Don't add rules on flexible contracts, vendors say

ksaldarini@govexec.com

Adding more rules to the Federal Acquisition Regulation about multiple-award contracts will serve only to damage the procurement vehicles that have made federal IT acquisition easier, speedier and more cost-effective, an industry group argues in a new report.

Multiple-award contracts such as a governmentwide acquisition contracts (GWACs) have improved the efficiency of federal IT procurement by allowing agencies to share contracts with other agencies for a fee. But GWACs have come under attack for allowing contracting officers to identify preferred sources, rather than giving all vendors a fair opportunity to compete.

Congress recently took an interest in the issue. The 2000 Defense Authorization Act, enacted Oct. 5, requires that the FAR be revised to prevent inappropriate use of such contracts. And rules recently proposed in the Federal Register would also prohibit the designation of a preferred source for governmentwide contracts.

But, according to one industry expert, adding more regulations is never the right solution in the federal government.

"We think it is in the spirit of acquisition reform to do these things through policy and through problem-solving tools," rather than through regulations, Professional Services Council president Bert M. Concklin said.

Last week, the Professional Services Council, which represents federal contractors who provide professional and technical services, released a position paper on GWACs detailing steps agencies can take to self-police their contract awards.

Encouraging agencies to develop stronger performance-based work statements is the first step in building competition, the report said. Performance contracts encourage contractors to come up with cheaper and better ways of accomplishing work because they don't require that outcomes be accomplished in a certain way.

"If contract sponsors are reasonably attentive to work statements, then you will tend to have a better degree of competition because people will understand the rules of the game," Concklin said.

Agencies should ask all prospective contractors if they intent to bid on a contract, the report said. If only one contractor intends to bid, it should be a clear indication to agency officials that they need to reexamine their proposal to ensure open competition, Concklin said.

Finally, agencies should track the outcomes of GWAC competitions using a simple spreadsheet to see if patterns of single bidders emerge. "If those stats look wildly out of line, management should review the situation and say 'Are we doing this right?'," Concklin said.

Such policy and procedural changes, combined with increased training, will be more than enough to solve problems with fair opportunity, the report said, without requiring statutory or regulatory intervention.

The problem with agency regulators, Concklin said, is "they'll construct an idea in the strongest, most freedom-limiting way." Regulations also make industry more conservative, he said. "You dampen and thwart creative and innovative use of discretion when you push things through a regulatory filter."

Members of Congress are struggling with how to address the fair opportunity issue, according to a Senate Governmental Affairs Committee staffer.

"The feeling is that we need to get a handle on how this is all working before we rush to legislate," the staffer said. "Clearly, in the past, Congress has been quick to legislate when a problem has been uncovered. I don't think that is how we would react."

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