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Apogee Consulting Inc

Dunning-Kruger Strikes Again (Part 2)

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In the first part of this story, we related how Rocko’s company hired Apogee Consulting, Inc. to help them navigate the rough waters associated with FAR Part 15.403 and FAR Table 15-2. We were referred to Rocko but problems quickly developed. Among those problems was a looming schedule conflict. Rocko was going to be out of the country for several weeks and Ed was going to take a two-week vacation. Things looked problematic until Ed called the prime contractor and obtained schedule relief. We all agreed that, while Rocko was away, his staff would work on the detailed estimates. As data was developed it would be reviewed by Apogee Consulting, Inc. for compliance. When Ed was away, Rocko would review the detailed estimates and apply “management judgment” to the pricing.

At least, that’s what we thought we all agreed to.

Despite several attempts by Ed to get insight into how the detailed estimates were going, we ran into a seeming brick wall. Phone calls went unreturned, as did emails and even text messages. Ed and I began to suspect that the staff wasn’t actually working on anything, despite their apparent enthusiasm at our in-person meeting and despite their acceptance of action items. We began to get the idea that nothing would be done without Rocko’s hands-on participation. And he was out of the country. Or was soon to be out of the country. It was not exactly crystal clear where he was and what he wanted us (and his staff) to be doing on the project.

All we could do – and we did it, over and over – was to send emails pointing out that Ed was going to be out of pocket very soon, for about two weeks. If he couldn’t review anything before his vacation, it was going to have to wait until his return. As was becoming the norm with this client, we received no response to our (multiple) emails on the topic of scheduling.

Ed took off for his planned vacation having reviewed nothing. We had no idea whether the client had done anything at all. From what little info trickled to Ed, we got the sense that Rocko had decided (despite our advice to the contrary) to hold the line on the competitive quote he had submitted several weeks before hiring us—regardless of whether he could justify a higher price in the sole-source environment.

Folks, it’s tough to add value when the client refuses to take your advice.

Thinking that Rocko must have returned from his European trip, I reached out to him in Ed’s absence. I tried a couple of emails, with nothing coming back. Not a good sign.

At this point I noticed that Rocko hadn’t yet paid our first invoice. Readers of the blog know (or should know) that our standard payment terms are 15 days after receipt of invoice. Fifteen days may seem like a quick turn, but it’s what the DoD expects from its prime contractors with respect to small business subcontractors—so it’s become our expectation. We make exceptions from time to time, but this wasn’t one of them. Rocko had signed our standard engagement letter contract specifying payment 15 days after invoice receipt. And he was now at 30 days and climbing. So I started nagging him about that, as well. Similar lack of response.

Nothing regarding project status and nothing regarding payment. The tone of my emails got a bit more strident.

Finally I got this email in response to one of mine—

I'm now back [from Europe] as of today. I will speak to accounting tomorrow regarding your invoice. I have a [prime contractor] analyst arriving at 8 am on Wednesday. If you would like to be included that would be great. My problem with our start has been the following: I only need one not two experts. I'm not sure where Ed fits in. If either of you has time Wednesday we begin at 8am. We need to get back on track.

Again: communication problems. To say our wires were crossed would be a polite way of putting it.

  1. We had previously agreed—and had gotten buy-in from the prime—that we would slip the original schedule to give Ed and Rocko a chance to review the inputs. Now Rocko was telling me—with 48 hours advance notice—that he had scheduled a meeting with the prime.

  2. What was the analyst going to do? I had no idea. Ed had no idea. And Rocko wasn’t saying. We had no strategy, no plan, and (as far as I knew) no work product. Normally, I would expect the interaction to be a bit of a disaster.

  3. Rocko knew that Ed was out of town and could not support the meeting. He scheduled it anyway.

  4. I couldn’t support the meeting, which was why Ed was the lead on the project. A fact that had been made very clear to Rocko (or so I thought). Rocko didn’t have two experts; he had Ed and I was backing-up Ed while he was on vacation. Another fact that had been made very clear to Rocko.

  5. The sentence “We need to get back on track” was troubling, to say the least. Ed and I had just spent the past month trying very hard to move the project forward, with little or nothing to show for it.

What does one say to that mishmash of misinformation? I tried to put a positive spin on my response, but even as I typed the response to Rocko, I knew in my heart that it was too late to affect anything. Dunning-Kruger had struck again and this project was going to crater.

Ed returned from vacation later that week and, before he did anything else, we talked about strategy. We figured our best bet was for Ed to call/text/email Rocko as if everything was fine. Rocko replied to Ed’s text, letting us know that he had successfully negotiated the FRP contract and the project was over. And our check would be in the mail in 10 days.

