Competition

Army Lawyer, Jan-Feb, 2003

Last year's Year in Review introduced its discussion of competition with testimony from then-nominee for Administrator of the Office of Federal Procurement Policy (OFPP), Angela Styles. (1) Last year, Ms. Styles expressed concern about the impact of procurement reform on traditional government procurement objectives: competition, due process, and transparency. (2) The tension between competition and acquisition reform continues to play out in litigation, legislation, (3) and academic discourse. In August 2002, at the invitation of Ms. Styles, General Services Board of Contract Appeals (GSBCA) Chairman Stephen Daniels spoke at the OFPP lecture series. (4) Daniels harshly criticized the acquisition reform movement. According to Mr. Daniels:

   Although some parts of CICA [Competition
   in Contracting Act of 1984] remain on the
   statute books, the guts have been ripped out
   of it. Openness, fairness, economy, and
   accountability have been replaced as guiding
   principles by speed and ease of contracting.
   Where the interests of taxpayers were once
   supreme, now the convenience of agency
   program managers is most important. Full
   and open competition has become a slogan,
   not a standard; agencies have to implement it
   only "in a manner that is consistent with the
   need to efficiently fulfill the Government's
   requirements." (5)

His comments garnered equally stinging replies from reform advocates. (6) The decisions in this section represent some of the many battlegrounds upon which the competition debate is fought.

Unduly Restrictive Specifications: Are You Just Talking Trash?

During the past fiscal year, the Comptroller General considered nine protests (7) alleging unduly restrictive government specifications in violation of the Competition in Contracting Act of 1984 (CICA). (8) The GAO denied six of the protests, generally finding that the government agencies had adequately justified their needs.

In Vantex Service Corp., (9) Vantex challenged the Army's bundling of portable latrine services with waste removal services. Vantex alleged that combining the two types of services unduly restricted competition and was not necessary to meet the government's needs. The GAO agreed with this argument. (10)

The Vantex invitation for bids (IFB) contemplated the award of one or more contracts for rental and servicing of portable latrines at Fort Bragg; North Carolina, Fort Drum, New York; and Fort Campbell, Kentucky; and for waste removal services at Fort Campbell. (11) The IFB divided the work into four schedules, one for each facility and one that included all three locations. The Fort Campbell schedule covered both the latrine services and the waste removal services (12) while the Fort Bragg and Fort Drum schedules included latrine services only. (13)

Vantex noted that the two service types fell under different North American Industrial Classification (NAICS) Codes and alleged that providers of latrine services would not compete for waste removal services "and vice versa." (14) The protestor was aware of no other military installation that bundled these requirements and observed that prior solicitations for the combined services at Fort Campbell produced few bidders. (15)

The Army's justification for combining the two requirements boiled down to "administrative convenience." (16) According to the Army, a single solicitation "was cost efficient and reduced our administrative burden. As a result, Fort Campbell could obtain needed similar services utilizing one contracting officer, one contract specialist, and one contracting officer's representative." (17)

The GAO questioned the Army's unsupported assertion that combining the services was more cost efficient, noting that "restricting competition is presumed to raise, not lower, the cost that the government will pay. " (18) In light of the historical dearth of competition for the combined solicitation and indications that additional companies would have bid on separate requirements, the GAO expressed concern that bundling in this case caused "unnecessarily high prices." (19)

Ultimately, the GAO clearly placed the burden on the government to justify specifications that limit competition: "the issue is not whether there are any potential offerors who can surmount barriers to competition, but rather whether the barriers themselves--in this case, the bundling--are required to meet the government's needs." (20) In Vantex, the Army failed to show that combining the portable latrine services with waste removal services was necessary to meet its needs. (21)

In C. Lawrence Construction C0., (22) the GAO rejected the Department of Labor's use of a brand name specification in a construction solicitation. (23) One specification in this IFB for educational and vocational buildings required signs to be manufactured by "ASI Sign Systems ... [or a] pre-approved manufacturer with an equal product." (24) At the time of bid opening, no other manufacturer had been "pre-approved." (25)