Huber Heights, OH 45424

6 May 2013 6934 Sylmar Ct Huber Heights, OH 45424

Columbus District Office US Dept. of Labor Wage & Hour Division 200 North High Street, Room 646 Columbus, OH 43215-2408

Re: Violation of the Professional Service Clause FAR § 52.222-46 by Wright Patterson AFB (WPAFB) and numerous Contractors while administering the Acquisition of Consolidated Enterprise Support Services (ACCESS) contract FA8622-12-D-8001-8019

Dear DOL Staff,

My company SERCO-NA recently won the re-compete for my position within the WPAFB Air Force Life Cycle Management Center, Special Operations Forces and Personnel Recovery Division (AFLCMC/WI). This re-compete has forced my co-worker who holds a similar Test and Evaluation position to accept a decrease in salary from over $100,000 to $56,000. My manager now tells me SERCO-NA expects me to agree to a $43,000 a year cut in pay or resign. Many of the other SERCO-NA employees also affected by this new contract have been told by SERCO-NA Human Relations that these wage cuts have been forced upon them by the government. I believe both the government and the companies eligible to compete under the ACCESS contract are complicit in "Wage Busting" and failed to comply with the Professional Services Clause, FAR § 52.222-46 (Ref 01). I ask for your assistance in examining the results of this contract within the intent of the law and conveying that assessment to myself, SERCO-NA and AFLCMC.

The difference in salaries mentioned above is strong evidence of wage suppression in violation of the Professional Services Clause. Additionally, the following paragraphs show: WPAFB prepared research that shows a compliant ACCESS wage scale is much higher than the wage scale for the bids they accept. WPAFB AFLCMC is attempting to use significantly different job descriptions and qualifications for equivalent Government and Contractor positions. The AFLCMC/WIS re-compete used one set of job descriptions when soliciting the bids but then used a different set of job descriptions when evaluating the bids and awarding the contract. AFLCMC leadership's primary objective in requiring the use of ACCESS contract is cost reduction even if this contradicts FAR requirements. Finally, references are provided to DoD guidance on Low Price Technically Acceptable (LPTA) contracts like ACCESS and to judicial precedence that shows the government contract agency is required to apply the Professional Service Clause and reject deficient offers.

An Evaluation of Compensation for Professional Employees; Court of Federal Claims - Key Excerpts (Ref 02) tells us the government is responsible for vigorously applying the Professional Service Clause when awarding contracts and financially responsible when it does not.

1 To keep the length of this correspondence reasonable for review, the position examined is Test and Evaluation Management Support Senior level. The Contract awarded to Sumaria / SERCO-NA from solicitation FA8622-12-D-8599-0038 to complete work within AFLCMC/WIS is presented as a specific example of some of problems contained within all ACCESS awards. Though this specific position and contract are examined they reflect the overall implementation of the ACCESS contract.

AFLCMC failed to enforce the Professional Services clause by accepting "unrealistically low" compensation. As part of the solicitation FA8622-10-R-8526 (Ref 03) which was awarded as FA8622-12-D-8001-8019 AFLCMC contracting prepared a report "ACCESS Composite Labor Rates" (Ref 04). That document lists the expected 2013 average and highest wage rate for Test and Evaluation Management Support Senior as $80.28 and $99.61 per hour respectively. Sumaria, the winner of the AFLCMC/WIS award declared that their 2011 rate for this position was $91.91 per hour. AFLCMC awarded the contract to Sumaria with a labor rate for this position at less than $65 per hour. The Professional Services Clause (Ref 01) states "Professional compensation that is unrealistically low or not in reasonable relationship to the various job categories, since it may impair the Contractor's ability to attract and retain competent professional service employees, may be viewed as evidence of failure to comprehend the complexity of the contract requirements." The resulting salary offers by Sumaria and SERCO-NA clearly shows their intent to violate the clause. The magnitude of the difference between the expected bid and the actual award shows malfeasance on the part of AFLCMC contracting in the evaluation and award of the contract and by the contractor that chose to "price to win" (Ref 11) instead of constructing a proposal consistent with their regulatory obligation .

AFLCMC is inappropriately using the LPTA contract vehicle. Department of Defense interpretation of FAR 15.101-2 (Ref 08) states, "LPTAs may be used in situations where the Government would not realize any value from a proposal exceeding the Government's minimum technical or performance requirements ...". This interpretation requires that if ACCESS (an LPTA type contract) is to be used for high complexity and high risk tasks then the job descriptions for the positions must be written so that the minimum qualification must have outrageously high requirements (example - for the qualifications listed in the position description of the MCTF T&E manager to ensure it was impossible to find a person more qualified to provide value they would have to include; Test Pilot School, MC-130J pilot and a PhD in Radar engineering). If the government doesn't include such a strict list of qualifications then the government is required to use a different kind of contract that allows for Tradeoffs between price and technical performance.

