Fairness should go first to the customer, not to the contractors
OK, here's an image:
A man standing in front of a dollar-bill changer, an intravenous bottle and several
portable electronic monitors in tow. On the face of each of the monitors is a slot over
which the legend "Quarters Only" appears in bold type. A sign on the door reads
The man is staring at the bill changer, which has just returned his dollar bill. Dollar
bills lay strewn on the floor. The lights on the monitors begin to go crazy. The caption:
First coin-operated intensive care unit. Sound far-fetched?
OK try this one:
The government wants to engage in electronic commerce. It decides to post its needs on
electronic bulletin boards run by value -added networks. Everyone else in the universe
pays to establish their own bulletin boards. The government wants free lunch.
The buyer, the government, requires vendors to pay for bulletin boards that it
establishes for small purchases. The vendors, predictably, say, "No thanks, buy your
Sound far-fetched? Welcome to FACNET, the government Federal Acquisition Network
Shall we try again? My most recent Internet surfing landed me at a World Wide Web home
page devoted to the rewrite of Federal Acquisition Regulation Part 15. I found the site,
the Acquisition Reform Network or ARNET, at http:/ /www-far.npr.gov.
The Office of Federal Procurement Policy is overseeing the rewrite team and created
ARNET to provide updates on the team's work and get public comments.
Among the ARNET postings is an intriguing pair of questions. Should the FAR imply that
an award can be made on the basis of low-cost/technically acceptable (LC/TA) proposals?
Should the FAR allow only best-value procurements? To make both the items regulations
would be to create a pair of rules at odds with each another.
What's more, the questions raise a more troublesome question about the team's
preparation, because the FAR already expressly permits LC/TA awards at FAR 15 2E605(d)(2).
Let's hope the Part 15 rewrite folks actually have read or will read the FAR before
getting too far into rewriting it.
A lot of the other items posted on ARNET about the Part 15 rewrite seem pointless. The
postings make one wonder what experience the team actually has for trying to rewrite the
FAR section devoted to innovative procurement techniques.
Consider this composite comment found on the home page: Adding flexibility means more
discretion to be common-sensical while permitting the balancing of dynamism and the
advantages of outcome-derived functional input factors.
What does this mean? Of course, the beauty of using jargon-speak is that any question
asked about the proposals merit can be answered with: "It depends."
If the rewrite team were really serious, the FAR 15 rewrite would simply start from
scratch and revisit the government's basic premises about contracting. It would start by
redefining full-and-open competition and not by rearranging the proverbial acquisition
How about a posting suggesting that full-and-open competition means letting vendors ask
all the questions they want and requiring the government to respond to all the
questions--even though some vendors might get better answers than others because they ask
In other words, let sales people sell and let buyers not hide their oft ill-defined
needs behind the excuse of fairness to all vendors. Make fairness to the customer, in this
case the government, the first priority.
One respondent to the team's proposals expressed deep concern that the government would
use the changes in the FAR to award contracts to its favorite vendors. Hello?
Assuming that the vendor became the so-called "favorite" because of excellent
service at reasonable prices, what is wrong with that? If we assume that the vendor became
the favorite based on the corruption of the acquisition process, neither the government's
competitive negotiation nor its sealed bid requirements will serve as antidotes anyway.
Indeed, one wag on ARNET noted, "The only really effective way to enforce
collusive bidding is the holding of public bid openings."If we proceed on the
assumption that bidders won't bid collusively, shouldn't we also assume that agencies will
select sources on the merits of their proposals and not because of improper favoritism?
Think about it.