Grkavac: No need to turn back time

The SARA panel is proposing a new roll of red tape that would tie up recent procurement reforms

Acquisition Advisory Panel

If you think that the government procurement process is bad now, just remember what it was like about 10 years ago. Major information technology acquisitions took so long that solutions were outdated before work began. Only companies that specialized in federal contracting would try to compete for contracts, and award protests routinely delayed performance after contracts were awarded. That was before legislation such as the Federal Acquisition Streamlining Act of 1994 and the Clinger-Cohen Act of 1996 launched a movement to reform regulations so the government could use the same products and services that corporations took advantage of every day.

So the news was welcome in 2003 when another law, the Services Acquisition Reform Act (SARA), called for a high-level panel to review acquisition laws and regulations “for the effective, efficient and fair award and administration of contracts for the acquisition by the federal government of goods and services.” Unfortunately, after months of deliberations, it has become clear that this panel has lost its way.

Earlier this month, the panel adopted a series of preliminary recommendations that would reverse the momentum of reform. If the Bush administration and Congress adopt those recommendations, they would limit the government’s access to cutting-edge solutions, encourage frivolous post-award protests and restrict the government’s ability to use common commercial contracting tools such as time-and-materials agreements. The net result would be to impose a procurement process that is less efficient, less effective and less fair to all stakeholders involved. Such an environment does not serve the best interests of the federal government, its industry partners or, most importantly, American taxpayers.

For those reasons, a coalition of the major trade associations representing the private sector in its business with the federal government has denounced the panel’s recommendations. Coalition members include the Information Technology Association of America, the Professional Services Council, the Contract Services Association, the Aerospace Industries Association, the National Defense Industrial Association and the Government Electronics and Information Technology Association.

Together, we submitted comments identifying numerous flaws and weaknesses in the government panel’s recommendations. It is also important to note that we all worked — in vain — to inform the panel during its deliberations on several occasions through comments and presentations.

Here are a few of the most egregious examples of how the panel’s recommendations could negatively affect government procurement.

  • The panel recommends that the definition of commercial services be restricted to services that are “actually sold in substantial quantities in the commercial marketplace.” Currently, the government can procure solutions that are “of a type” commonly sold commercially. If enacted, that recommendation would doom the government to acquiring only the older generations in any category of solution — an unacceptable restraint, particularly as the government grapples with evolving national and homeland security risks. It would also significantly hamper the government’s ability to drive innovation in the United States as one of the world’s largest consumers of technology.

  • The panel also suggests that companies that fail to win business under multiple-award contracts be allowed to protest any award decision. This is a bad solution intended to fix a nonexistent problem: We are unaware of anyone in industry or government advocating expanded protest rights for those types of offerings. This move would ultimately cost taxpayers and hurt the government’s ability to get the contracted work accomplished on schedule.

  • The panel advocates policies that would restrict the use of time-and-materials contracts, a form of agreement commonly used in the private sector. The panel recommended that existing time-and-materials contracts be converted and that they only be permitted when the work to be performed under the agreement can be described in detail at the time of the agreement. Because such contracts are used in cases when the government and its industry partners cannot fully predict what work will be performed, such requirements do not make sense. Converting existing time-and-materials work can be tricky for the same reason.

Industry applauds lawmakers for passing SARA, and we support the effort to further streamline procurement regulations. We understand the desire for checks and balances that prevent waste, fraud and abuse in government contracting. Yet the government must ensure that those good intentions do not lead us back to the days when officials were forced to craft government-unique purchasing requirements and avoid the readily available and less-costly commercially available options.

As the panel’s recommendations are finalized and reviewed by decision-makers in Washington, the next several months could prove to be a critical time in determining whether the procurement reform movement will live on or begin to wane.

Grkavac is an executive vice president of the Information Technology Association of America.

Acquisition panel recommendations

The Services Acquisition Reform Act mandated the creation of a high-level panel to review the government’s acquisition laws and regulations. Here are some of the Acquisition Advisory Panel’s recommendations so far.

  • The Office of Federal Procurement Policy should update the principles for agencies to apply in determining which functions civil servants must perform. Agencies must then ensure that those functions have an adequate number of employees.

  • To reduce artificial restrictions and maximize effective and efficient services, Congress should remove statutory prohibitions on personal services. Within the scope of those contracts, the government should be able to direct a contractor’s workers on the substance of the work and tasks performed. Prohibitions on government involvement in supervisory activities such as hiring, leave approvals, promotions or performance ratings should remain in place.

  • To be consistent with congressional action, OFPP should provide specific policy guidance that defines where, to what extent, under which circumstances and how agencies may procure personal services.

  • The Federal Acquisition Regulation Council should review existing rules and regulations to create uniform governmentwide policies and clauses that deal with organizational and personal conflicts of interest. The regulations should also address the protection of contractors’ confidential and proprietary data.

  • The goal should be ethical conduct by contractors, not technical compliance with a multitude of specific — and often confusing — rules and regulations. Therefore, the government should not impose rules and regulations in their entirety on contractors. Contractor employees will be working with civil servants daily, but the ethics rules for civil servants are not all self-evident. So agencies should consider requiring all contractor employees who operate in blended workforce environments to receive the same annual ethics training that civil servants do.

  • Agencies should use existing remedies, procedures and sanctions as much as possible against ethics violators. Those actions reinforce the standards of ethical conduct that apply to contractors, including company employees who work in a blended workforce. They also ensure that ethical contractors don’t have to compete with unethical organizations.

Source: Acquisition Advisory Panel

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