Petrillo: A memo to Waxman

As you consider changes to the procurement process, a good place to start is the final report of the Acquisition Advisory Panel. Most of the following ideas track the panel’s recommendations. The best opportunities for improvement are for interagency and multi-agency contracts, so I’ll start with changes to limit abuse there.

■ The easiest change is to apply to civilian agencies the same ordering rules Congress mandated for the Defense Department. The Section 803 rules require notification of all awardees of order opportunities or else ensuring the submission of at least three proposals. Apply those rules governmentwide.

■ As the panel suggested, mandate more robust competition requirements for orders worth more than $5 million, such as a clear statement of requirements, evaluation criteria and documented award decisions. And drop the limitation on protests for such orders. A deal of this size shouldn’t be immune from accountability just because it’s called an order.

■ Because multiple-award contracts with a limited number of awardees act as a prequalification of bidders, apply the same type of restrictions applied to other prequalification programs, such as those in Section 253c of Title 41.

■ Consider trimming the number of interagency contracts.Make the Office of Management and Budget select a few best-of-breed vehicles. If an agency wants to start a new program or continue an old one, make it show that the added benefits will outweigh the costs.

■ Expand the use of government-purpose license rights, especially for items with a potential commercial application. Current data rights clauses often give the government unlimited rights. That discourages contractor investment in technology and gives the government more rights than it needs or uses.

■ Resist the temptation to have Congress mandate specific criteria for agencies to use to evaluate proposals. For instance, repeal the restrictions on the blanket use of numeric weights.

■ Consider discouraging awarding contracts without having discussions with offerors. The time and effort spent in negotiations often results in better contracts.

■ Put contractors on a level playing field with the government when it comes to legal presumptions.

■ Make sure, as the panel suggested, that there is clear guidance on which jobs are appropriate for outsourcing and which are not, whether or not there is a formal A-76 process for competitive sourcing.

■ Require agencies to list on their Web sites the names of all contracting officers and any limitations on their authority. Company officials get nervous when they aren’t sure if they are dealing with the right person.

■ And last but not least, don’t forget to fund enough positions for contracting officers and support employees. Numbers alone aren’t enough. It is just as important to support vigorous and constant training for acquisition employees.

Petrillo is a lawyer at Washington law firm Petrillo and Powell. He can be reached at jp@petrillopowell.com.   

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