No consensus on rewrite of Part 15

Reforming federal procurement means, in part, redefining key concepts in the Federal Acquisition Regulation, according to one former contracting law professor.

"Almost all operative words are not defined properly or need redefinition," Ralph Nash, a professor of contract law who is retired from The George Washington University, told officials at a public meeting about the pending rewrite of Part 15 of the FAR. These words include "proposal," "deficiency," "weakness," "clarification," "discussion" and "technical leveling." Clarifying their meanings could rid contract negotiations of some burdensome procedures, he said.

But at the same time, however, Matthew Brislawn, vice president of contracts with Boeing Defense and Space Group, cautioned against "a wholesale rewrite" of the FAR, including Part 15, because "it would introduce new terminology and criteria" that would be contrary to established practices.

In written comments, other vendors and federal contracting officials agreed that Part 15 should be rewritten, particularly to improve communications between the government and its suppliers. While there is not yet a consensus about how exactly to do this, almost everyone agrees that the results will have a major effect on how agencies choose their suppliers.

Part 15 governs how the government goes about spending all but a small percentage of the money used to purchase goods and services, including most information technology.

"There is plenty of reason to improve the FAR, to make things more clear," said Terry Miller, president of Government Sales Consultants Inc. "You ought to, every 10 years, get it rewritten again," he added, noting that it has been more than a decade since the last FAR rewrite.

Steven Kelman, administrator of the Office of Federal Procurement Policy, told a nearly full auditorium that "streamlining our source-selection process is a strategic issue for the acquisition process."

Procurement policy makers are advocating a change in the format of the regulations to delineate mandatory procedures from "best practices." Many procurement practitioners say contracting officers interpret suggested practices as requirements.

Brislawn said that whether such a change would succeed will depend on how agencies interpret the new rules. "Anything that is not specifically mandatory but is nevertheless suggestive of good practice will be interpreted as, `I'd better do it this way because...I'm expected to follow the best practice.' "

One way to counter that impulse, he said, might be to penalize officials who add unnecessary requirements to procurements.

Nash suggested that updating the meaning of key terms in the FAR could help agencies and vendors to communicate more effectively. For example, he said, what makes up a proposal is interpreted more broadly than it needs to be legally.

"You get the sense that it is every single piece of paper asked for," including capability statements or cost and pricing data, Nash said, rather than just the parts of a vendor's offer that describe what materials or services all vendors promised.

That hampers contracting officers from asking vendors about their qualifications and related matters without talking to every other bidder about the same subject.

That is because talking about what is in a vendor's proposal is considered a "discussion," or a negotiation about the vendor's offer, and the FAR requires all bidders to be treated equally in such talks.

Other people at the meeting had other suggestions. Government Sales Consultants' Miller suggested the FAR should give agencies guidance on computing products' life-cycle costs.

In written comments, Victor Loun, director of contracts with Radix Systems Inc., Rockville, Md., said the FAR should better protect the intellectual-property rights of vendors who make unsolicited proposals to the government.

Cheryl Koshuta, manager of Lockheed Martin Idaho Technologies Co., proposed that Part 15 be made optional for large commercial-item purchases. Such products could be evaluated based on standard criteria, she added.

Meanwhile, James Warrington, principal assistant responsible for contracting with the Army Chemical and Biological Defense Command, said the "real problem" with contracting procedures is not the FAR itself but agency supplements. The FAR also "needs some tweaking to integrate newly discovered concepts," such as best value and oral presentations.

As part of the Part 15 rewrite, OFPP has asked agencies to review their FAR supplements for unnecessary requirements and to suggest practices that should be extended governmentwide.