Federal Contract Law: Remember when CICA, GSBCA held sway?

Joseph J. Petrillo

GCN last month celebrated its 20th anniversary, so I looked back over my first columns. When I started in 1984, the hot topic was the recently enacted Competition in Contracting Act. The IT community was also interested in the new bid protest jurisdiction of the General Services Administration Board of Contract Appeals.

In the 1980s, water-cooled big iron still ate up most of the federal budget for automated data processing, as we called it. An entire industry of systems integrators grew up. These entrepreneurs would assemble large systems, using components bought from whatever manufacturers would offer the best deal. Competition was fierce, and only ever-falling hardware prices preserved the contractors' margins.

Now components are smaller and cheaper, and integrators are an endangered species. Agencies are likely to pick out what they need from GSA schedules, somewhat like buying a shirt from a Lands' End catalog.

Back then, one cutting-edge legal issue was whether it was OK to buy personal PCs only from IBM or whether 'clones' had to be considered, too. Compatibility concerns among PCs seem quaint now, but frequent system crashes and regular reboots are still with us.

Software was gaining, as a percentage of expenditures, and it continued to do so. Contracting for software development was a major challenge then and still is now. But improved development tools and off-the-shelf packages have taken some of the risk out of the projects where they can be used. If anyone has written the foolproof contract model for software development, I haven't heard of it.

For a decade after its enactment, CICA delivered on its promise: a more competitive contracting environment. Its effects on the system were pervasive, from planning to protests.
During this period, the GSBCA was competition's vigilant watchdog in the IT world. Anyone who felt that the bidding process wasn't fair could complain, and stood a good chance of winning the protest. Some thought the GSBCA was a little too vigilant, causing too much delay and disruption. In 1995, they had their way, and the Clinger-Cohen Act revoked the GSBCA's bid protest jurisdiction.

Since the mid-1990s, the pendulum has more than swung back. True competition in contracting is no longer the norm, thanks to umbrella indefinite-quantity contracts, GSA schedules, governmentwide acquisition vehicles and purchase cards.

The acquisition system seems less competitive now than it was before CICA. I say 'seems' because huge dollars are spent in ways that defy disclosure and analysis.

When I started writing for GCN, contracting officers were fearsome figures. They alone had the power to bind the government contractually. Some saw themselves as a bulwark against spendthrift program officers. Now, every civil servant with a purchase card in wallet or purse is a contracting officer, at least to the available credit limit. Holders of 1102-series jobs are in danger of degenerating into a corps of glorified order clerks.

Twentieth anniversaries are also a time to look forward. But after reflecting on the past, I wouldn't dare try to predict the future.

Joseph J. Petrillo is a lawyer with the Washington law firm of Petrillo & Powell. E-mail him at [email protected].

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