that Xerox (or any other contractor) would conduct the initial reviews "for free", recalling again there were 135,291 such initial reviews conducted in 2013. I wonder what the cost of doing that "free" work would be if contracted out to another party, and if that "free" work is actually paid by inflated prices or costs in the "processing" portion of the work.

Second there is an aspect of Guam Procurement Ethics law that stands out. This "free work" is given as part and parcel of getting actual paid work. It is not a gratuity as typically defined because there is nothing paid to a particular person, and no particular person is benefited. But under Guam Procurement Ethics law (5 GCA § 5630(d)):
It shall be a breach of ethical standards for any person who is or may become a contractor ... to offer, give or agree to give any employee or agent of the Territory or for any employee or agent of the Territory to solicit or accept from any such person or entity or agent thereof, a favor or gratuity on behalf of the Territory whether or not such favor or gratuity may be considered a reimbursable expense of the Territory, during the pendency of any matter related to procurement, including contract performance warranty periods.

For purposes of this Section, a favor is anything, including raffle tickets, of more than deminimus value and whether intended for the personal enjoyment of the receiver or for the department or organization in which they are employed or for any person, association, club or organization associated therewith or sponsored thereby.
Guam legislators are (most of the time, on whole) sensitive to "buy in" and bundling and other evils that diminish competition and stain the integrity of the procurement system and undermine the peoples' trust in government.



Tuesday, August 9, 2016

Texas Supreme Court allows price information in procured government lease to remain confidential

Excerpts from an Editorial in Dallas Morning News: Texas court ruling lets government keep contracts secret, inviting corruption to fester (Aug 10, 2016)
A linchpin to government accountability lies in the old admonition to "follow the money." But that's an impossible task when the law says the government -- and companies doing business with government -- can legally hide the trail.

The fallout from a June 2015 ruling by the Texas Supreme Court is becoming painfully clear as key details of government contracts, once routine items of public disclosure, are instead being withheld as guarded state secrets. (To be clear: This is not a matter of protecting business trade secrets from unfair exposure. Provisions for protecting proprietary information existed in the Texas Public Information Act prior to the Boeing decision.)

A random sampling: Costs of a Kaufman County school district's food service contract. The number of Uber drivers ferrying passengers around Houston. And, amusingly, in an anxiety-inducing sort of way, the amount the city of McAllen paid singer Enrique Iglesias for an hour-long outdoor concert to lead off its annual holiday parade last December.

All result from from a 7-1 opinion by the state's highest court, made over the objections of Attorney General Ken Paxton's office. The decision expanded the acceptable reasons for withholding information about contracts between government and private businesses.

Public accountability matters, and transparency is where accountability starts.
The withheld, non-public information in this case was certain financial terms of a 20 year lease of government property to Boeing. The Texas Public Information Act contains an exception to disclosure which applies to information "that, if released, would give advantage to a competitor or bidder.”

The Texas Attorney General had long held that this exception applies only to procurement information, and is meant to protect government interests, not private ones. The Texas Supreme Court rejected both ideas, based on the unqualified simple language of the particular code section. It also rejected the Attorney General's assertion that someone objecting to disclosure must prove substantial advantage to a competitor; the Court said "substantial" was asking too much. The Court accepted Boeing's employee's assertion that competitors would obtain an advantage by using that information to allow them to obtain better lease terms at another location, and, overruling the Attorney General's determination and the findings of the trial court, made the factual determination that disclosure of the information "would give advantage to a competitor" of Boeing.

The Court seemed particularly persuaded that
The information, which the court of appeals ordered disclosed, could not be disclosed by the Air Force under the federal Freedom of Information Act. The D.C. Circuit has rejected three such requests in the last sixteen years. See Canadian Commercial Corp. v. Dep’t of the Air Force, 514 F.3d 37, 38 (D.C. Cir. 2008) ... While disclosing bids after a contract award may rarely give competitors any advantage, the federal cases indicate that the aerospace industry is different because the disclosure of current contract prices gives competitors a distinct advantage by telling them precisely how to undercut the current contractor when contracts are re-bid. Canadian Commercial Corp., 514 F.3d at 42.
Thus, the Court comes awfully close to saying, without actually saying it, that a lease of aerospace industry lands, as a matter of law, contains information which give competitors an advantage. Perhaps, not a significant advantage, but a distinct one.

The Canadian Commercial Corp case is good authority for the Court's holding, at least in part. That case held that "line item pricing" in a government contract is commercial confidential information that fits within the exception to disclosure requirements of federal FOIA and Trade Secrets law. But, the case also said there was a requirement of a showing of substantial competitive disadvantage.
"Commercial or financial information obtained from a person involuntarily "is `confidential' for purposes of the exemption if disclosure [would either] ... impair the Government's ability to obtain necessary information in the future; or... cause substantial harm to the competitive position of the person from whom the information was obtained.""
But there is another issue, and one which is not addressed by the Canadian Commercial case, but was pointed out in its concurring opinion. If essential terms of a contract need not be disclosed because of the "specter of competition" (see this case, following Canadian Commercial), then the exception would swallow the generally recognized rule that government contracts are essentially elements of a procurement record, and public information.
TATEL, Circuit Judge, concurring (citations, etc. omitted):
I agree with my colleagues that under our reverse-FOIA case law, the Exemption 4 test applies to line-item government contract prices like the ones at issue here. Because the Air Force has merely renewed arguments we have already rejected, I join the court's decision.

That said, I believe Judge Garland had it right in his McDonnell Douglas v. Air Force dissent. Not only did he persuasively critique how the court there applied the
National Parks competitive harm test to facts closely resembling the record here, but he also rightly questioned "whether it makes sense to regard prices actually paid by the government as trade secrets `of any person' under the Trade Secrets Act or as confidential commercial or financial information `obtained from a person' under Exemption Four of FOIA." After all, given that FOIA's primary purpose is to inform citizens about "what their government is up to, it seems quite unlikely that Congress intended to prevent the public from learning how much the government pays for goods and services. Moreover, the Air Force, as its position in this case well demonstrates, would prefer to disclose contract line-item and option prices because in a competitive bidding environment such information may well save money for the government and the taxpayers who fund it. By contrast, entities whose interests lie in charging government agencies as much as possible, or in preventing others from charging less for the same services, would prefer to keep such data confidential.

Thus, applying the National Parks competitive harm test to agreed-upon prices in government contracts "may bar disclosure of such prices in the very situation in which the public interest in disclosure is at its apogee." Like Judge Garland, I find that result troubling and inconsistent with FOIA's fundamental objective. But believing the question settled in this circuit, I am compelled to join the court's conclusion that the Air Force must keep the requested pricing information free from public scrutiny.
And there's one more objection I have, if, as Canadian Commercial asserts, for information to be considered confidential, it must be involuntarily disclosed. No one holds a gun to a bidder's head making him or her compete for government business. Choosing to take part in bidding is a voluntary act. 

I note that the regulations adopted on Guam, based on the ABA Model Procurement Code, specifically say that prices, in an IFB, are not to be withheld from public inspection.