Time is ripe for federal procurement reform

Buylines | Policies, strategies and trends to watch

Steve Charles

After reading the Acquisition Advisory Panel's 448-page draft report, it's obvious that this is the playbook for the next era of federal procurement policy and legislation. Just as the Section 800 Panel of the early 1990s presaged the procurement reform legislation of the mid-1990s, so the panel sets the stage for the next round of procurement policy debate and reform.

How much legislation would be required to implement the panel's 80 recommendations? It turns out, very little. Most of the concerns are about government's failure to consistently implement rules, such as:

  • Acquisition planning activities and market surveys are not done properly.
  • Requirements in solicitations are ill-defined.
  • Time and materials contracts are administered without sufficient government surveillance.
  • Interagency contracting programs focus more on awards than on paying attention to required pre-award and post-award activities.
  • There is confusion over competition procedures as shown by "fair notice" for schedules and "fair opportunity" for indefinite-delivery, indefinite-quantity contracts.
  • Performance-based acquisitions lack defined outcomes and meaningful metrics.
    A few of the recommendations would require statutory changes to:
  • Clean up the confusing statutory and regulatory framework of how small-business preference programs are supposed to work.
  • Restore the requirement for all agencies to spend a percentage of procurement dollars on acquisition workforce training.
  • Establish the same legal presumptions for contractors and government regarding "good faith and regularity" in all parts of the contracting process, making the same rules apply to both to the extent allowable by the Constitution and public interest.
But responsibility for most of the recommendations falls squarely on the shoulders of the Office of Management and Budget and its Office of Federal Procurement Policy. They would require those agencies to make changes in policy and guidance in the Federal Acquisition Regulation such as:
  • Restore the definition of commercial services to that of the Federal Acquisition Streamlining Act of 1994, which required the sale of substantial quantities to commercial customers.
  • Develop a governmentwide policy and clauses dealing with organizational conflicts of interest and personal conflicts of interest.
  • Issue more guidance on use of performance-based acquisition and instruction on how to convert time-and-materials contracts to performance-based contracts.
  • Expand "fair opportunity" under Multiple Award Schedule IDIQ contracts to "notify all" eligible contractors.
  • Treat orders for less than $5 million similarly to full-and-open competition as concerns requirements definition, evaluation factors, adequate proposal response time, best value trade-off factors, post-award debriefings and opportunity to protest.
  • Establish a General Services Administration Schedule for services without rates, under which each order would require order level competition.
  • Roll back the definition of commercial services to FASA's statutory definition, which requires sale of substantial quantities to nonfederal customers to determine competitive, commercial pricing.
  • Provide agencies with guidance to authorize creation or expansion of non-governmentwide acquisition contract IDIQ programs, whether they are multiagency contracts or enterprisewide contracts and assisting entities.
  • Complete the OMB survey of all contract vehicles and assisting-services entities to improve transparency on interagency contracting and to establish a baseline for future policy development.
  • Increase quantity and improve quality of procurement data in the Federal Pro-
    curement Data System to capture transactions under MAS contracts.
  • Modify the prohibition on personal services contracts to allow such contracts, but define what the contractor as employer is responsible for doing.
The panel's report thoroughly documents the legislative history and current regulations around all the issues that continue to be highlighted by the oversight community. It is well worth the read for those interested in understanding how the acquisition system works, the pressure points and the tweaks we can expect in the future.

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

About the Author

Steve Charles is a co-founder of immixGroup, which helps technology companies do business with government. He is a frequent speaker and lecturer on technology and the federal procurement process. He can be reached at Steve_Charles@immixgroup.com or connect with him on LinkedIn at www.linkedin.com/in/stcharles.

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