Examining the ACCES job descriptions we see they fail the criteria established by DoD guidance. Furthermore AFLCMC uses vastly different criteria to describe the qualifications of government and contractors performing essentially the same tasks. According to AFLCMC/AQTA Workforce Management Branch 06 Feb 2013 (Ref 05) the minimum education level for an entry level T&E position is a "Baccalaureate or graduate degree in a technical or scientific field such as engineering, physics, chemistry, biology, mathematics, operations research, engineering management, or computer science." This is consistent with

2 the Office of Personnel Management's educational requirements (Ref 06). However, the educational requirement for a Senior Test and Evaluation Manager used in the evaluation process for solicitation FA8622-12-D-8599-0038 (Ref 07) was a GED. Examination of the rest of the skills and experience outlined in the requirements for government employees filling these positions compared to the solicitation requirements show AFLCMC did not properly construct the solicitation to make it possible for their evaluation team to satisfy the Professional Service Clause requirement that, "The compensation levels proposed should reflect a clear understanding of work to be performed and should indicate the capability of the proposed compensation structure to obtain and keep suitably qualified personnel to meet mission objectives. The salary rates or ranges must take into account differences in skills, the complexity of various disciplines, and professional job difficulty."

In the source selection process for execution contracts the government has used different criteria to solicit bids than they used to evaluate proposals. The position descriptions used to solicit bids for FA8622-12-D-8599-0038 (Ref 07) differ significantly from the position descriptions for FA8622-12-D-8599-0038 (Ref 12) given to the evaluation team. Though the job descriptions and qualifications found in the solicitation poorly reflect what is required for the specific positions for the Test and Evaluation Manager it did contain two beneficial characteristics; All test and evaluation management support personnel require a Secret (S) clearance on the first day of the task order, and 2) The contractor shall be experienced working ACAT I-III test programs, as a test manager, to include programs on OSD oversight. Neither of these qualifications were included in the job description provided to the evaluation team. This speaks directly to AFLCMC's intent to ignore the primary objective of the Professional Services Clause, "It is therefore in the Government's best interest that professional employees, as defined in 29 CFR 541, be properly and fairly compensated. As a part of their proposals, offerors will submit a total compensation plan setting forth salaries and fringe benefits proposed for the professional employees who will work under the contract. The Government will evaluate the plan to assure that it reflects a sound management approach and understanding of the contract requirements. This evaluation will include an assessment of the offeror's ability to provide uninterrupted high-quality work."

AFLCMC understands FAR requirements but has chosen to ignore them because of preoccupation with budgetary costs. The 20 Jun 11 ACCESS Final RFP (Ref 09) required bidders to satisfy the Professional Services Clause. When AFLCMC organizations were negatively affected because up to 90% of the Professionals covered by ACCESS chose not to return to their positions these organizations sought other means to meet the objective of FAR 52.222-46. In order to prevent this the AFLCMC Commander issued a memorandum (Ref 10) that states, "Increasing economic pressure and resource constraints ...." is the primary reason he has mandated the use of the ACCESS contract. This memorandum contains no guidance to the units advising them on how to successfully implement the contract. In fact, anecdotal reports from multiple independent people indicate AFLCMC leadership has stated the reason ACCESS take rates are so low is because the Professional workforce has too many other options for employment with higher pay and the units must work with AFLCMC leadership to eliminate as many of those options as possible.

3 Implementation of ACCESS has caused program stability issues. FAR 52.222-46 states, "The Government is concerned with the quality and stability of the work force to be employed on this contract.". AFLCMC/WIS contracts to hire 4 individuals to support their MCTF program. Three of these individuals resigned when they were offered the new salary under the ACCESS contract. I believe and am prepared to litigate that SERCO-NA cannot unilaterally reduce my salary. If I did not believe I am presently earning compensation at the rate SERCO-NA and I previously agreed upon the MCTF program would have lost all of their A&AS support contractors for this program. Clearly, a 75% to 100% loss of personnel indicates AFLCMC leadership continues to promote a policy contrary to Congressional priorities as dictated in the Federal Acquisition Regulations and the ACCESS eligible contractors are complicit in this implementation.

Thank you for ensuring Federal Agencies correct the deficiencies in regulatory compliance presently being enacted by AFLCMC while propagating the inappropriate use of the ACCESS contract. In addition to your office, I have also appealed to Sen Sherrod Brown with a request for assistance. I am appealing to AFLCMC leadership to voluntary adopt a compliant policy and to make whole those affected by their non-compliant implementation. Furthermore, I am dealing directly with SERCO-NA and to a broader extent all ACCESS eligible contractors to ensure they understand their obligations both in the bidding process and after contract award. Your help in securing a quick acknowledgement by AFLCMC of their past deficiencies and their adoption of a correction plan will minimize the cost to the government and ACCESS eligible contractors.