How Rocko had successfully negotiated a price will remain forever a mystery. It is likely that he was unable to prepare a bottoms-up cost estimate in the required FAR Table 15-2 format. It is near certain that he didn’t have anything approaching FAR-compliant indirect rates. Apparently a deal was struck and the prime contractor was satisfied.

The only theory I can think of is that the prime went back to the old RFQ and decided that competition had actually been achieved even though there was only one actual bidder. There are a couple of seldom-used FAR loopholes [found at FAR 15.403-1(c)(1)] that state—

A price is based on adequate price competition if …

  1. There was a reasonable expectation, based on market research or other assessment, that two or more responsible offerors, competing independently, would submit priced offers in response to the solicitation’s expressed requirement, even though only one offer is received from a responsible offeror and … Based on the offer received, the contracting officer can reasonably conclude that the offer was submitted with the expectation of competition. …

  2. Price analysis clearly demonstrates that the proposed price is reasonable in comparison with current or recent prices for the same or similar items, adjusted to reflect changes in market conditions, economic conditions, quantities, or terms and conditions under contracts that resulted from adequate price competition.

(Note we’ve renumbered and edited the FAR subsection for clarity. If you want the exact verbiage and all the rules associated with the loopholes, you need to read FAR 15.403-1(c)(1) very carefully.)

Thus, it may well be possible that the representative of the prime contractor was able to use one of those two loopholes to find an exception to the requirement to submit certified cost or pricing data, so long as Rocko was willing to hold to his original quoted price. We don’t know that’s the case; but we also don’t know it wasn’t the case. And we don’t know how much money (if any) Rocko left on the table by sticking with his original quote.

The point of this story is that Rocko knew what he wanted and he wasn’t going to let any self-proclaimed SME’s get in his way. All our experience and knowledge meant nothing to Rocko, because there was no upside for him. So long as he was going to hold his original pricing, there was no possible value we could add. Even if we were right and he could have charged more because his subcontract award was a lock, all that would have done is make him look bad to his staff.

Meanwhile we are still waiting for Rocko’s payment, now 60+ days overdue.

 

Dunning-Kruger Strikes Again

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Reference is made to a prior blog article on the topic of the Dunning-Kruger effect, defined by Wikipedia as “a cognitive bias in which low-ability individuals suffer from illusory superiority, mistakenly assessing their ability as much higher than it really is.” We concluded that prior article by providing the following advice:

So, dear readers, try to be aware of The Dunning-Kruger Effect (and other cognitive and social biases) and mitigate it by recognizing the limits of your own expertise. Don’t try to leave the bounds of what you know and ‘wing it’ by guessing about what you don’t really know. Hire subject matter experts, and listen to them.

That’s not to say that all self-proclaimed subject matter experts are equal, or that they are all worthy of veneration. The fact is, you must do your due diligence on the consultants you hire, the same way you do your due diligence on the employees you hire.

If you are aware of your limitations, and think you’ve picked the right business advisor—then listen to what your advisor tells you. And do it.

Recently we were ambushed once again by the D-K effect. We saw it coming but we still walked right into it. All the warning signs were there, but we brushed them off. Mind if we share the story with you?

Picture a small business, a pretty successful one. It has a multi-faceted business model, selling its products commercially and (with modification) to prime defense contractors. It enters into firm, fixed-price, subcontracts at values below the threshold at which certified cost or pricing data would be required. It performs its job well and delivers high-quality products on time with minimal (if any) change order nonsense.

The General Manager – let’s call him “Rocko” – runs a tight ship and he’s a very nice man. His employees like him a lot. For one thing, he lets the office staff bring pets into the workplace. But make no mistake: it’s Rocko’s ship and he runs it his way. His way has been pretty successful and it has kept a lot of people employed.

The company successfully developed a derivative of its primary commercial product for one of the prime defense contractors and that prime successfully walked its program through Milestone Decision Authority reviews, moving from Low-Rate Initial Production (LRIP) to Full-Rate Production (FRP). In support of the FRP contract, the prime wanted to award Rocko’s company a FFP subcontract for one year plus four options. The total value of the award was in excess of $750,000. Unless the prime was going to compete the subcontract, Rocko’s company was going to have to prepare, submit, and negotiate its very first cost proposal in the FAR Table 15-2 format and disclose certified cost and pricing data. And they had no clue about any of that stuff.

