Vendors criticize proposed language in FARA regulations

A group of vendors who last year opposed a law that gives contracting officers more leeway to choose competitors in a procurement is now objecting to regulations designed to carry out the statute.

Jody Olmer director of domestic policy with the U.S. Chamber of Commerce said there are "big problems" with a rule proposed in July that would let procurement officials consider "efficiency" when defining the competitive range for an acquisition. She said members of the newly formed Full and Open Competition Coalition which also includes AT&T Sprint the Computer and Communications Industry Association and some small-business trade associations believe the rule will result in agencies arbitrarily excluding companies from being finalists for contracts.

The rule would guide agencies in applying provisions of the Federal Acquisition Reform Act (FARA) that were among the most controversial during debate about the law last year. Advocates for the law argued that if agencies could consider only proposals that have the greatest likelihood of winning agencies and vendors would be able to save time and money.

Vendors have that they would prefer to be told when they are unlikely to win contracts so that they do not waste mon-ey on quixotic bids but they are divided about whether they should be allowed to remain in competition if they choose.

Fair to Small Companies?

In general opponents maintain that the rule would hurt small businesses arguing that contracting officers would tend to reject such companies because they might be unfamiliar or lack a long track record with the government.

Olmer said vendors particularly object to proposed language that would let contracting officers consider "the resources available to conduct the source selection" in their decisions. "It could be `We're short-handed so we can only accept two bids on this one ' " she said.

The proposed rule states that contracting officers would have to notify vendors in the solicitation that they intended to limit finalists to the "most highly rated proposals." Proposed solicitation provisions would warn bidders that they should submit their best offers in their initial bids.

Jere Glover chief counsel with the Small Business Administration's Office of Advocacy said in a recent letter to the Federal Acquisition Regulation Secretariat that regulators did not consider enough alternatives that would have less of an effect on small companies. "This is a very controversial proposal that could significantly impact small firms " he added.

An analysis produced by the rule-makers outlining how the proposal might affect small businesses concluded that it would not result in small companies being treated any differently than large ones. "One of the overarching concerns in drafting the proposed rule was to continue to provide fair and equal treatment for all proposals " the analysis said and any preferences for small business in a given procurement would continue to apply.

DECKRewriting Part 15 of the FAR

Robert Kenney an attorney with Ho-gan and Hartson Washington D.C. said the proposed rule cannot be considered separately from another more-extensive effort to revise competition requirements - a pending rewrite of Part 15 of the FAR. Proposed revisions to Part 15 which sets the rules for negotiated procurements are due out this week and drafts seem to echo the proposed FARA regulation.

Administration officials could not be reached for comment last week.

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