Industry, wake up and smell the legislation

Buylines | Policies, strategies and trends to watch

"Existing law requires an agency to announce its intention to conduct such procurements, but does not require the agency's justification be made public." Steve Charles

The Accountability in Contracting Act (H.R. 1362) appears to be on the fast track. The bill moved from introduction by Rep. Henry Waxman (D-Calif.) to unanimous approval by a House committee in two days. But the measure's not yet law, so it's a good time to provide members of Congress with an industry perspective on what it proposes.

The legislation is organized into three titles, and Title I, "Limiting the Use of Abuse-Prone Contracts," would limit the length of contracts that agencies can award in emergency situations that bypass the usual full and open competitions.

The legislation would set a 240-day maximum for such contracts. It also would require the agency to award a full-and-open contract during that time to take over once the emergency period passed, unless the head of the agency identifies exceptional circumstances.

The second section of Title I, designed to limit the use of sole-source contracts, would require the head of each agency to submit a plan to Congress within a year that explains how the agency intends to limit the use of sole-source contracts.

Title II, "Increasing Contract Oversight," begins with a section that would require that justifications for other than full and open competition be made public.

Existing law requires an agency to announce its intention to conduct such procurements, but does not require the agency's justification be made public.
The bill proposes that those justifications would be made publicly available within 14 days of contract award through the agency's Web site and the Federal Procurement Data System. Because those 14 days would follow the 10-day protest window, the posted justifications could not be used in a bid protest. However, they would provide valuable insight into an agency's practices and its contractors. The idea is that increased competition would occur for subsequent procurements as sellers scrutinize these justifications and reposition their solutions in regard to the competition.

The second section of Title II, "Disclosure of Contractor Overcharges," would require the head of each agency to submit a quarterly report to Congress. Those reports would detail situations where audit reports identified situations where contractor costs in excess of $1 million are unjustified, unsupported, questioned or unreasonable. Agencies would send the reports to the House Committee on Oversight and Government Reform, the Senate Committee on Homeland Security and Governmental Affairs, and the House and Senate Committees on Appropriations, along with other committees of jurisdiction.

This section, "Disclosure of Contractor Overcharges," should trouble contractors because it implies guilt before due process, equating routine audit discussions with evidence of wrongdoing.

A third section would require that 1 percent of money spent through contracts ? in civilian and defense agencies ? be used for hiring and training of acquisition workforce personnel, contract planning, contract administration and oversight and contract audits and enforcement.

The problem with this list is that the terminology does not map to language used in existing acquisition regulations, and it does not provide enough detail for rulemakers to write clear regulations. For example, what, exactly, is "contract planning?" And would the 1 percent accrue to the agency managing the contract being referenced or to the agency generating the requirement and the purchase request?

Title III, "Deterring Corruption in Contracting," includes several provisions that relate to procurement officials. The first provision would double from one year to two the time in which agency officials are barred from taking jobs with companies that win contracts from the agency. This would include consulting and serving as a director in addition to direct employment. The provision would also prohibit lawyers and lobbyists connected to the winning company from paying former agency officials.

Steve Charles is co-founder of immixGroup, a government business-consulting firm in McLean, Va. E-mail him at Steve_Charles@immixgroup.com.

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