Lawyers group questions legality of GSA proposals

The American Bar Association last month submitted comments to the General Services Administration that question the legality of proposed changes to the multiple-award schedules (MAS) program such as removal of synopsis requirements and maximum-order limitations.

Ron Hutchinson vice chairman of the ABA's commercial products and services committee said some of GSA's proposed rules to establish new ordering procedures for MAS contracts could be illegal. He said his committee recommended changes to the proposed rules that would put the government on more sound legal footing.

Hutchinson said GSA lacked authority to remove a requirement that agencies advertise procurements worth more than $50 000 in the Commerce Business Daily. He cited a 1992 General Accounting Office report on MAS purchasing that supported the ABA view. He added that it was unclear whether procurement changes detailed in the Federal Acquisition Streamlining Act (FASA) and the Federal Acquisition Reform Act (FARA) allowed GSA to lift synopsis requirements for nonmandatory schedule contracts.

The ABA also said GSA's decision to allow agencies to place MAS orders in excess of maximum-order thresholds may violate the full-and-open-competition requirements of the Competition in Contracting Act. The association cited a 1992 protest decision by GAO that said GSA's then-existing "requote" procedures violated CICA because they allowed only vendors holding schedule contracts to bid on agency orders that exceeded maximum-order limitations.

Hutchinson said the government could obtain a better legal basis for the proposed rule changes if the rules were revised so that MAS contracts specify a ceiling on the dollar value or quantity of products that will be bought through each contract. He said such a move would make MAS contracts "look more like task and delivery orders" that are covered by provisions within FASA and FARA.

Larry Allen executive director of the Coalition for Government Procurement said he strongly disagreed with the ABA's comparison of the current nonmandatory MAS procedures with those from 1992.

"Today no agency is required to use schedules like they were in 1992 " Allen said. "Furthermore when agencies buy more than the maximum-order limitation today the agency can now decide for itself what procurement vehicle it wants to use. So ABA's contention that GSA wants to go back to the requote days is not at all accurate."

The GSA committee charged with reviewing the comments will analyze the ABA recommendations this month.