THE WELCH COMPANY
440 Davis Court #1602
San Francisco, CA 94111-2496
415 781 5700
S U M M A R Y
DIARY: January 7, 1997 08:16 AM Tuesday;
Met with Tom Keesling and Max on Welch contract for Comm Metrics.
2...Financial Concerns of Port Have Been Met
3...Maintain Continuity of Communication Metrics on Oakland Project
4...Project Administration Has Been Configured for Communication Metrics
5...Sole Source Procurement Permits Discretion for Contracts Below $100K
6...More Evidence May Support Sole Source Award by Contracting Officer
7...Meeting with DE on Role of Communication Metrics
8...There are some 30 Action Items being tracked by Communication Metrics.
9...Communication Metrics Solves Challenge of Information Highway
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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.
Increase Budget, Port of Oakland
Tom Keesling, Modify Welch Contract
Sole Source Justification
Action Item Status
Port Oakland Requested Cancelling Com Metrics DE Approved Contrary to
0908 - ..
0909 - Summary/Objective
091001 - Follow up ref SDS 28 0000, ref SDS 26 0000.
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
091015 - [On 970108 email crashed, so printed the letters and Action Item
091016 - list and delivered to COE. ref SDS 30 9999]
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]
091021 - [On 970110 Tom White requested Action Items. ref SDS 31 7768]
091024 - ..
0913 - Discussion
091401 - Financial Concerns of Port Have Been Met
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.
091415 - [On 970108 Max related Con Ops objective to use Communication
091416 - Metrics to mitigate claim exposure. ref SDS 30 4729]
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
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]
091429 - ..
091430 - Maintain Continuity of Communication Metrics on Oakland Project
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.
091442 - ..
091443 - Project Administration Has Been Configured for Communication Metrics
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
091451 - Max wants to maintain support discussed on 960920. ref SDS 5 8854
091453 - Once this goes away, adversaries will recognize a wound and seek to
091454 - take advantage.
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.
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]
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.
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.
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]
091487 - ..
091488 - Sole Source Procurement Permits Discretion for Contracts Below $100K
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?
091535 - ..
091536 - More Evidence May Support Sole Source Award by Contracting Officer
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.
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.
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.]
091569 - ..
091570 - Meeting with DE on Role of Communication Metrics
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.
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?
091590 - [On 970108 Max wants Communication Metrics to continue. shown at
091591 - ref SDS 30 4729]
091593 - [On 970110 Tom White requested Action Items. ref SDS 31 7768]
091595 - [On 970110 Tom Benero reported COE can contract for Communication
091596 - Metrics, but DE is opposed. ref SDS 31 6482.]
091598 - [On 970624 reviewed with DE cost savings. ref SDS 32 6261]
091600 - [On 970722 problems on Oakland. ref SDS 33 7488]
091603 - ..
091604 - Communication Metrics Solves Challenge of Information Highway
091606 - Communication Metrics inherently performs this function everyday.
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.
091614 - [See follow up discussion with Max and Tom Benero at ref SDS 31
091615 - 3351.]
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.
091624 - [See example from meeting on 961213, at ref SDS 31 line 519.]
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