Rocko’s company had developed the product and successfully tested it under the LRIP program. It was only natural the prime would award a sole-source (or single source, if you prefer) to the small business. But that pesky cost & pricing data issue scared everybody. Therefore, the prime decided to compete the award and Rocko’s company received a competitive Request for Quotation (RFQ) and submitted a quote to the prime. Unfortunately, they were the only company to submit a quote; nobody else had the capability to make the product to spec. Even though it was a derivative from a commercial item, the technology used by Rocko’s company was a barrier to the other potential competitors. So competition wasn’t achieved, and the prime was back to a sole source award, and Rocko was back to figuring out this whole certified cost and pricing data and this whole FAR Table 15-2 thing, and so Apogee Consulting, Inc., was called in to assist.

Who called us? It was a representative of the prime contractor. The prime wanted a neutral, knowledgeable, source to work with Rocko to prepare a cost proposal suitable for cost analysis and negotiation. That was a little weird but we thought “why not?” And so we took the gig.

That was our first mistake. The last time we got D-K’d it was also a referral. From now on, we don’t accept referrals. If you want to hire us, you better get to know us first.

Our second mistake was dealing with Rocko. Our first dealings with him were via email and phone, as is the case with so many of our clients. But the communications were a bit off. For example, I emailed Rocko and told him that Ed would be contacting him first thing Monday morning to set up an appointment to come visit him. At 8:30 AM I received an angry call from Rocko, asking why Ed hadn’t yet contacted him and why did I say “first thing” in the morning if I didn’t mean it? (Note: Ed called him at 8:45 AM.)

How do you explain to somebody that “first thing” means different things to different people? For example, “first thing” to a Washington, D.C. law firm means between 9:00 and 9:30 AM; whereas “first thing” to a manufacturer might mean 6:30 AM. Since Ed didn’t know what “first thing” meant to Rocko—who was, after all, the company General Manager—he compromised and called at 8:45 AM. Rocko didn’t understand any of that decision-making, and that lack of understanding (or empathy, if you will) should have been a big red flag. We ignored it, of course.

Strike two. And we hadn’t even showed up to begin work yet.

Speaking of showing up to work, we had trouble scheduling meetings with Rocko. He was unavailable for much of the time, whereabouts unspecified. More to the point, his staff was reluctant to meet without him. (It was, after all, his company.) Ed and I discussed this issue and we decided to force things by setting up a two-hour meeting for a Friday morning at 10 AM. Rocko didn’t show but he participated via speaker phone. We had his staff there and we developed a project plan that would lead to the desired outcome. Everybody in the room agreed with the plan. They took action items. They seemed enthusiastic. Rocko was noncommittal.

One early question concerned the initial quote submitted when the company thought it was a competitive acquisition. Did Rocko want to hold to his quote, or did he want to let the bottoms-up estimating process (required for a FAR Table 15-2 compliant proposal) dictate the price of his new offer? We noted that, since he had a seeming lock on the work, he was free to ask for whatever profit rate he might think his customer would pay. While his staff nodded encouragingly at our comments, Rocko was noncommittal. Again.

The next challenge concerned due dates. Rocko was about to leave the country for several weeks and Ed had a two-week vacation planned. Given the scheduling conflicts, we all agreed that we would ask the prime for an extension. Ed called the prime’s representative and learned that this would not be a problem, since the prime wasn’t going to negotiate its contract until late Q1 2017. Everybody sighed with relief, now that the time pressure had been reduced.

We all agreed that, while Rocko was away, his staff would work on the detailed estimates. As data was developed it would be reviewed by Apogee Consulting, Inc. for compliance.

At least, that’s what we thought we all agreed to.

If you would like to hear the rest of the story, stay tuned.

 

More General Misconduct

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As we wrote a while ago, “Nobody should be surprised that employees will abuse company credit cards. It’s a known thing….” By no means is the abuse limited to corporate employees. Indeed, we’ve written several articles on the misuse of credit cards by both contractor employees and government employees. It’s an equal opportunity phenomenon.

We’ve also written before about abuse of privileges by the highest ranks of senior military leadership. For example, this article described how Major General William Ward “engaged in multiple forms of misconduct related to official and unofficial travel, misused a Government vehicle, misused Official Representation Funds [by distributing them to persons not authorized to receive them], wasted Government funds, and misused his position [by permitting staff members to perform personal services for him].” Not to be outdone, other military services—including both the US Air Force and US Navy—have had their own share of high-rank misdeeds.

Today’s story, however, is brought to you by the US Army and the Department of Defense Inspector General. Not to mention Major General Ronald Lewis, who served as Senior Military Assistant (SMA) to the Secretary of Defense.

