Sole-source nonsense

An agency may only conduct a sole-source procurement if just one source meets the requirements

A friend in southern Maryland last week showed me an interesting announcement in Commerce Business Daily. In it, a major military command announced its plan to acquire "services to create, manage and monitor a commercial [.com] Web site...and provide remote administration, server statistics and Web site information." Of course, most readers will note immediately the unusual use of the .com top-level domain rather than the .gov or .mil domains usually employed by government agencies. Even more significant, however, is the agency's announced intent to acquire these services on a sole-source basis.

According to the CBD announcement, the procurement will be conducted on a sole-source basis because: "Only one responsible source and no other supplies or services will satisfy the agency requirements."

It is unbelievable that anyone could write such a statement. As noted by my friend, many high school students are qualified to do this work. The law in this area is quite clear. The Competition in Contracting Act of 1984 requires agencies to obtain full and open competition in essentially all procurements, unless limits on the competition are justified and approved according to applicable regulations. An agency may not conduct a sole-source procurement unless only one source can meet the agency's requirements or the agency's need for the services is of such an unusual and compelling urgency that the agency would be seriously harmed if the number of sources solicited were not limited.

Moreover, the agency must be able to prove that limits on the competition were not caused by a lack of advance acquisition planning. For example, in the 1994 case of Techno-Services Inc., the General Accounting Office overruled an agency's decision to acquire personal online software support services on a sole-source basis because the agency's problems were caused by its own failure to plan properly.

GAO has stated that the primary responsibility for ensuring compliance with the competition requirements rests with the contracting officials. The contracting officer may not simply rely on assertions by the office in need that only one source can meet its requirement. As GAO stated in the case of National Aerospace Group Inc., "Contracting officials must act affirmatively to obtain and safeguard competition; they cannot take a docile approach and remain in a sole-source situation when they could reasonably take steps to enhance competition."

As for the case at hand, I suppose it is possible there is someone left in the world who really believes that developing a commercial Web site is so difficult that only one source can satisfy the agency's requirement. On the other hand, it is just as possible that the author of this announcement knows full well that this statement is bunk and just doesn't care.

Readers can decide for themselves which is the scarier alternative.

Peckinpaugh is corporate counsel for DynCorp, Reston, Va. This column represents his personal views.

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