Government procurement in the United States
[5] Federal Procurement Reports provide contract data which may be used for geographical, market, and socio-economic analysis, as well as for measuring and assessing the impact of acquisition policy and management improvements.
U.S. Federal fiscal law is about Congressional oversight of the Executive Branch, not principally toward getting the mission accomplished nor getting a good deal for the Government.
The power within fiscal law comes from the Antideficiency Act (ADA), which provides that no one can obligate the Government to make payments for which money has not already been appropriated.
The ADA is directly connected to several other fiscal laws, namely the Purpose Act and the Bona Fide Needs Rule.
It applies to all Federal Government activities carried out with appropriated funds, including contract, grant, and cooperative agreement transactions.
The Procurement Integrity Act (PIA),[14][15] introduced after a three-year FBI investigation launched in 1986 known as "Operation Ill Wind", applies to persons who engage in federal source selections and includes prohibitions on gifts being given to source selection personnel, restrictions on the dissemination of procurement sensitive information and post Government employment restrictions.
[16] President Kennedy's Executive Order 10936 of 24 April 1961 required federal agencies to investigate and report on identical bids received in connection with the procurement of goods or services.
[18] Reagan's order argued that the requirement had "proved ineffective" and "consume[d] resources that could be employed in a more effective manner to prevent antitrust violations".
President Donald Trump's Executive Order 13788 (18 April 2017) provided for a review of such agreements so as to identify whether any could be considered to undermine US interests.
[22] 40 USC 181(c) provides that "In acquiring personal property, any executive agency, under regulations to be prescribed by the Administrator, subject to regulations prescribed by the Administrator for Federal Procurement Policy pursuant to the Office of Federal Procurement Policy Act, may exchange or sell similar items and may apply the exchange allowance or proceeds of sale in such cases in whole or in part payment for the property acquired".
The GAO raised concerns in 2011 regarding urgent needs' complex and uncoordinated acquisition processes, noting that Over the past two decades, the fulfillment of urgent needs has evolved as a set of complex processes within the Joint Staff, the Office of the Secretary of Defense, each of the military services, and the combatant commands to rapidly develop, equip, and field solutions and critical capabilities to the warfighter.
[opinion] Thus, it is necessary to emphasize competition and understand the acquisition from the view point of the contractor; Government acquisition commands should ask what is to be achieved and whether or not the program is really in the best interest of the Government, specifying needs in a manner designed to achieve full and open competition and including restrictive requirements "only to the extent that they are necessary to satisfy the agency's legitimate needs".
[35] Where contracting officers recognise that acquisition documents have not been well formulated or are not suitable for ensuring fair and impartial competition, they have "broad discretion" to take appropriate corrective action.
FAR 15.101-2(a) identifies LPTA as "appropriate ... when the government 'expects' it can achieve the best value from selecting the proposal that is technically acceptable and offers the lowest evaluated price".
Work statement: Deliverable list with performance and objective specifications if not a service contract (no brand names except as an example) 2.
Risk is associated with all aspects of the program, for example, threat, technology, design processes, Work breakdown structure (WBS) elements, etc.
The bundling of a requirement also has a detrimental effect on the SSCs and CLIN structure, making it difficult to use in source selection, price evaluation and contract administration.
Northern Missouri congressman Sam Graves introduced draft legislation in 2014 intended to address some of the shortcomings of excessively bundled contracts.
Example of how over-bundling causes big problems (permutations and evaluation of total price in source selection): Lets say a requiring activity wants to get polling services.
Ensure that, when documenting an award decision in the SSDD, SSA's are focusing on the underlying advantages and disadvantages of the proposals rather than merely the ratings themselves.
[61] Other suppliers wishing to challenge the proposed sole-source must submit a timely statement of capability, in order to establish that the government should compete the opportunity.
[59]: 7–8 A metric is a meaningful measurement taken over a period of time that communicates vital information about a process or activity, leading to fact-based decisions.
Gen 567 (B-188408), 78–1, para 443, at 573, stated: "The impact of any modification is in our view to be determined by examining whether the alteration is within the scope of the competition which was initially conducted.
Ordinarily, a modification falls within the scope of the procurement provided that it is of a nature which potential offerors would have reasonably anticipated under the changes clause.
Scope analysis is not mechanical, but requires an integrated assessment of multiple factors, including contract type, specification or statement of work, cost and performance period.
In Biodefense, the Army issued a single award ten year indefinite quantity contract for development and certification of vaccines for biological defense.
The GAO determined that this modification was, nevertheless, within the overall scope of the original competition based on the broad developmental purpose of the contract and the solicitation's express notice to offerors that additional vaccine types could be added after award and that changes in regulation may affect performance period and costs.
The discussion of actions taken by the Army in the original solicitation to put competitors on notice of the potential for post-award modifications provides good practice insight.
(For example, failure to provide security escorts or access to a work site thus causing delays on the part of Contractor performance).
Accordingly, it is very important the Agency get the acquisition right up front because bad work statements and poor contract administration destroy the Government's ability to T4D, thus keep their prior year funds to get a replacement contractor.
