As is the case with any writer, it is never my intent to seek agreement or consensus but to stimulate intelligent and therefore meaningful discussion. Based on the response to yesterday’s post “Is Google’s recent suit against DOI based more on an entitlement mindset or a misguided understanding of transparency?,” this objective was achieved and then some.
While most comments reflected a range of sentiments that recognized the key issues I was attempting to raise in relation to the myths behind a level playing field in terms of pursuing government contracts, there were as is sometimes the case extreme responses such as on from the UK which accused me of being a communist. I can assure you dear reader that the only thing red on or about me is my eyes as a result of being allergic to our 5 cats – the fact that we have 5 cats is a story for another day.
McCarthy era accusations aside, there were some extremely interesting and useful remarks such as the one posted to this very blog by Bernard vanHaeften, who always seems to provide a powerfully concise perspective based on his extensive experience;
I would just like to pick up on two of the points that Jon raised in this blog:
1. Transparency & the ‘Level Playing Field’. I am continually surprised that public sector buyers in the UK equate one with the other. The transparency process employ should encourage bidders to participate in public sector contracts by providing clear details of what is required and how the bid will be evaluated. This does not mean that it’s a level playing field. All the bidders that participate will attempt to offer something which makes their bid more attractive – this could be cost, familiarity, or in Microsoft’s case, excellent market presence and penetration.
2. Early engagement. Jon’s comment that bidders should not wait until the RFQ is issued is well made. Those companies which engaged early generally have a better understanding of what the buyer thinks about (a) what a good supplier may look like and (b) future requirements. Understanding both these points leads us back to my first comment on the level playing field.
Many of my former colleagues were so frightened of the EU Public Sector procurement legislation that they completely disengaged from their supplier base. I believe that there is a direct correlation between this detachment and the observations made in Sir Philip Green’s Efficiency Review in which he questioned the competence of some public sector buyers.
There was also a balanced opinion delivered by Mark Amtower, expert author and radio personality whose new book “Selling to the Government” is bound to become an essential, bestselling guide to doing business with the public sector. Here are his thoughts:
Jon
I looked at the Washington Technology article on this –
and if that is accurate, and the RFQ named the Microsoft Business Productivity Online Suite in the RFQ, then Google will probably win the suit. Naming specific products is banned in the FAR.
Google has come a long way in their federal efforts, but have a long way yet to go. Relationships are key in this market, as had been pointed out many times and in many places.
BUT I think, based on what I have read, their suit will prevail.
Mark’s comment then led me to ask the following question:
. . . is the rule by which Google’s suit will prevail a good rule given the relationship factor and, ensuring best value acquisitions re what if after considerable research the decision to go with MS is based on solid research? Is forcing the issue a good thing. If yes or no, please elaborate.
This of course is where today’s post comes into play relative to legislating performance, and how it fuels the continuing concerns expressed by many government procurement experts relative to the growing talent gap. In essence, and in an attempt to create the elusive and illusionary level playing field that forces an adherence to an equalization principle versus a legitimate purchasing process in which decisions are based on merit, are we creating a “just following orders” mindset that neutralizes or at least mutes buyer ability?
I am immediately reminded of an e-mail I received from one of the senior executives from the Treasury Board of Canada which best illustrates the validity of this concern. The e-mail to which I am referring is the one I received from the now retired Executive Director, Chief Information Officer, Treasury Board of Canada, Secretariat Bob Mornan telling me that even though my questions surrounding the award of a major contract to a vendor in which their promised savings could never be achieved “may very well be true,” the primary consideration “is that the government followed bid procedures.” In short, it doesn’t matter if we get it right, just as long as we adhere to the rules, and in the process cover our behinds. Hardly the basis for making sound decisions.
As most would likely agree, any purchasing professional worth his or her salt will not embrace an environment in which their role is reduced to one that is tantamount to being an order taker – especially if it forces them to acquire goods and/or services that do not represent a true best value outcome.
The sentiments expressed in the Mornan example also highlights the fact that the “just following orders” belt with suspenders edict ultimately undermines the importance of building legitimate relationships between the buyer and suppliers that are essential to an effective selection process.
Certainly U.K.-based Colin Cram believes that the know, like and trust axiom has merit given his position that relationships are the key in preventing what he referred to as the “transparency of process” which impedes the buyers ability to achieve a “best value outcome.”
According to Cram, by pursuing the illusion of transparency at all costs represents “an appearance over value proposition” that often times results in the government awarding contracts to “suppliers who have been justified by transparency procedures” versus “dealing with suppliers who can offer best value for the money.”
This, the 30 year public sector veteran and author of the breakout paper Towards Tesco – improving public sector procurement added, is why he has “many, many examples” of what he referred to as “boneheaded, procedural procurement that doesn’t deliver a best value result for anyone, least of all the taxpayer.”
Taking all of the comments into account, it would seem that the very know, like and trust principles that are critical in the buyer – supplier relationship, is absent from the government’s relationship with its own buyers. If governments want to avoid the further proliferation of the Bob Mornan attitude within their purchasing hierarchies, they would be well advised to start focusing on the education and development of sound skill sets versus the enforcement of arbitrary rules and standards that serve absolutely no one’s best interests.
30
Procurement Insights 
Jon W. van Horne
November 3, 2010
I agree with Mark that Google has a good chance to prevail and that is not just because they are represented by friends of mine. While it is not per se illegal to specify a particular product, specifying that product must be done on a logical and factually supported basis. These days that is practically impossible to do for software systems. As I understand the technology, virtually any software product can be duplicated and few are proprietary in the sense of being protected by patents.
DOI’s problem with Google’s protest is that they may not be able to show that their selection of Microsoft was in fact based on “solid research.” Google does not have an easy burden; it is on them to show that DOI’s decision to select Microsoft was “arbitrary, capricious, an abuse of discretion or contrary to law” to paraphrase the statutory standard that Google must meet.
Jon, I agree that it is futile to “legislate performance” of procurement professionals. The statutory and regulatory structure should be expected only to set the boundaries of the playing field, not dictate the results of a particular procurement or make up for a lack of common sense. The legal structure should only be expected to prevent both parties from going to extremes that violate public policy and the public interest.
At least in the U.S. federal procurement work force, there appears to be a serious shortage of experienced and knowledgeable personnel. Making up for this lack of experienced personnel by more and more detailed rules (statutory or regulatory), in my opinion, leads to even more “arbitrary and capricious” results since common sense is pretty much legislated out of the process. That may well be what Google was facing at DOI; procurement personnel that did not have the gravitas to rein in the IT professionals who already knew what they wanted and were unwilling to follow rules that are really not all that hard to follow (although it is undeniable that a great deal of work is required to work through a competitive procurement).
However, some of that extensive work for a competitive procurement results from the IT professionals wanting to acquire broad, complex systems without really understanding what the agency needs. In effect, they are trying to push much of the requirements and definition work on to the contractor. Hopefully, OMB’s latest policy shift will, if followed by the agencies, scale IT procurements down to a more manageable level.
I see the same mindless push to complexity in the focus in recent years on schedule contracts, basic purchasing agreements and government-wide acquisition contracts. We end up with competitions to get the right and opportunity to compete for real contracts. These ordering type contract vehicles make requirements extremely hard to define and make construction of a meaningful competitive solicitation even harder. The promise of this type of contract vehicle to make procurement more efficient and simpler has, in my opinion, simply not played out as intended. It all circles back to the need for educated buyers and sellers.