Transparency in debriefs would improve competition, help small businesses
- By Timothy Bunting
- Jan 02, 2019
Taxpayers have the right to know how the government is spending their money. After all, the insights gained from total transparency in the federal procurement process can hold agencies more accountable. For this reason, administrations and congresses have undertaken initiatives to boost transparency and improve oversight of federal government spending on a bipartisan basis.
A few efforts stand out, such as the Clean Contracting Act, USAspending.gov and the DATA Act, but outside of these select few, transparency is still lacking under Federal Acquisition Regulation Part 16 Indefinite Delivery, Indefinite Quantity task or delivery order awards. To fix this, it is time that federal agencies be required to provide post-award debriefings to all unsuccessful offerors, regardless of the value of the awarded IDIQ task or delivery order.
IDIQ contracts account for a substantial amount of federal contract dollars. A 2017 GAO report states that, from fiscal years 2011 through 2015, the federal government spent $130 billion per year through IDIQs and the U.S. Department of Defense accounted for two-thirds of that amount. The current regulatory framework for IDIQ contracts allows for agencies issuing task or delivery orders using a multiple-award IDIQ contract to not engage in full and open competition. Instead, they can, and are, limiting competition to the subset of prime contractors that were awarded an underlying contract.
But on the other end, agencies are required to afford contractors a “fair opportunity” to be considered for each task or delivery order in excess of $3,500 and to provide for “enhanced competition” for orders in excess of $5.5 million.
The unintended consequence of this move to improve the transparency and accountability of agency awards decisions of orders exceeding $5.5 million is that it established grounds by where agency decisions remain nontransparent. This floor means that unsuccessful offerors for lower value contracts are not entitled to an explanation of why their proposals were not successful and how they could improve in future bids. This floor is misguided.
The floor has a disproportionately negative impact upon small businesses and other vendors with limited resources. Relative to large government contractors, small businesses presumably are more likely to submit proposals for TO/DOs below the $5.5 million floor. As such, they become increasingly ineligible to pursue debriefs if their proposals are unsuccessful. This contravenes the government’s goal of empowering small businesses.
Contractors invest substantial time and resources in developing proposals, so the onus is on the government to provide thorough and meaningful debriefings that instill confidence in the source selection decision. Otherwise, unsuccessful bidders will not know how they erred and thus could continue to make the same mistakes on subsequent bids, depriving agencies of innovative solutions because of errors that could have been corrected. What is needed is a proposal that ensures fair opportunity for all offerors.
Those who object to this proposal are most concerned about slowing down the procurement process, increasing bid protests and the burden on the contracting workforce, but these concerns are manageable under a proper structure. First, the proposal is to broaden the availability of post-award debriefings; it has no bearing on pre-award activities or procedures.
Second, the bid protest floor is significantly higher than $5.5 million, so there would not be an issue with post-award litigation. Finally, contracting officers already must justify their acquisition decisions in written source selection decision memoranda. This proposal merely requires that a subset of the memorandum be prepared and, upon request, be transmitted to unsuccessful offerors.
This proposal has already received widespread support within the government contracting community, even from large businesses that are more likely to receive awards greater than $5.5 million. In the spring of 2018, a group of trade associations, known as the Acquisition Reform Working Group, representing hundreds of government contractors, asked the House and Senate Armed Services Committees to include this proposal in the FY 2019 National Defense Authorization Act.
ARWG includes the Aerospace Industries Association, the American Council of Engineering Companies, the Associated General Contractors of America, Financial Executives International, the IT Alliance for Public Sector (an arm of the Information Technology Industry Council), the National Defense Industrial Association and the Professional Services Council. If all these associations can agree, then surely our policymakers can too. Allowing all businesses, especially small- and mid-sized businesses, to learn from their mistakes benefits everyone.
Timothy Bunting is senior corporate counsel for Juniper Networks.