CONTACTS 
0201 - Corps of Engineers, SFD            415 977 8400 fax 8483
020101 - Mr. Thompson F. Keesling, Architect; Assistant Chief =415 977 8473
020102 - Construction Operations Division =415 977 8480
0202 - Corps of Engineers, SFD            415 977 8400 fax 8483
020201 - Mr. Max R. Blodgett, II, P.E., L.S.
020202 - Chief =415 977 8444; Construction Operations Division =415 977 8480
0203 - Thelen, Marrin, Johnson & Bridges  415 392 6320
020301 - Mr. David Buoncristiani, Esq.

SUBJECTS
Increase Budget, Port of Oakland
Tom Keesling, Modify Welch Contract
Contract DACW07-96-P-0705
Sole Source Justification
Action Item Status
Port Oakland Requested Cancelling Com Metrics DE Approved Contrary to

0908 -    ..
0909 - Summary/Objective
0910 -
091001 - Follow up ref SDS 28 0000, ref SDS 26 0000.
091002 -
091003 - Considered need for additional evidence supporting determination of
091004 - sole source award by Contracting Officer to Welch, and for Max and Tom
091005 - Benero to meet with DE on need to use Communication Metrics on the
091006 - Oakland project.  For contracts below $100K under the conditions of
091007 - the Oakland Harbor project, the standard of evidence may not require
091008 - the same effort to advertise for competing sources, as is needed for
091009 - contracts that exceed $100K.
091010 - ..
091011 - Submitted via email ref DIT 1 0000 including this record to
091012 - assist COE on this matter.  It includes a list of pending Action
091013 - Items, ref DIT 1 8573, discussed below. ref SDS 0 7472
091014 -
091015 -     [On 970108 email crashed, so printed the letters and Action Item
091016 -     list and delivered to COE. ref SDS 30 9999]
091017 -
091018 -     [On 970110 recommendation for Max and Tom Benero to meet with DE
091019 -     on this matter seems to have been followed, ref SDS 31 5739]
091020 -
091021 -     [On 970110 Tom White requested Action Items. ref SDS 31 7768]
091022 -
091023 -
091024 -  ..
0911 -
0912 -
0913 - Discussion
0914 -
091401 - Financial Concerns of Port Have Been Met
091402 -
091403 - Max related having received an email from DE indicating a concern
091404 - about the Port paying for the Welch contract.  Max indicated this
091405 - concern has been met by recent action allocating the cost of the Welch
091406 - contract at reduced levels to the Port.  A key point seems to be DE's
091407 - and Chief Counsel's opinion of the contribution Communication Metrics
091408 - offers at this critical time for the Oakland project, which seems to
091409 - conflict with Jim Stout's recommendations on 961015. ref SDS 7 3120
091410 - ..
091411 - Max indicated that Ralph Gin is no longer with the Port; Lynn
091412 - Cardoza has assumed that role.  He recalled discussions with Rick
091413 - Ferrin on advantages of Communication Metrics to the Port.
091414 -
091415 -     [On 970108 Max related Con Ops objective to use Communication
091416 -     Metrics to mitigate claim exposure. ref SDS 30 4729]
091417 -
091418 - We did not discuss the Port's effort to avoid an accurate record for
091419 - the same reason that Dutra expects to influence COE and/or position
091420 - itself relative to liability for managing the work, if COE has reduced
091421 - command and control of the record, as discussed with Max and Tom on
091422 - 961206. ref SDS 19 5002
091423 -
091424 -     [On 981027 Communication Metrics saved government $190K on
091425 -     environmental regulatory matter for which the Port of Oakland
091426 -     sought to hold the District liable. ref SDS 1 7315]
091427 -
091428 -
091429 -  ..
091430 - Maintain Continuity of Communication Metrics on Oakland Project
091431 -
091432 - Max indicated the need to develop sole source status on an expedited
091433 - basis within 15 days.  There was discussion that this objective could
091434 - be challenging for the administrative machinery of the District.  The
091435 - current effort, which was "expedited," took 3 months.  Tom Keesling is
091436 - going on vacation.  When he returns, his time will be devoted in large
091437 - measure to his new assignment.  The Cure Notice now in effect places
091438 - heightened demands on COE which will result in less time for a Welch
091439 - procurement.
091440 -
091441 -
091442 -  ..
091443 - Project Administration Has Been Configured for Communication Metrics
091444 -
091445 - The key objective is to maintain continuity of the current practice,
091446 - providing Command and Control of the record using Communication
091447 - Metrics, particularly in light of having recently configured meetings
091448 - to facilitate Communication Metrics, vis a vis the Port's objections
091449 - on 961205. ref SDS 17 9477
091450 -
091451 - Max wants to maintain support discussed on 960920. ref SDS 5 8854
091452 -
091453 - Once this goes away, adversaries will recognize a wound and seek to
091454 - take advantage.
