FEDERAL CONTRACT LAW: Joseph J. Petrillo

Government's use of Web has winners and losers

Joseph J. Petrillo

The federal government deserves high marks for rather quickly making available via the Internet a lot of information that had been difficult to find. Now all manner of laws, regulations, directives, instructions, guidance and commentary is available to anyone with access to the Web.

Some government Web sites display a sense of humor, or at least whimsy. The IRS, of all places, styles its site as the front page of a tabloid newspaper.

Unfortunately, the Defense Department has cut public access. DOD sites were a favorite target of hackers. It seems that no electronic intruder feels complete until assaulting a Defense site. This factor, amplified perhaps by the military's fear of too much openness, led some DOD sites to bar those outside the defense community.

Another government function, procurement, is a natural for the Internet. Good contracting depends on quick, accurate communications and open dissemination of information. Here, however, the feds have racked up as many failures as successes. In particular, when the government pursues a unique solution instead of building on private-sector successes, it does not fare well.

Some efforts are too new to judge. The jury is still out on whether so-called electronic malls aimed at federal procurement deliver results for the government buyer.

The ultimate in fast-track procurement is a purchase made by credit card from an Internet site. But these buys are too numerous and too small for effective scrutiny, so no one knows if they represent good value.

Publicizing contracting opportunities seems like a killer app for the Internet, but reality falls a bit short. Before cyberspace, notices of upcoming procurements and actual contract awards appeared in print in the Commerce Business Daily. This tabloid, crammed with entries in agate type, landed in bidders' mailboxes eventually, but sometimes too late to do them any good.

Missed opportunity

More recently, the CBD has gone electronic. But numerous exemptions sap the usefulness of this publication. Orders under indefinite-quantity contracts and Federal Supply Service schedule contracts need not be posted'in advance or even when placed. Thus, the CBD is of little help in an area where it could do the most good: enhancing competition for small buys.

E-mail, on the other hand, has become a contracting boon. I found this out firsthand when my firm submitted a proposal to the General Services Administration for a contract under the Management, Organizational and Business Improvement Services Schedule. Two signed pages were mailed, but the rest of the proposal was transmitted the way it was written: electronically. In Section 4.502, the Federal Acquisition Regulation encourages this by stating that terms such as 'document,' which are associated with paper transactions, don't rule out the use of electronic commerce.

Other government functions will be affected by the Internet, but in ways difficult to imagine. The Net is truly revolutionary when it makes possible completely different solutions to common problems. But legal or social obstacles can get in the way.

For instance, it might be possible for the government to buy commodity-type items through an online auction. But this could require a change of regulations governing procurement and perhaps the underlying law as well.

One could imagine filing a simple tax return by filling out an online form at an IRS site. That hasn't yet happened, in part because the IRS has chosen to team with for-fee companies offering tax preparation systems and services. The IRS could make those services available in their simpler forms at no cost, but that would undercut the private purveyors of tax services. The same problem bedevils the Securities and Exchange Commission, which compromises its public dissemination functions by making some information available first to paying subscribers.

More radical concepts for electronic government include cyberdemocracy, in which political questions would be decided by online referenda. This would not have been the approach of the Founding Fathers. In Federalist Paper No. 55, James Madison wrote: 'In all very numerous assemblies, of whatever character composed, passion never fails to wrest the scepter from reason. Had every Athenian citizen been a Socrates, every Athenian assembly would still have been a mob.'

The Internet is a godsend for commerce. It may be the opposite for government.

Joseph J. Petrillo is an attorney with the Washington law firm of Petrillo & Powell, PLLC. E-mail him at jp@petrillopowell.com.

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