3/25/2014 1 SAC PC CHAIRPERSON’s READOUT - PowerPoint Presentation

3/25/2014 1

SAC PC CHAIRPERSON’s READOUT SAC PC WHAT DO WE DO SUCCESSES SINCE MARCH 2013OPPORTUNITIES TO SHARE INFORMATIONPROTEST TRENDSORAL PRESENTATION TRENDS3/25/2014 Presented by Jim Blades, MCC

SAC PC WHAT Information Sharing Contracting with Intent Awareness Collaboration Staying Current Leveraging Contributing Guidance on Applicability Staying Compliant Challenges Open, Honest, Often Approach Participation 3/25/2014 3

Still Strong attendance in bi-monthly meetings especially in the FAITAS arena – Average Attendance 3/25/2014 Information Sharing Awareness Collaboration Staying Current Contributing Open, Honest, Often Approach Participation 4

REGULARLY SCHEDULED MEETINGS 3/25/2014 5

Successes through Sharing Every other month SAC PC meetings continue – one canceled due to ShutdownAPRIL 2013 CAAC Chair – Rule Making Process and Open FAR Case Status Report New FSSI Desktop Publisher Licensing Initiative, anchor-tenants MCC De-Obligation of Excess Funds and Close-Out Process Shared Best Practice Key Tenants of a successful contracting organization – 2 Agencies Shared June 2013 Documents shared now housed on FAI and OMB Max websites OFPP Administrator Joe Jordan, discussion with the SAC PC CFPB shared best practices in “Creating a New Federal Procurement Office” August 2013 Joint SAC PC and SA CIO Council (SACC) Meeting moderators from US Access Board and Co-Chairs of SACC – discussion on a host of topics and how we could work together Co-Chairs Accessibility Committee, Section 508 and willingness to share best practices October 2013 – CANCELLED DUE TO SHUTDOWNDecember 2013FAI led discussion on FAC-C/DAWIA alignment and FAITAS implications and updates, practical tips for ACMS, changes to FAITASPIF shared on new tools via GSA, RFP-EZ, prices paid portal, FBOpen, SOW Library, and Proposal EvaluatorOpen Dialogue led by SAC PC chairperson on open, honest and often collaborationFebruary 2014OFPP UpdatesGSA, FSSI latest awards and what is underway, sharing information across agencies OMB Deputy Comptroller provided OMB perspective on 2nd Term Agenda, Priorities, Initiatives 3/25/2014 6

FAITAS Success Super User ACM implementation by SAC member agencies - in June 2012 we had 1,100 active in FAITAS for SAC member agencies. As of March 2014, it is 3,369 (206% increase). All Documents now housed and shared on Resources in FAITAS ( and OMB Max ) FAITAS added links and groupings to FAI for ACM purposes Challenges around regular ACMs in each small agency performing duties before Super Users get involved3/25/2014 7

SUCCESS in the WAY OF AUGMENTED OMB GUIDANCE As OFPP and OMB policy memorandums are disseminated, small agencies often struggle to interpret how they impact or are applicable to their small agencies. We’ve seen some discernment from OMB/OFPP in recent memo’s that are helpful in that regard, For instance, Memo on “Improving the Collection and Use of Information about Contractor Performance and Integrity” earlier this month, calling for CFO Act agencies to establish a baseline for reporting compliance, set aggressive performance targets to monitor and measure, and ensure their workforce is trained. A footnote in the memo states “ small agencies are encouraged to establish targets and strategies as well ”. 3/25/2014 8

OPPORTUNITIES TO SHARE INFORMATION Along with the roll as chairperson, I hold a position as a member on the board of directors of the Federal Acquisition Institute, which gives the SAC a voice in the forum for acquisition workforce development, as well as, a seat at the tables for the CAOC and CAAC.Continued Email collaboration and sharing on a host of topics, OMB/OFPP guidance, direction and information MCC Shared its independent lease authority experience with PBGC, OPIC, & NLRB Speaking at various events and conferences with a SAC PC voice Panelist on the Federal Executive Track at the ACT-IAC Acquisition Excellence Conference: The Intersection of Innovation and Transformation March 2013 FAI Webinar – SAC PC Chairperson interviewed by Associate OFPP Administrator for Workforce Development May 2013 NCMA Interview/Article October 2013NCMA Annual Conference Panel of SAC PC Executives: MCC, RRB, CFPB, SEC, Holocaust Museum November 2013 NCMA Tysons Chapter Meeting March 2014 3/25/2014 9