091455 -
091456 -      [On 970108 discussed with Max again. ref SDS 30 4729]
091457 - ..
091458 - An example is the gradual proliferation over the past 2 weeks of
091459 - conflicting views and actions from the meeting on 961213 where
091460 - Communication Metrics was not applied, discussed separately this
091461 - morning.
091462 -
091463 -      [On 970110 report that after the meeting this morning on 970107,
091464 -      Max met with his staff and requested them to assemble the record
091465 -      on the 961213 meeting. ref SDS 31 2487]
091466 -
091467 - A simple step COE can take to correct this is to assign someone at
091468 - each meeting to prepare a record of what was said and how it relates
091469 - to objectives.  As noted in the paper on "Documents, Dialog and Human
091470 - Memory..." this is difficult, time consuming work without the SDS
091471 - tool, ref OF 1 1058, prepared at ref SDS 3 8400.
091472 -
091473 - If COE recognizes a need to maintain continuity of the Communication
091474 - Metrics effort, then we should be able to develop arrangements to
091475 - provide this interim support while the sole source process proceeds in
091476 - parallel.  At this time, however, it appears that COE's Chief Counsel
091477 - and the DE do not recognize this need.  Tom Keesling explained this
091478 - morning that he reviewed with John Eft the points in the analysis on
091479 - 961223, ref SDS 25 line 100, and John continues to view Communication
091480 - Metrics as ordinary litigation support.
091481 -
091482 -      [See follow up where John Eft is reported to have changed his
091483 -      position, per ref SDS 31 0034; DE maintains Communication Metrics
091484 -      is not needed on Oakland project. ref SDS 31 5739]
091485 -
091486 -
091487 -  ..
091488 - Sole Source Procurement Permits Discretion for Contracts Below $100K
091489 -
091490 - Max suggested having Tom Benero and Jim Stout visit with John on the
091491 - mechanics.  What is the authority for the second Welch contract that
091492 - pays for the period from 961111 to termination?  If COE wishes to
091493 - continue, why cannot the same authority be used to provide interim
091494 - support during sole source procurement activity?  Tom Benero requested
091495 - a letter from Welch to establish sole source status for the contract
091496 - modification.  This was provided and reported as being adequate, ref
091497 - SDS 8 line 108, and at ref SDS 21 line 58.  Presumably this document
091498 - would not have been requested unless there was reason to believe it
091499 - was material support for sole source procurement.  What discretion
091500 - does the Contracting Office have in matters less than $100K?  What
091501 - evidence is needed to support the Contracting Officer's exercise of
091502 - such discretion?
091503 - ..
091504 - Tom read John Eft's memo dated 961220 that his opinion of the
091505 - description of the Welch service seems to cover ordinary litigation
091506 - support that is widely available, ref DRP 2 line 27.  This suggests
091507 - that a different "description" might lead to a different opinion.  Max
091508 - indicated the view that sole source procurement is the only means to
091509 - rebut John's opinion.  While advertising is an appropriate procedure,
091510 - decision-making authority is typically based on the level of expense
091511 - involved.  Thus, the Contracting Officer may have wider discretion for
091512 - making determinations of sole source awards for amounts under $100K
091513 - than for contracts that exceed $100K.  Presumably this was in the mind
091514 - of those who changed the modification amount from $170K do $98K. <9630
091515 - Ordinarily a fact in law is established by the weight of the evidence.
091516 - The conditions under which a decision must be made impact the level of
091517 - effort required to collect evidence, and the quality and amount of
091518 - evidence needed.  Here, Dutra has been issued an "Unsatisfactory" form
091519 - 2626 evaluation, and a Cure Notice was issued on 961206.  Dutra is
091520 - attempting to avoid performance of its contract commitments and is
091521 - causing confusion in the record that obfuscates its non-performance.
091522 - Termination is an option; however, Dutra has some unique capabilities
091523 - (e.g., Antone) to perform.  COE would like to maintain these
091524 - resources, but it is now questionable whether Dutra is managerially
091525 - equipped to perform a major project, such as the Oakland Harbor job.
091526 - ..
091527 - This condition requires additional and specialized management
091528 - support to focus Contractor resources on performing the work, while
091529 - ensuring an accurate record of what actually transpires that causes
091530 - certain decisions in the heat of battle.  This is being done under the
091531 - Communication Metrics effort.  Is this the time to stop that effort?
