FAR Part 15 rewrite leads to confusion as much as conclusion

I am of two minds about the revised Part 15 of the Federal Acquisition Regulation. For
that matter, the new rule seems to be of two minds. It points in opposite directions on
several important issues.


The schizophrenic nature of the new regulation appears in its first change. According
to the rewrite, "All contractors and prospective contractors shall be treated fairly
and impartially." So far, so good.


But the sentence continues: "... but need not be treated the same." (Someone
must have been reading "Animal Farm.")


What about situations in which being treated fairly means being treated the same as
another vendor? In that case, which part of the sentence takes precedence? Can fair
treatment mandate equal treatment? Or, can the exemption for treating vendors not the
same, excuse treatment which otherwise might not be fair and impartial? Wait and see.


Another example is the regulation encouraging information exchanges between the
government and industry. The freer exchange of information has many potential benefits,
but it also poses some risks, as the FAR acknowledges.


So the FAR directs that when one bidder gets information about an acquisition that
"would be necessary for the preparation of proposals," the agency needs to make
the information public "to avoid creating an unfair competitive advantage."


But such information "shall not be disclosed if doing so would reveal the
potential offerer's confidential business strategy." What if both are true: the
information would reveal the bidder's strategy, but it still is necessary to prepare
proposals? The regulation gives no guidance.


For that matter, what about information that isn't necessary to prepare a proposal but
is highly desirable? Wouldn't failure to release such information to the other competitors
create "an unfair competitive advantage?" If so, then why shouldn't it be
released, too?


Speaking of unfair competitive advantages, the new regulation drops the former
prohibition on technical leveling. The term refers to the practice of multiple,
highly-detailed negotiation rounds that result in several bidders having essentially equal
proposals from a technical perspective.


As a result, low price becomes the sole discriminator between the proposals, and it
becomes determinative, even if the evaluation criteria nominally make technical factors of
greater importance than cost.


When the government levels the proposals, doesn't it deny offerers with superior
initial proposals impartial and fair treatment?


Finally, the new FAR Part 15 is too ambivalent to be summed up in one appraisal.
Instead, I give the rewrite two grades: an A' and a D+, depending on the sections you
read.


Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo &
Associates. E-mail him at jpetrillo@counsel.com.


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