Commentary | Steve Kelman argues that the current cornerstone of Part 1 of the Federal Acquisition Regulation is the right one for taxpayers and agencies.
When I was in government many years ago, I frequently dealt with people who wanted to use – the unpleasant word would be “abuse” — the procurement system to advance agendas that had nothing to do with procurement’s purpose to serve agency missions and taxpayers by providing good stuff at good prices. Such statements would always begin, “We should use the enormous buying power of the federal government to..." — followed by a fill in the blank with the person or organization’s favorite cause.
When I heard these pleas, I would often respond as follows: “We should use the enormous buying power of the federal government to get a good deal for agencies and taxpayers.”
I thought about this as I read a comment in a recent Nextgov/FCW article by my friend and colleague Steve Schooner, a procurement law professor at George Washington University, and advocate of sustainable procurement. “Maybe you put some clear language in FAR Part 1,” he suggested, ”that focusing on doing less harm to the planet in every procurement you make is worth thinking about.”
I need to say that such a change to the Federal Acquisition Regulation is not a good idea.
Many readers have no idea of what FAR Part 1 is, so some history is in order. When the FAR was rewritten in 1996 at the end of my own years as administrator of the Office of Federal Procurement Policy, a new statement of “core guiding principles” for the federal procurement system was added. The first line of the core guiding principles stated, “The vision for the Federal Acquisition System is to deliver on a timely basis the best value product or service to the customer, while maintaining the public’s trust and fulfilling public policy objectives.”
This language, which I played a major role in drafting, very consciously began with, and put in the forefront, the need to deliver best value products and services, but also stated that this should be done “while maintaining the public’s trust and fulfilling public policy objectives.”
When I spoke while in government, I often formulated this language in terms of what I called goals and constraints. Goals were what you were trying to accomplish. Constraints were what you were not allowed to do, or were required to do, even if adhering to these necessary checks make achieving your goals more difficult. The goal was best value for the taxpayer and agencies, the constraints were various other public policy objectives that the political system had placed upon contracting — at the time, mostly buying from small businesses and obeying all the procurement procedural regulations when buying. Today we would add environmental sustainability as a constraint on just getting the best deal. We are willing to pay a somewhat higher dollar price (and/or get lower quality) for what we buy so that what we buy is sustainable. Within bounds, it is reasonable to do so.
I believed at the time that the old procurement system had gotten the balance between goals and constraints out of whack, that constraints were often taking precedence over goals. At a strategic level, I saw my job as righting that balance to remind folks in the system about the importance of the system’s goal. Since the long-ago procurement reforms of the 1990s, the best-value goals have generally gotten pride of place.
This philosophy is reflected in Part 1 of the FAR, which was a product of that era. Part 1 keeps the goal out front — the “vision” of the system “is to deliver on a timely basis the best value product or service to the customer.” The language also recognizes that achieving public policy goals plays a role in the system. But it should not be the tail that wags the dog.
The current cornerstone of Part 1 is the right one for taxpayers and agencies. I do not believe we should turn Part 1 into a contracting Christmas tree that has new things added onto it everytime a new concern arises. Schooner criticizes the current language about sustainability in Part 23 of the FAR as confusing and poorly written. If that is true, let’s improve Part 23. But keep Part 1’s focus where it is.
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