3/25/2014 REPORT FOR FY 2012 and PRIOR Same Report NOT yet out for FY 2013 data 10

2013 Protest Trends 3/25/2014 11

Bid Protest Statistics for Fiscal Years 2009 - 2013 3/25/2014 The GAO has received near-record numbers of protests during the past few years, and the number of bid protests filed at GAO has more than doubled during the past 10 years. GAO saw a slight dip in 2013, receiving 2,429 new cases in 2013 after receiving 2,475 in 2012, but that decline was the first in six years for GAO. 12

Footnotes 3/25/2014 1 CASES FILED: All entries in this chart are counted in terms of the docket numbers (“B” numbers) assigned by our Office , not the number of procurements challenged. Where a protester files a supplemental protest or multiple parties protest the same procurement action, multiple iterations of the same “B” number are assigned (i.e ., .2, .3). Each of these numbers is deemed a separate case for purposes of this chart. Cases include protests, cost claims, and requests for reconsideration. 2 CASES FILED down from the prior fiscal year [2012]. CASES CLOSED: Of the 2,538 cases closed in FY 2013, 259 are attributable to GAO’s bid protest jurisdiction over task or delivery orders placed under indefinite-delivery/ indefinite-quantity contracts. EFFECTIVENESS RATE: Based on a protester obtaining some form of relief from the agency, as reported to GAO, either as a result of voluntary agency corrective action or our Office sustaining the protest. This figure is a percentage of all protests closed this fiscal year. 5 Alternative Dispute Resolution. ADR SUCCESS RATE: Percentage of cases resolved without a formal GAO decision after ADR. 7 Percentage of fully developed cases in which GAO conducted a hearing; not all fully-developed cases result in a merit decision. 13

Number of Bid Protest Cases Filed With GAO 3/25/2014 According to data provided by GAO, in FY2012, agencies sought to override CICA stays in 33 procurements (2% of procurement protests). See GAO Bid-Protests: An Overview of Its Timeframes and Procedures 14

GAO Protest Sustain Rate (%) 3/25/2014 15

Effectiveness Rate (reported)   (%)3/25/2014 The percentage of protesters obtaining relief—either through a protest being sustained or through voluntary action taken by an agency—is called the effectiveness rate . Thus, the effectiveness rate may be a rough measure of the number of protests that have actual or potential merit. Only those where agencies reported are counted here. Average 42.8% If GAO decisions are sufficiently predictable to allow agencies to determine how GAO will rule in a given situation, agencies may be more likely to voluntarily take corrective action than wait for GAO to sustain a protest . May be why it remains relatively stable hovering around 43%. 16

Comparison of Protests Filed to Rate of Protests Sustained 3/25/2014Appears that a slight decreases in 2011 and in 2013 track from decisions to rate 17

Most Prevalent Grounds for Sustaining Protests in 2013 3/25/2014 failure to follow the solicitation evaluation criteria 2 ; inadequate documentation of the record 3;unequal treatment of offerors 4 ; unreasonable price or cost evaluation. 5 18

