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Many Faces to Industry

by Robert Antonio


"Recommendation 2. Enact legislation to eliminate inconsistencies in the two primary procurement statutes by consolidating the two statutes and thus provide a common statutory basis for procurement policies and procedures applicable to all executive agencies."

Commission on Government Procurement
December 31, 1972

The Commission on Government Procurement was created by Public Law 91-129 to conduct a systematic review of federal procurement. On December 31, 1972, the Commission issued its multi-volume report which made numerous recommendations. The second of those recommendations appears above. As we all know, that recommendation was never adopted. There continues to be differences between the two basic guiding pieces of procurement legislation—the Armed Services Procurement Act of 1947 and the Federal Property and Administrative Services Act of 1949. However, this article is not concerned with the differences between the major contracting laws. Rather, it briefly looks at two recent pieces of legislation that are a bit off the beaten path of mainstream procurement. These pieces of legislation, and others like them, are providing industry with multiple faces from the federal government in the award of federal contracts.

The National Parks Omnibus Management Act of 1998.

The first piece of legislation is the National Parks Omnibus Management Act of 1998 1. Title IV of the Act deals with National Park Service Concessions Management contracts. Concession management contracts are awarded to provide accommodations, facilities, and services to visitors to the National Parks. In total, these contracts approach $800 million in annual revenues. This is not an insignificant program. Since these contracts do not involve appropriated funds they are not part of mainstream federal procurement. However, some concessions contracts managed by other agencies fall under the provisions of mainstream procurement. So industry may need to follow at least two different procedures to submit offers for similar needs of the federal government.

There are some differences in procedure between the legislation authorizing the National Park program and mainstream procurement. For example, under the Office of Federal Procurement Policy Act (41 U.S.C. 416), procurement notices for mainstream procurement are submitted to the Commerce Business Daily (CBD). Specific time requirements are provided that cover the time between publication in the CBD and release of the solicitation. Under the National Park program legislation, notice is published "at least once in local or national newspapers or trade publications, and/or the Commerce Business Daily, as appropriate . . . ." However, there are no time requirements provided that cover the period from the time between the notice and the issuance of the National Park program solicitation. So there will probably be differences in the time provided under mainstream procurement and the National Park program.

Before going any further, I must correct a slight error in the previous paragraph. I referred to the document to solicit offers under the National Park program as a solicitation. That is how it is identified under the Office of Federal Procurement Policy Act. However, under the National Park program legislation, the document used to solicit offers is identified as a "prospectus." If industry submits an offer under the National Park program it is a response to a prospectus while under mainstream procurement it is a solicitation. Yes, this is a minor difference. However, is it a necessity?

What about the listing of selection criteria in the National Park program prospectus versus the selection criteria under a mainstream solicitation? Both the National Park program legislation and mainstream procurement law discuss the description of the selection criteria. For example, under a mainstream procurement for competitive proposals, the solicitation "shall clearly establish the relative importance assigned to the evaluation factors and subfactors . . . ." (10 U.S.C.2305 (a) (3) and 41 U.S.C. 253a (c)) Under the National Park program legislation, "The prospectus shall include . . . A statement as to the weight to be given to each selection factor identified in the prospectus and the relative importance of such factors in the selection process."  (Title IV Section 403).  The National Park program legislation is silent on subfactors. So, why the difference? Is it a necessity or simply an oversight?

National Defense Authorization Act for Fiscal Year 2000

The National Defense Authorization Act for Fiscal Year 2000 (S. 1059), which is currently with the President for signature, contains a provision for "best value contracting" in the TRICARE Program. This new legislation will require the award of contracts, in excess of $5,000,000, to offerors that provide the best value to the United States. Under the law, the procedures for this version of best value procurement will be "prescribed by the administering Secretaries." Don’t we already have procedures in mainstream procurement for best value determinations? Yes, they are used every day. However, now the administering Secretaries of the TRICARE program are to develop procedures for TRICARE procurements. Will they develop something new and different from mainstream procurement? Maybe, we will just have to wait and see.

1The National Parks Omnibus Management Act of 1998 signed into law as P. L. 105-391 on Nov. 13, 1998.

Copyright 2003 by Robert Antonio



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