The experiment over, TSA now under FAR

The six-year procurement experiment that exempted theTransportation Security Administration from FederalAcquisition Regulation rules has finally come to an end. AfterJune 23, all TSA procurements became subject to the FARrather than to the Acquisition Management System rules used by theFederal Aviation Administration.When TSA was formed within theHomeland Security Department, the Bushadministration argued that it needed moreflexibility than the FAR allowed so TSAcould get on with the business of screeningthe traveling public from terroristswithout the bother of complying with theprocurement rules other agencies have tofollow.After six years and numerous congressionaland Government AccountabilityOffice reviews singling out TSA for ineffectiveprocurement practices, lawmakersdecided they had seen enough. TSA's 2008appropriations act directed the agency touse the FAR for future procurements.Not only does the change mean TSA's$1.7 billion acquisition budget will bespent according to the same rules thatgovern the rest of thefederal government,but competitors forTSA contracts willhave an opportunityto protest improper TSA contract awardsin a neutral forum. GAO has published afinal rule stating that procurements onsolicitations issued by TSA on or afterJune 23 will be subject to GAO protestjurisdiction. Previously, contractors had tofile protests of TSA procurements at a disputesoffice run by FAA.Placing TSA under the FAR has thepotential to materially affect some contractors,especially those that provide services.About 80 percent of TSA's acquisitionsare service contracts. One big differencebetween the FAR and TSA's formerrules is that sole-source contracts, whichTSA widely uses, are disfavored under theFAR.In another step toward better competition,the Defense Department issued apolicy memo in late May implementingthe enhanced competition requirementsfor task and delivery orders under multiple-award contracts, which were includedin DOD's 2008 authorization act.Although the FAR has not yet been modifiedto include those new requirements,DOD has directed all of its procurementoffices to follow them for task and deliveryorders issued afterMay 27.The rules now require DOD to give allmultiple-award contract holders a fairchance to compete for orders in excessof $5 million. At a minimum, thechange means that all contractors willget a clear statement of the task- ordelivery-order requirements, a reasonableperiod of time to prepare an offer,and notice of the evaluation factors tobe used in selecting a supplier.After an order is awarded, every contractorthat submitted an offer willreceive a written statement detailingthe basis of the order award and offeringan opportunity for a debriefing. Theright to protest a task-order award is stilllimited to orders of more than $10 million,so the post-award information ishelpful for future competition but doesn'tsubject the ordering process to protestdelays for smaller awards.Orders of less than $10 million can beprotested if the order increases the scope,period or maximum value of the multiple-awardcontract, but that would be a rareoccurrence.