Number 5: Not Letting the Client and Mediator TalkThis post is a continuation of the 10 most horrible, terrible, no good, “bang your head against the door” mistakes that I have seen lawyers make before, during and after mediations in which I was the mediator. As stated in previous posts, it takes more than throwing together a mediation statement at the last second and showing up at the mediation. Doing it right requires the same kind of due diligence and work that goes into preparing for a key deposition or even trial. Great “mediation” lawyering is essential and is the best way to get to an acceptable deal.

Number 5: Not Letting the Client and Mediator Talk

Most mediators want to hear and talk directly with the client – not the attorney – since she is ultimately going to make the decision at the end of day. Counsel, you have to jettison your ego. Do not try to cut off this vital communication. Your client may need to get something off his chest, and he finally has someone other than his lawyer at whom to vent. Mediators are paid to take it, and these direct conversations with the client are is immensely helpful for the mediator to determine the key factors to getting to a deal. Remember these are settlement discussions, and “what happens in mediation…stays in mediation.” The mediator needs to know the temperatures in all caucus rooms and many times “non-legal” factors that are not available in court determine if a deal can be done.

Many years ago, I resolved an age discrimination claim by talking directly to the client. She just wanted to move to another city to be near her grandchildren but had no money to do so.  The final deal included a year’s prepaid rent and a used car. The lawyers were not happy, but they are not a mediator’s client: the client is the Deal.

A mediator must establish a position of trust and confidence (and frankly likability) with the key client decision makers so that, when it is time to “fish or cut bait,” the clients will listen to what the Mediator has to say. That cannot happen when the lawyer does all of the talking, and the client just sits there mute like a house plant. Good mediators will not let that happen, even if that means hauling the lawyer out of the caucus room and having a stern discussion.

Read numbers 6789, and 10 on the list.

The Department of Defense (DOD) recently promulgated a final rule limiting the DOD’s ability to use the Lowest Price Technically Acceptable (LPTA) method of procurement. The final rule — which took effect on October 1, 2019, and applies only to DOD procurements — is codified at section 215.101-2-70 of the Defense Federal Acquisition Regulation Supplement (DFARS).

What is LPTA?

The LPTA method is a competitive negotiation source selection process where the non-price factors of a proposal are evaluated to determine which proposals are “technically acceptable,” and an award is then made to the “technically acceptable” offeror with the lowest price.

What does the final rule say?

Under the final rule, the LPTA “source selection process shall only be used” by the DOD when:

  1. Minimum requirements can be described “clearly and comprehensively and expressed in terms of performance objectives, measures, and standards” that will be used to determine the acceptability of offers;
  2. No, or minimal, value will be realized from a proposal that exceeds the minimum technical or performance requirements;
  3. The proposed technical approaches will require no, or minimal, “subjective judgment” by the source selection authority as to the desirability of one offeror’s proposal versus a competing proposal;
  4. The source selection authority has a “high degree of confidence” that reviewing the technical proposals of all offerors would not result in the identification of characteristics that could provide value or benefit;
  5. No, or minimal, additional “innovation or future technological advantage” will be realized by using a different source selection process;
  6. Goods to be procured are “predominantly expendable in nature, are nontechnical, or have a short life expectancy or short shelf life;”
  7. The contract file contains a determination that the “lowest price reflects full life-cycle costs (as defined at [Federal Acquisition Regulation] 7.101) of the product(s) or service(s) being acquired;” and
  8. The contracting officer “documents the contract file describing the circumstances justifying” the use of the LPTA source selection process.

Importantly, the final rule also states that contracting officers “shall avoid, to the maximum extent practicable,” using the LPTA method in the case of a procurement that is predominately for the acquisition of:

  1. Information technology services, cybersecurity services, systems engineering and technical assistance services, advanced electronic testing, or other knowledge-based professional services;
  2. Items designated by the requiring activity as personal protective equipment (but see DFARS 215.101-2-70(b)(1)); or
  3. Services designated by the requiring activity as “knowledge-based training or logistics services in contingency operations or other operations outside the United States, including in Afghanistan or Iraq.”

Moreover, the final rule imposes a per se prohibition on the use of the LPTA method for procurements of:

  1. Items designated by the requiring activity as “personal protective equipment or an aviation critical safety item, when the requiring activity advises the contracting officer that the level of quality or failure of the equipment or item could result in combat casualties;”
  2. Engineering and manufacturing development for “a major defense acquisition program for which budgetary authority is requested beginning in fiscal year 2019;” and
  3. Auditing contracts.

What are the key takeaways?

The final rule — which took effect on October 1, 2019, and applies only to DOD procurements — restricts greatly the circumstances under which the DOD may use the LPTA source selection process. Accordingly, contractors should be on the lookout for improper inclusion of the LPTA method in DOD solicitations, as well as DOD misuse of the LPTA method during proposal evaluations. The former situation may give rise to a pre-award bid protest — which generally must be filed before the closing time set for receipt of initial proposals — and the latter situation may give rise to a post-award bid protest — which generally must be filed within a very tight timeframe after contract award.

Wait, I have more questions!

If you have any questions about this noteworthy development or any related issues, please do not hesitate to contact Aron Beezley.

GSA Issues Solicitation Merging 24 Multiple Award SchedulesOn October 1, 2019, the General Services Administration (GSA) issued its much-anticipated consolidated schedule solicitation, merging 24 multiple award schedules (MAS) into a single schedule for products, services and solutions. (See GSA announcement.)

Under MAS (also commonly referred to as Federal Supply Schedules and the GSA Schedules), the GSA “establishes long-term, governmentwide contracts with commercial firms offering more than 10 million commercial supplies and services that federal, state and local agencies order directly from GSA Schedule contractors, or through the GSA Advantage!® online shopping and ordering system,” according to the GSA.

The GSA’s issuance of the consolidated schedule solicitation represents the initial phase of MAS consolidation. The GSA reports, “At this time, only new contracts will be placed on the consolidated schedule solicitation, which streamlines and simplifies the order process for new contractors. Contractors already on Schedule will not be affected by the new solicitation until the mass modification takes effect in calendar year 2020.”

Further, the GSA states, “Federal agencies should see no disruptions to their purchasing practices during the transition.”

According to the GSA, “The MAS transformation is part of GSA’s Federal Marketplace strategy to make the government buying and selling experience easy, efficient and modern. It supports GSA’s strategic goal to establish the agency as the premier provider of efficient and effective acquisition solutions across the government.” (See previous Bradley blog post.)

The GSA reports that approximately $31 billion dollars is spent through MAS each year.

If you have any questions about how this noteworthy development may affect your company, please do not hesitate to contact Aron Beezley.