Finally, I'll make a personal appeal. When talking with my five children, and their friends I advocate for them to pursue vocations in Science, Technology, Engineering and Mathematics (STEM). I always tell them the extra study it takes to become successful in these fields is worth it because of the personal satisfaction that comes from inventing and improving new products. This argument is fine on an intellectual level but we all know that even high schoolers are motivated to do that extra work because of the possibility of financial stability. The current level of compensation for STEM positions offers just enough advantage over non- technical jobs to be a motivating factor for many. That motivation will be lost if AFLCMC leadership is successful in redefining the salary structure for senior level mathematicians, physicists and engineers so that it is on par with a newly hired Assistant Store Manager trained by the Aldi Grocery chain.

Thank you again for your attention to this issue. I appreciate your keeping me informed of your intentions and strategy. If I can be of further assistance please contact me at 937 985 6275 or [email protected]

Sincerely,

Thomas F. McMasters. cc: Sen Sherrod Brown, AFLCMC, SERCO-NA, ACCESS Action Group, Frank Payson Esq

4 References:

01 - FAR 52.222-46 Evaluation of Compensation for Professional Employees. https://acquisition.gov/far/current/html/52_222.html The link takes you to the full 52.222 scroll down to section 46 for entire text.

02 - FAR 52.222-46: Evaluation of Compensation for Professional Employees; Court of Federal Claims - Key Excerpts http://www.wifcon.com/pd52_222_46.htm Sites references to court decisions relevant to this issue: The Federal Circuit, however, reversed and remanded the case. It held that the professional services clause required the agency to make two separate determinations:

(1) a determination of whether each offeror’s compensation package was generally consistent with the salaries being paid by the incumbent contractor; and (2) a determination of whether each offeror’s compensation plan was realistic, i.e., whether it indicated that the offeror understood the scope of the work. Id. at 1343.

Specifically, the court ruling shows the government is required to properly enforce the clause: "The Army’s failure to comply with the clause constituted a departure from the evaluation criteria specified in the solicitation and, correspondingly, a violation of both the FAR and the Competition in Contracting Act. See 10 U.S.C. § 2305(a)(2)(A)-3(a); 48 C.F.R. §§ 15.303(b), 15.305(a);"

03 - ACQUISITION OF CONSOLIDATED ENTERPRISE SUPPORT SERVICES (ACCESS) Solicitation Number: FA8622-10-R-8526 https://www.fbo.gov/index? s=opportunity&mode=form&id=7daa7ac6e8dc5692b8e662687ae69348&tab=documents&tab mode=list This is a link to the entire ACCESS package

04 - ACCESS Composite Labor Rates - This document not found on the internet will be provided as separate submission. Content summarized within text of letter.

05 - AFLCMC/AQTA Workforce Management Branch 06 Feb 2013 presentation - This document not found on the internet will be provided as separate submission. Content summarized within text of letter.

06 - Office of Personnel Management qualification requirements for; Professional and Scientific Positions, and for Administrative and Management Positions http://www.opm.gov/policy-data-oversight/classification-qualifications/general-schedule- qualification-standards/#url=GS-PROF Shows an educational requirement of at least a "successful completion of a 4-year course of study"

5 07 - Solicitation FA8622-12-D-8599-0038 - This document not found on the internet will be provided as separate submission. Reference document is split into 4 parts; 07a, 07b, 07c, 07d.

08 - Department of Defense Source Selection Procedures Mar 4, 2011 http://www.acq.osd.mil/dpap/policy/policyvault/USA007183-10-DPAP.pdf Appendix A of this document contains the DoD guidance on the "Lowest Price Technically Acceptable Source Selection Process". The introductions states, "LPTAs may be used in situations where the Government would not realize any value from a proposal exceeding the Government’s minimum technical or performance requirements, often for acquisitions of commercial or non-complex services or supplies which are clearly defined and expected to be low risk. The LPTA process does not permit tradeoffs between price and non- price factors. See FAR 15.101-2."

09 - 20 June 11 ACCESS FINAL RFP.pdf https://www.fbo.gov/utils/view? id=3f6ebb0fec9b9b2a575394672e80a3e6 This document shows that the government recognizes FAR 52.222-46 EVALUATION OF COMPENSATION FOR PROFESSIONAL EMPLOYEES (FEB 1993) is required and the bidders were required to satisfy this clause (Page 93 of 200).

10 - Policy for the Mandatory Use of Advisory and Assistance Service (A&AS) Contracts 4 Jan 13. This document not found on the internet will be provided as separate submission. Content summarized within text of letter.

11 - Email Chain showing contractor Price to Win Strategy.msg This document not found on the internet will be provided as separate submission. Content summarized within text of letter.

12 - LPTA_Evaluation_Jan2013_Descriptions for FA8622-12-D-8599-0038. This document shows the job descriptions provided to the source selection for the evaluation team. This information resembles the job descriptions for the overall ACCESS program. It does not show the job descriptions used to solicit the FA8622-12-D-8599-0038 bids.