Policy Reviews Will Not Improve Government Procurement

As part of the continuing push by the Administration to reduce the amount of redundancy and to cut red tape through a review of existing federal regulations, agencies recently announced their final plans that describe what they will begin to consider as possible reforms to current regulations to execute on the President’s Executive Order.

The plans look at variety of issues, including increasing competition, payments to small businesses, and vendor communications with government. In addition, the final plan for regulatory reviews also includes conflicts of interest, how to properly review a company’s past performances, and working with the Small Business Administration to update rules for using set-aside contracts and small business subcontracting plans.

Although the regulatory review plans are long overdue, and definitely needed, I am not sure the fundamental issues at the heart of the problems are regulatory in nature.

In July, the Department of Defense (DOD) proposed changes to the Defense Federal Acquisition Regulation Supplement’s rules on how DOD gets a fair or reasonable price from a company when only one-bid is received. Under the proposed new rules, Contracting Officers would have to re-compete the solicitation for at least another 30 days, and would have to determine prices to be reasonable through price or cost analysis or they can enter negotiations with the company that made the bid. However, the proposed regulatory change does not even discuss a comprehensive review of requirements or acquisition strategy, which more than likely led to the one-bid in the first place.

Regulatory reviews also plan to look at FAR 15, and regulatory obstacles to vendor communications. In fact, the regulations are clear on best practices and what is permissible prior to RFP release, even though it is not getting done. Dan Gordon, administrator of the Office of Federal Procurement Policy (OFPP), plans to discuss the rules about communications, and provide more guidance via a proposed memo by the end of 2011.

This memo would be a continuation of the OFPP's Myth Busters Campaign that discusses the misconceptions about government and industry communications. The Better Government IT initiative was created to help in this effort, but it is through this crowdsourcing that best practices can be reviewed, not through a review of regulations.

Mandating the use of current policy and regulations does not seem to be a viable option for ensuring government executes on these issues. It is through concerted leadership to execute existing policy and actively solicit best practices that we can expect to see effective change.

Eliminating burdesome policies and regualtions that create barriers to entry and create costs to government and industry would be welcome, but I am not sure this policy review will be as productive as might expected by its proponents.