Part 15 rewrite sparks old debate

The upcoming rewrite of Part 15 of the Federal Acquisition Regulation (FAR) is likely to rekindle debate over how much flexibility contracting officers should have when negotiating with vendors in competitive procurements.

Many contracting officials contend that Part 15, which sets the rules for conducting negotiated buys, restricts them from making common-sense judgments, while also not spelling out clearly enough when such discretion is appropriate.

The same concerns were raised by the administration during discussions last year on a pending procurement reform bill.

Some contractors, however, have challenged administration and congressional proposals on the issue, contending that discretion will lead to bias toward agencies' favorite vendors.

Other procurement personnel are not sure revising the FAR will help without new legislation to back it up. And some think what they and their bosses need most is more courage to make unconventional decisions and better protection from frivolous lawsuits.

"The FAR couldn't cover all situations and therefore was bound to fall short in the gaps," said Terry K. Ford Jr., a contracting officer with the Bureau of Reclamation. "Our problem arose from those few among us who knew what they'd really like to do, and should do, in a given situation but couldn't, or felt they couldn't, write a decisional document sufficiently convincing to justify their action" to appeals boards.

Meanwhile, regulators acknowledge that in rewriting the FAR, they must strike a fair balance between the demands of government buyers and vendors.

"The best deal for an agency is not necessarily the best deal for the system as a whole," said a member of the Part 15 rewrite team at a recent meeting. "If we do something that drives competition out of our marketplace, and [the vendors] are not there next time, that's not good for us."

Vendors have yet to weigh in on the rewrite, but they say the shape of the final regulations could have a major impact on the information technology market.

"Part 15 is how you buy IT; it is the most important part of the FAR," said Olga Grkavac, vice president with the Information Technology Association of America's Systems Integration Division.

A public meeting scheduled for tomorrow is likely to feature discussion of several potentially controversial ideas, including exempting commercial items from a variety of purchasing rules and giving contracting officers more leeway to define the competitive range for a procurement.

Steven Kelman, administrator with the Office of Federal Procurement Policy, said any new regulations in these areas could not go as far as the statutory changes proposed in Congress that were bitterly opposed by some vendors.

"We are not allowed to do by regulation anything we do not have statutory authority to do," he said.

As in the legislative debate, a major area of tension in the rewrite is likely to be how broadly the government should be allowed to interpret the Competition in Contracting Act (CICA), which demands that virtually any vendor be allowed to bid on federal contracts.

Some contracting officers have suggested they want to "backtrack on" CICA and be allowed to consider proposals only from vendors they deem qualified to bid for a job.

"The goal of maximum competition should not rule everything we do," suggested an Army contracting officer at a recent meeting of the Front-Line Procurement Professionals Forum, a group that meets regularly with Kelman. "A proposal has to be technically acceptable or not on its own."

But another contracting officer suggested the government needs to consider what industry thinks about the system.

"Don't they want process?" he said. "Aren't they concerned with the government pulling things out of the air?"

Among other ideas, procurement officials are urging the rewrite team to emphasize the general approach they should take to buying rather than any specific process.

"Part 15 is really written around a `mother may I' process," said Michael Iacangelo, a contracting officer with the U.S. Mint. "There's no place in there that talks about market research.

"What you end up with," he added, "is people who are so concerned about ritual that they forget a fundamental of the process, which is knowing the market."

Kelman has suggested reworking parts of the regulation to clarify which procedures are required by law and which are optional. Contracting officers complain that their agencies interpret the regulations more rigidly than they need to, preventing them from taking actions that are permitted.

"There are too many of us who regularly use the FAR as both a sword and a shield, depending on our particular requirement," said David Drabkin, a procurement reform analyst with the Defense Department, in a recent posting to an on-line discussion of Part 15. "If we reorganize the FAR so that it is clear...whether a portion is directive or advisory, it would be apparent on its face and eliminate discussion of what is or is not mandatory."

Though he is a member of the rule-writing team, Drabkin said his remarks were his own opinion and did not represent any official position on the issue.

Meanwhile, contracting officers said easing the rules that govern how they may communicate with vendors would lead to better, more efficient purchases. Vendors have also asked to have more open discussions with their customers.

One former federal contract officer said giving vendors more information about how they are being evaluated would reduce litigation more effectively than any proposals to limit who can compete.

"Most firms will not protest if they believe that they were given a fair shot at the contract," said Clifford Bennett, who worked at the Labor Department and Federal Aviation Administration before retiring last year.

At Labor "the debriefings were sometimes pretty heated, but usually the firm went away with the sense that it had been treated fairly, and we did not have a great many protests," he said.

The government expects to have new Part 15 regulations in place by October.

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