THE BOTTOM LINE
Incidentally, GSA, court are at odds
By Bob Little
Special to GCN
'Honey, I'm home!' yells Spouse 1, coming through the door.
Spouse 2 responds, 'Been shopping?'
S1: 'Yeah, just picked up some incidentals.'
S2: 'Oh, what kind?'
S1: 'Just some computer thingy-dos.'
S2: 'That's nice. How much did you spend?'
S2: 'What in the world could almost a quarter of a million dollars be incidental to?'
S1: 'Oh, about $414,294 worth of information technology.'
S2: 'You can't be serious!'
Several years ago, this conversation could have taken place in the Court of Federal Claims. For S1, substitute the agency's contracting officer, and for S2, substitute the judge.
The judge was not amused. He had come to believe that if you are going to pay more than $2,500 for something, you should hold a full-and-open competition.
The contracting officer said, 'No problem, your honor. The IT I bought off the General Services Administration's Federal Supply Schedule. The incidentals were incidental things I bought from the guy who sold me the things that weren't incidental. No big deal.'
The judge didn't see it that way. He enjoined performance of the contract because, to paraphrase: This here's illegal, and the court won't stand for it. There's no incidentals rule under the 1984 Competition and Contracting Act, and you'd best straighten this out.
Well, you might guess what GSA did. You might guess that GSA published the mea culpa of all mea culpas, to wit:
'Our fellow agencies, we admit we have sinned against you and against CICA, and we are repentant. How repentant? Today, we canceled every multiple-award FSS contract containing that hideous and unspeakable incidentals clause, and we intend to award new ones, no matter what the cost.
'Our sins have led you astray, dear agencies, for you have followed our example and, dare we say it, violated one or more actual laws of these United States. Can you ever forgive us? We sincerely hope so.'
But you'd be a really bad guesser. Actually, GSA more or less ignored the judge. Besides, GSA must have reasoned that there's more than one forum where the incidentals rule is considered a good rule.
At least there was. Several weeks ago, the General Accounting Office decided to align its decisions regarding incidentals with the Court of Federal Claims. In the recent case'Pyxis Corp., B-282469, July 15, 1999' GAO held that it was overruling precedents inconsistent with the Court of Federal Claims ruling.
Admittedly, neither the Supreme Court nor any federal appeals court nor any U.S. District Court has ruled on this matter.Carry this out
Now here's your homework assignment. Clip or bookmark this article. Then, about a month from now, go to pub.fss.gsa.gov/vendorguide/section-b.html
. See if there's a clause like this: 'Incidental Items: For administrative convenience, noncontract items may be added to the FSS blanket purchasing agreement or the individual task order if the items are clearly labeled as such, applicable acquisition regulations have been followed, and price reasonableness has been determined for the items.'
If there is, you'll have some idea of how GSA proposes to treat this matter.Bob Little, an attorney who has worked for the General Accounting Office and a Washington law firm, teaches federal contract law. E-mail him at email@example.com.