The DoDIG investigated three allegations made about MG Lewis, including that he—

(1) misused his government travel charge card (GTCC) for personal expenses;

(2) made false official statements regarding his GTCC misuse;

and (3) engaged in a course of inappropriate behavior that included patronizing an establishment off-limits to U.S. military personnel, drinking to excess in public, and improper interactions with females.

The DoDIG substantiated all three allegations.

We are not going to delve into the salacious details of the DoDIG report. We included a link (above) so you can find them out for yourself, if you have a mind to.

What’s interesting (to us) is that MG Lewis was alleged to have made false statements. Specifically, the IG found that –

… MG Lewis violated the Uniform Code of Military Justice (UCMJ), Article 107, which prohibits individuals from making false statements related to their official duties, when he made false official verbal statements to subordinates and a false official written statement to Citibank regarding his GTCC use in Itaewon, Seoul. His GTCC statement and receipts confirm that he visited the off-limits Candy Bar club, where he charged $1,121.25 in personal expenses to his GTCC, and received some form of services or benefits from those transactions. When Office of the Secretary of Defense staff asked MG Lewis if he made the charges, he denied doing so. He then executed a digitally signed declaration to Citibank attesting that he did not make the charges to his GTCC at the Candy Bar club or receive services there. MG Lewis’ verbal statements to subordinates and written statement to Citibank denying that he made charges to his GTCC at the Candy Bar club were false. He knew that he used his GTCC there and received services. His false statements violated UCMJ Article 107 because preparing a voucher for official travel reimbursement and executing a report to the GTCC issuer relate to his official duties. The false statements caused Citibank to remove all the Candy Bar club charges from MG Lewis’ GTCC account, causing financial loss to Citibank.

We always make it a point to tell our clients that they must not lie or mislead government auditors in any manner. We now note that a similar prohibition applies to military personnel when conducting official duties; or, in this case, when making official statements about conduct that was definitely not a part of their official duties.

 

 

Updating Investment Advice

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Maybe I was bored, or maybe I wanted to write and there was nothing else to write about. In any case, in August, 2013, I wrote an investing advice article.

What was that doing on this website? You know, the website ostensibly devoted to government contracting matters? The one that is supposed to showcase expertise in case somebody, you know, wants to reach out and hire Apogee Consulting, Inc. What does investing advice have to do with any of that? Nothing.

Still: it happened.

In fairness to me, I was very clear that I was not any kind of investing guru. Any insight I had was the result of lots and lots of mistakes. As I wrote: “I claim no insight or insider knowledge or any expertise in this area whatsoever. So feel free to ignore my investing advice. I really have no business writing about the topic.”

And hopefully many readers did indeed ignore my investing advice.

Just to recap: I offered a hypothetical portfolio of 100 shares of Ford, 100 shares of Bank of America, and 100 shares of Cisco. All of which cost less than $6,000 (before commissions). (Actually the portfolio would have cost $5,473.) I said: “for less than $6,000, you can have a stock portfolio that includes an American auto manufacturer, a finance company, and a technology company. That’s not too shabby, in terms of diversification.”

About eighteen months later, in April, 2015, we updated that hypothetical portfolio. The starting value had increased to $5,870, a gain of $397. In addition, you would have banked $240 in dividend payments during that timeframe. So you would have had a total return on investment of $637 or nearly 12 percent.

Now, another eighteen or so months later, we are going to revisit that portfolio. Here is the updated table.

Stock Picks












Aug. 26, 2013
Nov. 11, 2016




Share No. of Amount
Share Current Gain or Dividend Total Percent
Stock Ticker Price Shares Invested
Price Value Loss Paid Return Return












Ford F $16.41 100 $1,641
$12.28 $1,228 $(413) $130.00 $(283.00) -17.25%
Bank America BAC $14.49 100 $1,449
$19.02 $1,902 $453 $32.50 $485.50 33.51%
Cisco Systems CSCO $23.83 100 $2,383
$31.36 $3,136 $753 $141.00 $894.00 37.52%












Totals


$5,473

$6,266 $793 $304 $1,097 20.03%

 

What does the table tell us?

Well, that Ford pick wasn’t so hot. We lost some money there. And even though we cashed some sweet dividends (which qualified for preferred tax treatment) it wasn’t enough to make up for the hit to the share price. Hopefully you were smarter than I was and you sold Ford after the last update and reinvested the proceeds into Bank of America or Cisco, or another company. But even if you didn’t do that, you are still up 20 percent on your original investment, because Bank of America and Cisco did nicely for us. If you had put all your eggs into the Cisco basket, you would now be looking at a ROI of more than 37 percent. And if you had decided to sell, your profits would have been taxed at long-term capital gains rates.

