DOD IG report may reveal a need for self-policing

An attorney wonders if changes to the bid protest system make new forms of oversight necessary for task orders.

pen and contract

A new Defense Department inspector general report may have exposed a potential need for a self-policing system to keep task order competitions impartial, a procurement expert wrote Oct. 29.

Contracting officers at the Specialty Center Acquisition at the Naval Facilities Engineering Command, a part of NAVFAC Engineering and Expeditionary Warfare Center, generally provided companies a fair opportunity to compete for task orders on a multiple-award contract (MAC), the Defense Department’s inspector general concluded in a report released Oct. 27. The IG’s office audited 20 task orders for services valued at $101.2 million on four separate MACs. However, auditors found the officers limited competition for two task orders by not sending out solicitations or notice of changes made to the solicitations. The IG wrote, the officers “believed that they had the authority to exclude contractors from receiving the solicitation.”

On his SmallGovCon blog, Steve Koprince, government contracts attorney and partner at the Petefish, Immel, Heeb and Hird law firm, pointed to two key irregularities: The contracting officers’ decision to limit competition and their failure to document whether their contractors’ prices were reasonable.

“It is fair to question whether the absence of the self-policing system established by the protest mechanism could contribute to unreasonable or improper task order awards,” wrote Koprince, author of “The Small-Business Guide to Government Contracts.”

The possible need for the self-policing system comes into play since Congress did not renew the Government Accountability Office’s broad authority to hear bid protests for task orders. GAO can now only hear protests over task orders worth more than $10 million.

“The [IG] report is troubling, particularly with respect to the lack of fair opportunity on 10 percent of the task-order competitions in question,” he wrote. “In my mind, it is not good enough for the government to ‘generally’ provide a fair opportunity for contractors to compete.”

However, the report is a small sample of government contracting and Koprince recommended not drawing government-wide conclusions from it.

“Nevertheless, it makes me wonder whether some sort of self-policing system — whether a formal bid protest or otherwise — might one day be worth considering for task order competitions,” he wrote.

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