General Services Administration Regulatory Secretariat (VPR)
1800 F Street, NW , Room 4035
ATTN: Ms. Diedra Wingate
Washington , DC 20405
Sent by Facsimile: (202) 501-4067
Subject: FAR Case 2007–008
Dear Ms. Wingate:
The Project On Government Oversight (POGO) provides the following public comment to FAR Case 2007-008—Limiting Length of Noncompetitive Contracts in “Unusual and Compelling Urgency” Circumstances. (73 Fed. Reg. 5784 (January 31, 2008)). POGO is an independent nonprofit organization that investigates and exposes corruption and other misconduct in order to achieve a more accountable federal government. As such, POGO has a keen interest in government contracting matters, especially matters related to the promulgation of federal acquisition regulations. POGO supports the proposed rule, but has a number of concerns: (1) the time period for unusual and compelling urgency contracts should not exceed six months, (2) the “head of contracting activity” provision requires clarification, and (3) the impact of subsequent contract actions should be considered.
The proposed rule would limit the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances. Specifically, the rule would limit those contracts to the minimum contract period necessary to meet the requirements, which could be no longer than one year. The new rule, however, allows for an exemption from the one-year restriction when approved by the head of the contracting activity.
Generally, contracts are to be awarded with full and open competition. The Federal Acquisition Regulation (FAR) Subpart 6.3 allows for “other than full and open competition” in very limited circumstances to provide flexibility in obtaining supplies and services. FAR Subpart 6.302-2 provides that when unusual and compelling urgency dictates, the government may choose to buy supplies or services without full and open competition. The provision also states that less than full and open competition may be used when a “delay in award of a contract would result in serious injury, financial or other, to the Government.” Written justifications are required when less than full and open competition is used.
Despite the minimal protections that written justifications provide, contracts awarded with less than full and open competition are still prone to abuses. For example, limited competition or sole source contract awards can result in fewer proposals or bids, higher prices, poor performance, the increased likelihood that the incumbent will go uncontested when the contract is subject to full and open competition, and an unfair competitive advantage for the incumbent on future contract awards.
The proposed rule would require that contracts awarded pursuant to the unusual and compelling urgency regulation would be for a term not to exceed one year. POGO supports the proposed rule, but urges the Councils to consider shortening the contract term to not exceed six months. POGO believes that during that six-month term, the contract can be advertised and awarded under genuine competitive procedures, thereby allowing the competitive marketplace to work in the interest of taxpayers.
We are also concerned by the uncertainty of the “the head of the contracting activity” provision. Will the approval process be governed by FAR Subpart 6.304, which requires approval by other government officials depending on the monetary value of the proposed contract? POGO urges the Councils to simplify this requirement to prevent the filing of multiple justifications and approvals by various government officials. POGO also urges the Councils to refer to the definition for the of “head of the contracting activity” included in FAR Subpart 2.101 and discuss the public availability of approval records filed by the head of the contracting activity.
POGO also urges the Councils to consider the impact of subsequent changes to a contract awarded under the new rule. Specifically, how does an amendment, a modification, or a follow-on contract impact the one-year contract award restriction?
POGO supports the intent of the proposed rule, but believes that it should be amended to not exceed six months and be clarified to prevent abuse of the contracting system. Thank you for your consideration of this comment. If you have any questions, you may contact me at (202) 347-1122.
Scott H. Amey