As you may recall, the object of the original exercise was to compare and contrast starting out in the equities market versus leaving your money in savings or in a CD. If you would have taken the safe, conservative, route, you would have made maybe one or two percent on your funds—and that return would have been fully taxable. We believe we’ve made our point.

Looking forward, I have no better crystal ball than anybody else. I have no picks to offer you, no sure winners guaranteed to make you rich. In fact, I continue to lose money on some stocks (like Ford) while doing better on other choices (like Cisco). I have no insight that’s better than anybody else’s.

Still … it seems pretty obvious that interest rates are going up in the near term. What that means to me is that equities are going to offer better returns than bonds will (since bond prices move inversely to interest rates: when one goes up the other goes down). I am going to stay out of bonds until the yields increase to the point where they start to compete with equities. That could be a couple of years. Meanwhile, when I pick stocks to buy, I’m going to look for companies that will benefit from higher interest rates. That’s as much of a forecast as I can offer.

Again, though, I need to emphasize that I don’t do this stuff for a living and I am not offering any financial advice here. Find yourself a good financial advisor, one you can trust, and listen to them. Don’t listen to me.

But it you had listened to me and moved $5,500 or $6,000 from a CD into the stock market, and if you had picked the three companies I listed in a hypothetical small dollar value diversified portfolio, well, you would be doing pretty well by now.

Must be luck, I guess.

 

 

It’s Not Called “Post-Award Audit” Anymore

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For a long time we have demonstrated subject matter expertise by translating phrases with specific meanings in the government contract environment into phrases that could be more readily understood by businesspeople. One example of such translations is “post-award audit.” That phrase had a specific meaning to DCAA auditors; it meant “defective pricing audit”. Then we explained that “defective pricing” means a proposal that was negotiated in noncompliance with the requirements of the Truth-in-Negotiations Act. And then we would explain TINA, and so forth.

No longer.

They are not called “post-award audits” anymore.

Sometime between after April, 2016, DCAA changed the name of the 42000 audit program to “Truth in Negotiations Audits”.

As the audit program states—

This standard audit program assists the auditor in planning and performing a Truth in Negotiations audit to determine if a negotiated contract price was increased by a significant amount because the contractor did not submit or disclose accurate, complete, and current cost or pricing data.

The irony here is that it’s not called Truth-in-Negotiations anymore. It hasn’t been called that for more than two years. It’s now called “Truthful Cost or Pricing Data”.

Another irony is that the Truthful Cost or Pricing Data requirement distinguishes between “cost or pricing data” and “certified cost or pricing data”. (It also distinguishes between those two categories and “data other than certified cost or pricing data”.) The FAR was revised to make these changes six years ago.

The audit program purpose statement does get one thing correct. It correctly states that a violation is not predicated on use, but rather nondisclosure. We noted this distinction here.

That’s not all, of course. The audit program also correctly lists the five requirements associated with a violation. They are:

  1. The information in question fits the definition of [certified] cost or pricing data.

  2. Accurate, complete, and current data existed and were reasonably available to the contractor before the agreement on price or other date agreed upon by the parties.

  3. Accurate, complete, and current data were not submitted or disclosed to the contracting officer or one of the designated representatives of the contracting officer and that these individuals did not have actual knowledge of such data or its significance to the proposal.

  4. The Government relied on defective certified cost or pricing data in negotiating with the contractor.

  5. The Government’s reliance on defective certified cost or pricing data caused an increase in the contract price.

(We note that the points above largely make the correct distinction between “certified cost or pricing data” and “cost or pricing data”.)

In related news, we have reported (several times) that DCAA seems to have gotten out of the defective pricing audit business. As the agency has focused on catching up on its backlog of unaudited contractor proposals to establish final billing rates, it has let this risk area go.

No longer.

The GFY2017 program plans call for an increase in such audits. Interestingly, they may be performed by Headquarters teams that don’t report to the local FAO. We’ll have to see what the results of this renewed focus will be.

 

 


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Newsflash

Effective January 1, 2019, Nick Sanders has been named as Editor of two reference books published by LexisNexis. The first book is Matthew Bender’s Accounting for Government Contracts: The Federal Acquisition Regulation. The second book is Matthew Bender’s Accounting for Government Contracts: The Cost Accounting Standards. Nick replaces Darrell Oyer, who has edited those books for many years.