091532 -
091533 -
091534 -
091535 -  ..
091536 - More Evidence May Support Sole Source Award by Contracting Officer
091537 -
091538 - The Contracting Officer in exercising discretion to determine sole
091539 - source status for contracts below $100K may take prudential notice of
091540 - all the evidence available.  Counsel's opinion is critical to this
091541 - decision.  Since it reflects lack of experience with Communication
091542 - Metrics, this fact may warrant further investigation by seeking other
091543 - opinions informed by experience with Communication Metrics.
091544 -
091545 - It appears that Jim Stout offered a favorable opinion, since he
091546 - suggested the form of the current Welch procurement initiative.  Tom
091547 - Keesling, Max Blodgett, Marc McGovern, Herb Cheong, Leonard SooHoo,
091548 - and Tom Benero can submit memos on their actual experience with
091549 - Communication Metrics over the past 3 months with respect to the
091550 - unique character of this form of support.
091551 - ..
091552 - Tom Keesling's recent assignment to other duties creates an
091553 - immediate loss of managerial resources on the Oakland Harbor project
091554 - at a time when increased management is needed. If more evidence is
091555 - needed to differentiate this procurement from ordinary litigation
091556 - support that is widely available from other sources, then COE can do a
091557 - spot telephone survey of local lawyers. Similar steps can be taken, if
091558 - needed, to support the exercise of the Contracting Officer's
091559 - discretion to determine sole source award of a contract below $100K,
091560 - in order to maintain continuity of the current effort.  For example
091561 - COE could obtain letters and/or declarations from lawyers; conduct
091562 - interviews of prominent litigation support firms on their ability to
091563 - perform Communication Metrics.
091564 -
091565 -      [See follow up where John Eft is reported to have changed his
091566 -      position, per ref SDS 31 line 410; DE maintains Communication
091567 -      Metrics is not needed on Oakland project. ref SDS 31 line 428.]
091568 -
091569 -  ..
091570 - Meeting with DE on Role of Communication Metrics
091571 -
091572 - Another step that may be helpful is for Max and Tom Benero to visit
091573 - with the DE about the advantages of continuing Communication Metrics
091574 - on the Oakland project.  Tom Keesling noted DE feels Communication
091575 - Metrics may be helpful for the Richmond project, but is not needed for
091576 - the Oakland project.  Since Tom, Max, Leonard and others responsible
091577 - for managing Oakland feel that it is needed, this need should be
091578 - presented.
091579 -  ..
091580 - There are some 30 Action Items being tracked by Communication Metrics.
091581 -
091582 - Without continued support, what procedure will be used to track these
091583 - matters and to capture the record of performance in a manner that
091584 - protects the interests of COE?  As new matters arise, how will they be
091585 - integrated into someone's list of things-to-do?  The volume of
091586 - documentation is going up, as each side scrambles to meet the demands
091587 - for greater care in communications, inherent in the Cure Notice
091588 - process?
091589 -
091590 -      [On 970108 Max wants Communication Metrics to continue. shown at
091591 -      ref SDS 30 4729]
091592 -
091593 -      [On 970110 Tom White requested Action Items. ref SDS 31 7768]
091594 -
091595 -      [On 970110 Tom Benero reported COE can contract for Communication
091596 -      Metrics, but DE is opposed. ref SDS 31 6482.]
091597 -
091598 -      [On 970624 reviewed with DE cost savings. ref SDS 32 6261]
091599 -
091600 -      [On 970722 problems on Oakland. ref SDS 33 7488]
091601 -
091602 -
091603 -  ..
091604 - Communication Metrics Solves Challenge of Information Highway
091605 -
091606 - Communication Metrics inherently performs this function everyday.
091607 -
091608 - Dutra is unable to perform it, and it is not clear that COE presently
091609 - can cope with increased information.  If DE recognizes this need,
091610 - possibly a new signal would result to the office of counsel which in
091611 - combination with additional evidence would result in a different
091612 - opinion.
091613 -
091614 -      [See follow up discussion with Max and Tom Benero at ref SDS 31
091615 -      3351.]
091616 -
091617 - The difficulty of keeping up with increased information flows is a
091618 - growing problem for all managements, under the mantle of the
091619 - Information Highway, discussed with Max in the meeting on 960105, ref
091620 - SDS 1 line 203.  It is greatly compounded by the present state of
091621 - affairs on the Oakland Harbor project, and so may warrant exigent
091622 - action to maintain Communication Metrics.
091623 -
091624 -      [See example from meeting on 961213, at ref SDS 31 line 519.]
091625 -
091626 -
091627 -
091628 -