Changing th FAR won't necessarily change the rules

Every now and again, what passes for truth in the acquisition
business is much stranger than fiction.

As an example, consider a plan to amend the Federal Acquisition Regulation by deleting
a sentence. The removal of this sentence has been proposed by none other than--no kidding,
folks--the Department of Defense Procurement Process Reform Process Action Team.

The team acronym's is DODPPRPAT and its motto is: Process is our most important
process. This is the world's only acronym that could be mistaken for automatic weapon
fire. Just try to say it five times quickly.

In any event, the apparently offending sentence, found at FAR 15.609(a), states that a
contracting officer should err on the side of inclusion when there is doubt about
including a proposal in the competitive range. Which is to say, where the CO has a doubt
as to how the future will turn out--and who doesn't?--with regard to whether a particular
proposal will have a reasonable chance for award once all discussions have closed, then
the CO should retain that vendor's proposal in the competition.

Normally, a notice of proposed rule-making carries its own justification statement
telling us a little about the problem to be addressed. This one says it was recommended by
the DODPPRPAT but doesn't tell us why.

Rather than speculate, it seemed prudent to engage the services of that super sleuth
King Oxnard, procurement detective. He did not disappoint. What follows is his report.

"I was working the procurement beat back in May 1973 when I noticed that the rules
had changed. For better or for worse, I couldn't tell. See, there was a big problem, and
frankly, no one knew how to solve it. The problem was competitive range.

"A law passed by Congress and signed by the president used the phrase 'competitive
range,' but nobody was too sure how to tell who was in it. The comptroller general was
confused, and he, in turn, confused everyone else.

"Sometimes the competitive range had to be established after considering both
price and technical capability of proposals. Other times, cost didn't have to be
considered. Sometimes proposals that were acceptable or capable of being made acceptable
were in the competitive range. But even if you had an acceptable proposal, you still might
not be in the competitive range if there was no realistic chance of award.

"The new rule issued in 1973 said the competitive range consisted of all proposals
that had a reasonable chance of being selected for award. Doubts about the chances for
selection should be resolved in favor of inclusion, it said. Which is of course the rule
that survived the FAR transition, Competition in Contracting Act and Federal Acquisition
Streamlining Act.

"For the record, the comptroller general took the position in December of 1973
that the current interpretation of the law was what he had been saying all along, i.e.,
proposals should be in the competitive range if there was a meaningful possibility that
they could be improved by written or oral discussions to the point of being acceptable for

"The comptroller general even went so far as to say that a proposal should be
considered within the competitive range unless the cost was so high or the technical
proposal so inferior that meaningful negotiations would prove impossible.

"With that bit of folklore under my hat, I approached John Wesley James Ewell
Brown Hardin ('call me JWJEBH') Stewart, one of the processors of DODPPRPAT.

"I suffered a tongue cramp midway through trying to say his nickname, but finally
I asked, "How come you guys are picking on one pitiful little sentence, anyhow?'

"JWJEBH replied, "We didn't think anyone would notice. We decided to chip
away at FAR Part 15, one sentence at a time over a seven-year period, so that its
elimination entirely would coincide with the balanced budget. We put all the sentences in
a hat and that's the one that was drawn. Now you know, wanna do something about it?'

"Thinking that discretion was the better part of valor and knowing I'm your basic
coward, I scuttled away.

"But I figure to get the last laugh. I know something that JWJEBH doesn't know
because he was in third grade in 1973, whereas I was already a high school dropout. Nobody
changed the law that all those confusing comptroller general decisions interpreted. It's
still on the books.

"The only thing that will happen when the rule is removed from the FAR is that it
will be harder to find. Hah!"

Bob Little, an attorney who has worked for the General Accounting Office and a
Washington law firm, now teaches federal contract law

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