VA's Frye sees flexibility in the Federal Acquisition Regulation

Jan Frye has had an unusual opinion about the Federal Acquisition Regulation for the quarter-century he’s been in government procurement: He believes the FAR is inherently flexible.

From his perch as  deputy assistant secretary for acquisition and logistics at the VA, Frye is seeing agency leaders embrace more cutting-edge approaches to procurement. And the new mind-set is letting him reuse some procurement techniques from long ago — such as having contractors help write a contract’s requirements. Frye did it years ago when he worked for the Army, where he spent most of his 25 years there in procurement, to develop contract requirements for shipping containers for the Defense Department. 

Frye spoke recently with Federal Computer Week senior editor Matthew Weigelt about that contract and the new procurement environment.

FCW: Tell us how you approached the DOD contract for shipping containers.

Jan Frye: The FAR's organizational conflict-of-interest provisions really prohibit contractors from participating in an acquisition. There are three exceptions, though. Those three exceptions are:

1. If it’s sole source.
   
2. If the firm has participated in the development and design of the work.
   
3. Or — and this is important — if more than one contractor has been involved in preparing the work statement.

Because we didn’t have the answers [to write good requirements], the general came to me and said, “Jan, what do you think we should do?” I said, “The obvious solution to me is to go to the people with the answers.”

We went to several industry associations, and we asked them to nominate some firms from their association who might be interested in participating. Needless to say, we had many more firms raise their hands than we had room for.

To make sure that everyone understood what was going on on a daily basis, we hired a firm to facilitate the [integrated product team] process. Now at the end of each day, they were required to upload the entire proceedings from that IPT process of the day onto a Web site, which was then accessible to anyone.

So in theory, anyone in the industry that had a further interest in this [and] thought they might want to bid on the requirement down the road had access almost on a real-time basis to what was going on.

So three things happened there. First, the industry partners were selected by industry associations, not the government. The playing field was kept level due to the fact that we uploaded information on a daily basis so that everyone concerned would have updated information. Third, it wasn’t one contractor helping, it was multiple contractors helping us.

I want to emphasize that the contractors had no final say so on anything. They were there simply to assist us in the development of our requirement.

FCW: Were there any protests?

Frye: There were absolutely no bid protests from anyone.

In fact, industry likes this. It is very informative for industry. It gives industry a chance to stand up and say, “Look, there is a better way of doing business, perhaps, than what you've considered.”

FCW: What concerns did you have?

Frye: My primary concern was that we would get a protest from someone who didn’t participate and that protest would lead us to disqualify those firms that helped us and participated in the IPT process. But they probably thought since more than one contractor had been involved in preparing the work statement, that’s not an organizational conflict of interest.

FCW: You’ve proposed similar approaches to current VA contracts. How have the department's leaders reacted?

Frye: I believe the leadership with the VA, the secretary and the deputy secretary, get it. They understand that procurement and acquisition are absolutely critical, that they must be done properly, that we’ve got to use common sense and stay within the confines of regulations. We must reach out, and we’ve got to do some things differently in order to redefine the Department of Veterans Affairs.

FCW: What can other agencies learn from your experience?

Frye: I think that those of us in the acquisition community need to start thinking outside the box. I think that in many cases we hide behind the FAR. We like to say, “It’s a very onerous, dictatorial way of doing business.” I don’t look at it that way. I look at it as a guidebook that has a lot of flexibility. We just have to be smart enough to look at the FAR, decide where we want to go and find a way to get there.

Our contracting officers [are] supposed to be business advisers. Business advisers find ways to do things. Business advisers don’t deny the customers something that is a reasonable request.

This isn’t something that you do on a daily basis for a run-of-the-mill requirement. This is something you do for a high-dollar, complex acquisition. So, in my terms, the juice is worth the squeeze. You need to spend a little more time. You need to spend a little more money in the development of the requirement because it is high dollar, it’s quite complex, and this helps ensure that the requirement is properly defined and executable by industry.

FCW: Any other pointers?

Frye: First of all, the process has to be totally defined. Everybody, including general counsel in any organization, has to be on board with the process.

And I think in some cases that the requiring activities aren’t comfortable with this kind of situation.

That’s the old-fashioned way, if you will, of doing business. I think we do want industry involved in helping us define our requirements because that’s where the cutting-edge technology is. That’s where the best and the brightest ideas come from. Whether it’s small business or large business, they come from both sides.

I suspect that there are many program managers who would love to have extra help, extra hands, extra eyes, extra brains helping them find their requirements. But if people perceive it to be too tough, they are not going to go down that road.

We get caught up in the day-to-day business, “this is the way we’ve always done business” type of mode.

In my estimation, we need to push forward across the government to get industry more involved in the development of our requirements — especially in those areas that are complex, high-dollar and vexing.

FCW: What do you find intriguing about the acquisition field?

Frye: It is full of challenges. I guess I got into it because it is tough to do.

It’s a career field where most of the processes are nonlinear. It’s where you can have a procurement change overnight, so you’ve got to be flexible. There is always controversy. There are always challenges from industry. It is a complex, dynamic field that I enjoy.