MILLER ON PROCUREMENT.

**COMPETITION ON MULTILE AWARD CONTRACTS**

The 2002 defense authorization bill (S. 1438) now requires more competition on individual purchases over $100,000 on multiple award contracts. The bill allows fewer than all contractors under GSA schedules to be considered, provided that as many as practicable are allowed to compete for a task and offers are received from at least three qualified contractors or the Contracting Officers determines that additional qualified contractors could not be identified despite all reasonable efforts. The bill only provides this provision for services and does not address the procurement of products. In addition, the bill requires that offerors be given a description of the work to be performed and the basis on which selection will be made.

The original bill would have required that all orders over $50,000 be competed and that the Contracting Officer consider all vendors on GSA schedule contract. The bill was ratified by the House and Senate December 13, 2001 and was sent to the president for signature.

**THE MARINES**

Picture this. They issue a ten million dollar RFP. They put it in the CBD. They get two responses. One is from their supplier of a complex logistical product for the last three years. The other is from a three-year old firm with less than 20 employees, which has never made this product or a similar one. They award to the new kid on the block with no tests as to suitability of the item. They ignore FAR 9.1. The firm that wins has barely done $1 million in business during their short history.

The terrorists strike. Now USMC needs these products more than ever. The winner has a couple of months to produce one for first article testing.

Once again naive techies and poorly trained contracting people have done their thing. Maybe the new guy will do a good job. I would like to bet $10,000 they will not. But what good is a CO if he can't obey the FAR? FAR 9.1, contractor responsibility, is the most likely portion of the FAR to be ignored. I have seen it over and over.

It says that the government is not well served if the firm can't perform or deliver. Low bids in such a case must be rejected. How often have you seen a low bid rejected as opposed to receiving award and the government spends the next two years trying to work with the firm to get them to perform or even accepts inferior goods out of pride.

In this case if the winner can't perform it matters not how low the price. If he ships and they fail in usage this could be most serious for the war fighters. Here we have a clear case where the government is at risk, the assets of the winner are so small that DOD would never receive funds on a Termination for Default. Operations could be severely impacted in order to save a bit of money. Where did past performance and best value go? Didn't any policy people review before award and ask any questions?

Chromoloy

This case went to the Supreme Court because of the nefarious actions of the Air Force. Seems the firm developed a new method of chrome plating fan jet blades and made an offer to the Air Force. The Air Force duped the naive vendor by asking numerous questions and then put the process out in an RFP for bids.

We have seen DOD cancel the contract for a small firm and tell the preferred large firm which employees to hire and provide home phones.

In a current case, DOD has asked a contractor for numerous tech specs and finally admitted they planned to get bids on a patented product. The government can do all of these things with apparent impunity because they have too many lawyers. They assume with their free legal staff of 200,000 or so lawyers they can outlast you in court. They probably can. Justice has over 90,000 of the rascals.

Beware of unusual questions from government employees. Don't answer them without written contracts in hand.