SARA rules still taking shape

Now that the Services Acquisition Reform Act has passed into law, procurement experts are waiting to see the form of rules that will implement the law. No rules have yet been proposed.

Although the legislation is good in theory for services procurement, the wording of agencies' rules will affect the application of the act, and it could contain some pitfalls, said John Howell, a partner at Dorsey and Whitney LLP. Howell was speaking at a conference in McLean, Va., sponsored by the nonprofit trade group Coalition for Government Procurement.

Rep. Tom Davis (R-Va.), chairman of the Government Reform Committee, spearheaded the drive to get SARA passed for a second time last year. Although some provisions were taken out as the bill worked its way through Congress, major provisions passed.

According to the act, most agencies will have a chief acquisition officer. The government will establish a fund for acquisition workforce training. And some services procurements, those valued at under $25 million and with performance-based requirements, will be treated as streamlined acquisitions.

"It means various laws are rendered inapplicable at both the prime contract level and the subcontractor level," Howell said. "This is the incentive" to use performance-based contracting.

SARA accomplishes this by using a commercial designation for such deals. "What bothers me about this is the idea that if you do not have a performance-based [contract], that may not be deemed commercial," Howell said.

The rule enacting that part of SARA should ensure that the commercial label isn't limited, he said. "The key here is to watch the requirements process," he said. "The first rule should be, 'Do no harm.'"

Meanwhile, Davis plans to try again to get the remaining parts of SARA, including extended share-in-savings authority, passed into law, said John Brosnan, senior procurement counsel for the Government Reform Committee.

There are other matters on the agenda this year, he added, including competitive sourcing under the Office of Management and Budget's Circular A-76. So in addition to work on SARA, "We're also thinking about some governmentwide reporting requirements," he said. "Maybe some protest rights for federal employees that lose an [A-76] competition."