Aronie: The simple made complex

Complex procurements render GSA buys more susceptible to protest.

The nearly $40 billion that will flow through the General Services Administration's multiple-award schedule program this year suggests that agencies and vendors alike are quite fond of this procurement vehicle.

And they have good reason to be. Under the schedule, agencies are relieved of many of the burdens of traditional negotiated procurements. In most cases, agencies need not synopsize their requirements, issue a solicitation, prepare extensive documentation, provide vendors with evaluation criteria or conduct a formal evaluation. Indeed, for product

orders not exceeding the applicable maximum order threshold, agencies need only compare three price lists or review GSA Advantage and place the order with the contractor offering the best value. The process is only slightly more onerous for larger purchases.

Yet for all this simplicity, agency officials constantly complicate things. Rather than taking advantage of GSA's straightforward ordering procedures, agencies construct complicated procurement schemes, often involving detailed technical requirements, mandatory technical and price proposals, and formal evaluation factors that go well beyond what the program requires. For example, during one recent acquisition, an agency chose to evaluate more than 90 separate technical subfactors.

This unfortunate practice of needlessly complicating GSA's relatively simple ordering procedures takes its toll on the procurement process. Not only does it increase the cost of the acquisition for the government and the contractor, it also renders the ultimate award far more susceptible to protest before the Government Accountability Office.

The standards of Federal Acquisition Regulation Part 15, which governs traditional negotiated procurements, do not apply to multiple-award schedule purchases, but GAO officials will evaluate agency conduct against those standards when an agency has acted as if it were conducting a FAR Part 15 procurement—for example, by requiring detailed technical and/or price proposals or advertising and conducting a formal evaluation. Accordingly, a purchase that typically would not be protestable could become so if the agency adopts nonschedule ordering practices.

This situation really is not good for anyone—except, of course, government contract attorneys like me who handle bid protests. Although protests serve an essential function in our federal acquisition system, they unquestionably slow the acquisition process, divert attention from more productive endeavors and are expensive. They also undo much of the benefit of the multiple-award schedule program.

As long as government officials continue to complicate the procurement process, contractors will continue to protest. And, in many cases, they would be ill-advised not to.

Aronie is a partner in the government contracts group of Sheppard, Mullin, Richter & Hampton in Washington, D.C., and the co-author of "Multiple Award Schedule Contracting." He can be reached at jaronie@sheppard mullin.com or (202) 218-0039.

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