Infotech and the law: More grist for the bid protest mill

As a lawyer who has brought bid protests on behalf of protesters and defended them on behalf of awardees, I am always of two minds whenever I learn of something that may generate more bid protest litigation. That was my reaction to recent press reports about the General Services Administration's new plan to hire as many as 100 outside contract employees for acquisition and contract administration services ? work that federal employees normally would perform.

GSA has indicated that it will obtain these services, which it calls Nationwide Contracting Support, using a blanket purchasing agreement. According to GSA's draft statement of work, it will task the selected contractor's employees with a broad range of acquisition activities, including: developing strategies; preparing statements of work, specifications and cost estimates; evaluating offerers' proposals; and assisting in discussions with offerers.

One can speculate as to why GSA might want a contractor to handle work of this sort. Press reports have pointed to previous downsizing of the government's acquisition corps and resulting shortages of experienced contracting professionals, a situation that is not confined to GSA and likely will worsen over time, as more and more of the governmentwide acquisition corps retire.

What has all this got to do with bid protests? Well, for one thing, the plan has the potential to create situations of real and significant organizational conflicts of interest. To its credit, GSA recognized as much, and included stringent conflict-of-interest provisions in the draft statement of work.

These provisions are aimed at preventing bias and unfair competitive advantage, phenomena in which the Government Accountability Office has expressed keen interest, often in the context of deciding the outcome of bid protests.

While the conflict-of-interest provisions in GSA's statement of work appear to provide real incentives for the selected contractor to police itself, a contractor that loses a GSA procurement might have even more incentive to conduct a thorough and searching probe of the acquisition for potential conflicts of interest.

Equally important, based on a long-standing policy set forth in OMB Circular A-76, GAO has held the view that the government may not use service contractors to discharge "inherently governmental" functions; only federal government employees are permitted to do that.

According to GAO, an inherently governmental function is one that is "so intimately related to the public interest as to mandate performance by government employees." Examples of such functions include exercising discretion and making value judgments on behalf of the government.

Thus, GAO once found that the Energy Department crossed the line by using contractor-supplied hearing examiners to conduct security clearance hearings and determine whether to grant or deny security clearances.

Which brings us to the main point here: GSA's statement of work arguably calls for contractor employees to perform inherently governmental functions with respect to specific GSA procurements, and that arguably will taint evaluation and award decisions.

One can take issue with this argument, and perhaps GAO or some other authority will, one day, decide that it doesn't hold water. Until that day, however, disappointed offerers on GSA procurements will have little to lose -- and potentially much to gain -- from making the argument. Depending on which side you're on, that could be good news or bad.

Walter Zenner is a senior counsel in the government contracts practice at ShawPittman LLP in McLean, Va. He can be reached at walter.zenner@shawpittman.com.

 

 

 

 

 

 

 

 

The newly created National Information Exchange Model (NIEM) program -- created jointly by the Homeland Security and Justice departments -- is looking for pilot projects to test its standards for data sharing and interoperability, according to its co-leader, Michael Daconta.

A Concept of Operations document will be issued April 4 outlining the goals of the pilot projects, he said.

The team's new Web site, NIEM.gov, is expected to be operating online by May 1 to publicize the project and to attract state, local and private sector involvement, said Daconta, who also is director of metadata for Homeland Security.

"This is a national model, not a federal model," Daconta said. "Many state and local governments want the federal government to take a leadership position on how to do information sharing."

The new Extensible Markup Language national modeling project is being led by Daconta and Jeremy Warren, enterprise architecture specialist for the Justice Department. The project will use the Global Justice XML model developed by Justice as its baseline.

Daconta said the team expects to issue a Concept of Operations April 4 outlining the goals of the pilot projects.

One of the project's goals, Daconta said, is as much as possible to maintain the existing Global Justice standards that are already functioning in the field.

"The Department of Justice has adopted these standards, and we don't want to upset the applecart," Daconta said.

The same reticence applies to XML-

based crisis management and alerting protocols developed in conjunction with the Federal Emergency Management Agency, he added.

Daconta said the new NIEM.gov Web site will help to involve state and local officials and industry groups in development of additional XML standards for the national model. "The process has to be collaborative," he said.

At the same time, though, he recognizes some groups that already have XML standards may need to migrate to the new standards.

"We have to balance competing and conflicting requirements," Daconta said.