Footnotes 3/25/2014 19

Summary Comments on Filing Trends and Success Rates As government contracting continues to become more competitive in response to shrinking budgets for federal contracts, more disappointed offerors are pursuing bid protests to protect their interests. After climbing rapidly through the mid-2000s, federal government spending on contracts reached a high of almost $550 billion in FY 2009 and has declined to about $456.2 billion in FY 2013. FY 2013 figures are down from FY 2012 spending of $512 billion. Despite a reduction of roughly 11% from FY 2012 to FY 2013, protest cases filed have only decreased by 2%. As contractors fight to maintain their piece of the federal procurement budget, they are looking to understand their options for challenging agency procurement decisions through bid protests . Filing Trends: Although the number of GAO protests continues to rise, the rate of increase has tapered off in recent years. In FY 2013, GAO saw 2,429 protests filed, compared to 2,475 in FY 2012, 2,353 in FY 2011, 2,229 in FY 2010, and 1,989 in FY 2009. By contrast, the Court of Federal Claims hears a relatively stable number of protests each year. Between FY 2005 and FY 2010, only 454 protests were filed before the COFC.Success Rates: Along with the noted decrease in GAO protest filings, the sustain rate has remained relatively stable, dropping slightly in FY 2013 by 1.6%. In FY 2013, GAO sustained 17%, compared to 18.6% in FY 2012, 16% in FY 2011, 19% in FY 2010, and 18% in FY 2009. Although these figures may seem low, GAO tracks this data only on protests where GAO issues a formal recommendation. As such, GAO’s statistics fail to account for protests in which a protestor successfully obtains corrective action from an agency, which is not always reported. 3/25/201420

Potential Changes to GAO’s Handling of Protest Despite the steady state of protest filings, GAO continues to maintain a semi manual docketing system. GAO’s FY 2014 budget request asked Congress to provide GAO the authority to collect a filing fee for protests so that it could fund development, implementation, and maintenance of an electronic docketing system.With the omnibus spending bill signed into law on January 17 th , the GAO was required to “establish and operate an electronic filing and document dissemination system” for bid protests, with the option of charging a fee to establish and operate the electronic system. Estimates of $250 dollars for such a fee, while more expensive than a postage stamp, is not enough to likely to dissuade most contractors from filing a protest. GAO stated in late January it is working to develop a new online docketing system and will charge a fee on new protests in order to support the system. An electronic docketing system would have the added benefit of making GAO protests more transparent. The current electronic docket was not made to support the increasing level of public interest in bid protests — docket entries were initially designed to expire within a year, but now the GAO faces more and more requests for information about older protests. 3/25/201421

Oral Presentations as part of Solicitations – some GAO cases In TDS, Inc., B-292674, Nov. 21, 2003, the GAO for the first time warned that as soon as agency personnel begin speaking at an oral presentation, "that dialogue may constitute discussions ," thus triggering an obligation to advise all offerors of their deficiencies and significant weaknesses and allow responses. The decision in  TDS put agencies on notice that the GAO would not necessarily go along with self-serving solicitation characterizations of the question-and-answer sessions at oral presentations as "clarifications ." If agencies want to ask substantive questions and receive meaningful answers at oral presentations, chances are they will be engaging in discussions . Cautionary note: Agency questions during oral presentations could be interpreted as discussions . In Global Analytic Info. Tech. Servs., Inc., B-298840.2, Feb. 6, 2007, 2007 CPD ¶ 57, GAO held if agency personnel comment on, or raise substantive questions about a proposal during an oral presentation, and afford an opportunity to revise a proposal in light of the agency's comments, then discussions have occurred. In Gulf Coast Petroleum Reserve Operations, LLC, B-409004.2, B-409004.3, B-409004.4, B-409004.6 , dated January 24, 2014 Gulf Coast Petroleum Reserve Operations, LLC (GCPRO), of Springfield, Virginia, protests the Department of Energy’s (DOE) award of a contract to Fluor Federal Petroleum Operations, LLC, of Greenville, South Carolina, pursuant to request for proposals (RFP) No. DE-SOL-0003490 to provide management and operating (M&O) services for DOE’s strategic petroleum reserve (SPR). GCPRO challenges the agency’s evaluation under various evaluation factors [most were via Oral Presentations] and complains that the agency failed to consider an alleged organizational conflict of interest. We deny the protest. The agency utilized oral presentations properly. 3/25/2014 22

