A failure in contracting

For those who don’t know the story, Relisha Rudd, an 8-year-old girl living at DC’s homeless shelter, is presumed murdered. She was abducted by a shelter janitor in 2014; authorities believe he also killed his wife. His body, too, has been found. Rudd’s has not.

The Community Partnership operates DC’s continuum of care, including the shelter, under contract with the District’s Department of Human Services. In addition to this failure, a 2015 DC auditor’s report found significant deficiencies in financial controls at the Partnership in violation of DC and federal law.

So, imagine my surprise, when tooling around LIMS this January, to see council consent on nearly $100 million in contracts to the Community Partnership.

I went full-council-press, and learned the contract included strengthened requirements for “quality control” and that no other offeror was found competent enough to receive the contract.

How the Community Partnership could be found competent was not explained.

As I wrote to another councilmember, the time for such conclusions is not source selection; it’s acquisition planning. If no one organization can operate the continuum of care, the work should be split up after careful risk assessment into performable contracts. If DHS cannot take a program management approach to multiple contracts, it should hire a highly qualified firm to do so, and to help the department build capability and capacity in-house.

Sometimes failures in contracting are amusing for their ridiculousness. I roll my eyes and trace the alternate paths in my head. But this time, I’m outraged and reminded that what we do is important. Please, let us do it well.

COFC: Kingdomware not dispositive

Much has been made, in govconland at least, of the Supreme Court’s findings in Kingdomware, in which the court found that the Veterans Benefits, Health Care, and Information Technology Act of 2006 required the application of the “rule of two” to GSA Schedule orders. The act, which applies only to the VA, requires the department to set aside contracts for veteran-owned businesses when two or more could perform at fair and reasonable prices (the so-called rule of two).

In Great Southern Engineering v. U.S. and K.S. Ware & Associates, the plaintiff, GSE, argues a NASA solicitation that considers an IDIQ contract and its task orders as one “project” for purposes of past performance violates the Supremes’ decision that task orders are contracts.

Not so fast, says the Court of Federal Claims. What makes a Schedule order a contract? “A Federal Supply Schedule order creates obligations to pay for and deliver goods between the agency and the contractor.” Generally, task orders create the same obligations. However, the Supreme Court “held that the agency’s interpretation did not warrant deference because a statute, not an agency decision, was the subject of interpretation.”

“The protest currently before the Court does not involve an FSS order and NASA is not subject to the Act at issue in Kingdomware” (the Veterans-First legislation). “The interpretative issue in this case involves a solicitation, not a statutory provision….In short, Kingdomware is not dispositive” and “does not stand for the general proposition that all task orders are considered contracts as a matter of law.”