Infotech and the Law

Amid the shouting and noise, little has changed

Jonathan Cain is a member of the law firm Mintz Levin Cohn Ferris Glovsky & Popeo PC in Reston, Va. The opinions expressed in this article are his.

What has changed since Sept. 11, 2001?

There are the obvious answers: federal employees in airport screening lines, memorable declines in market capitalization of public companies, demise of the worst of the dot-com hucksters and the most widespread attack by government lawyers on federal civil rights in more than half a century. But amid all this noise and activity, very little has actually changed for most government contractors that I know.

Relatively modest increases in government appropriations for IT acquisition have had a negligible effect on most small to midsize suppliers of software and services. Most of the spending increases have gone to large contractors to accelerate projects and programs that have been in the pipeline for some time, rather than for investment in new technologies.

A flurry of broad agency announcements and other, more limited solicitations for inventive anti-terrorist, intelligence gathering and battlefield surveillance technologies produced significant initial interest, but did not consume a material share of the government's IT acquisition budget increase. As part of the Defense Department's authorization bill, multiaward contract holders won more rights to compete for task orders, and biotech companies got special increases in micropurchase thresholds for biowarfare defense products.

On the legal and regulatory front, several proposals that had been under study before last September were introduced. The Services Acquisition Reform Act proposed further expansion of commercial acquisition practices for time and materials-based services and to allow commercial acquisition practices in acquiring noncommercial items from suppliers.

SARA received only lukewarm endorsement from the administration as Angela Styles, administrator of the Office of Federal Procurement Policy, pointedly remarked that she was "hard pressed" to see how further broadening of commercial acquisition practices would benefit the taxpayer.

More recently, the administration proposed radically easing competition requirements for acquisitions by the proposed Department of Homeland Security. It was not surprising that a major justification for both proposals was the need to permit agencies to quickly procure services and technologies needed to respond to terrorist threats.

Widespread use of government purchase cards for micropurchases also was the subject of sobering reports. More than 2.5 million government travel and purchase cards are in circulation, and predictable abuses were discovered at rather astonishing levels. Government purchase cards were used by employees to buy millions of dollars of jewelry, vacations, antiques, consumer electronic items and Internet services for personal use at a time when critical needs in information systems modernization and security improvements were unmet.

Finally, on Aug. 15, the General Services Administration's Board of Contract Appeals Chairman Stephen Daniels said in a speech at the White House that "the guts have been ripped out" of the Competition in Contracting Act, and that full and open competition in government procurements "has become a slogan, not a standard." Daniels argued that we have lost the transparency and accountability that were the hallmarks of earlier procurement reforms, and that many of the procurement changes enacted in the 1990s were made without understanding their full effect.

Daniels said the administrative cost of conducting procurements has been reduced, but at the expense of increasing the ultimate cost to taxpayers of procuring needed goods and services. Apparently, the debate over the extent to which government procurement should be guided by commercial practices is beginning again in earnest.

A year that began with shock ends with a familiar challenge: providing new information systems and services to protect U.S. citizens and infrastructure, quickly, efficiently, fairly and at a cost commensurate with the value provided.

About the Author

Jonathan Cain is a member of law firm Mintz Levin.

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