A search on WIFCON reveals the following cases RE Oral Presentations 23 Brooks …An express designation of an oral presentation factor is not necessary as a separate evaluation factor so long as the government stipulates that information from oral presentations will be used in the evaluation of offerors . Metcalf …the time delay of memorializing notes from oral presentations does not diminish the use of that information in evaluation of offerors . Sierra …once agency personnel begin speaking in oral “presentations”, rather than merely listening, that dialogue may constitute discussions. RVJ …irregularities in the conduct of oral presentations via the contracting officer not in attendance during the entire session nor is the mere complaint that oral presentations were not considered without justification by vendor, neither constitutes wrongdoing TDS… Once the agency begins speaking, rather than merely listening, in oral presentations, that dialogue may constitute discussions.T Square…the agency lacked a reasonable basis for a selection partly based on oral presentation information for a best value trade offChecchi…FAR does not require a particular method of establishing a record of what was said or occurred during oral presentations, just that an agency maintain a record adequate to permit meaningful review

Procurement Regulations and Best Practices Federal Acquisition Regulations – Oral Presentation FAR 15.102 (Oral Presentations) FAR 15.208 (Submission, Modification, Revision and Withdrawal of Proposals) FAR 15.306 (Exchanges With Offerors After Receipt of Proposals) FAR 15.307 (Proposal Revisions); and OFPP Best Practices for Multiple Award Task and Delivery Order Contracting - Oral Presentations Best Practices: Consider using oral presentations to reduce lead time and contractors’ proposal preparation costs. Plan ahead for oral presentations to allow sufficient time for scheduling of conference room space and evaluators attendance. If written presentations as part of technical proposals are required, use page limitations. Consider video taping oral presentations to accommodate varying schedules of panel.3/25/2014 24

Oral Presentations – best practices continued Per FAR 15.102, a solicitation may require or permit, at the agency’s discretion, oral presentations as part of the proposal process. a. Offerors may present oral presentations as part of the proposal process . See NW Ayer, Inc., B-248654, Sept. 3, 1992, 92-2 CPD 154 . They may occur at anytime in the acquisition process and are subject to the same restrictions as written information regarding timing and content. FAR 15.102(a). When oral presentations are required , the solicitation shall provide offerors with sufficient information to prepare them. FAR 15.102(d). The following are examples of information that may be put into the solicitation: (1) The types of information to be presented orally and the associated evaluation factors that will be used; (2) The qualifications for personnel required to provide the presentation ; (3) Requirements, limitations and/or prohibitions on supplemental written material or other media; (4) The location, date, and time; (5) Time restrictions; or (6) Scope and content of exchanges between the Government and the offeror, to include whether or not discussions will be permitted. Id. b. The method and level of detail of the record of any oral presentation is within the discretion of the source selection authority. FAR 15.102(e). While the FAR does not require a particular method of recording what occurred during oral presentations, agencies must maintain a record adequate to permit meaningful review. See Checchi & Co. Consulting, Inc., B­285777, Oct. 10, 2000, 2001 CPD 132. (Practice tip: video recording of oral presentations helps capture both audio and visual portions of the presentation and creates a record that it is helpful to refer back to when evaluating proposals and defending any protests.). c. When an oral presentation includes information that will be included in the contract as a material term or condition, the information must be reduced to writing. The oral presentation cannot be incorporated by reference. FAR 15.102(f). 25

Final Thoughts Small Agencies need help with…  Continued indication by OFPP of when SAC member agencies (not CFO Act Agencies), while encouraged, are not required to comply with a particular OMB/OFPP policy directive or memorandum - if for nothing else to relieve anxiety. SPEs of small agencies should self-police to ensure our intentions are to be as proactive as practicable – moving towards best practices. Continue the efforts to increase the types of commodities and services for future Government-wide Strategic Sourcing Initiatives, but with an emphasis on the spend and volumes applicable to small agencies. Leveraging particular Initiatives for small agencies as we do not have the resources to evaluate our collective spend, or develop our own strategic sourcing initiatives. Some help on ensuring the Government Service Providers (GSP) are managing the work for the small agencies on par with their large agency customers. Service Level Agreements, costs for services, and accountability and responsiveness to issues should be strengthened. If large agencies are conducting small business or industry day outreach events, think to invite small agencies with similar missions to the party, e.g., State Department and USAID invite the MCC to theirs. Leveraging the infrastructure and targeted SB audience is critical for Small Agencies to meet their SB goals and outreach initiatives. This could include industry days. This takes some effort on the part of small agencies to reach out for this kind of partnership. 3/25/2014 26