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FEDERAL CONTRACTS PERSPECTIVE

Federal Acquisition Developments, Guidance, and Opinions


May 2005
Vol. VI, No. 5

CONTENTS


FAC 2005-03 Permits Purchases From Federal Prisons Only If They Are Best Value
FAR Implementation of Earned Value Proposed
DFARS Transformation Momentum Builds
Workforce Told to Avoid Brand Name Specifications
OFPP Makes Civilian Acquisition Training Similar to DOD's



FAC 2005-03 Permits Purchases From
Federal Prisons Only If They Are Best Value

Federal Acquisition Circular (FAC) 2005-03 amends Federal Acquisition Regulation (FAR) Subpart 8.6, Acquisition from Federal Prison Industries, Inc. (FPI), to require that best value procedures be used when purchasing FPI products. Previously, agencies had to purchase FPI products listed on the "Schedule of Products Made in Federal Penal and Correctional Institutions." In addition, FAC 2005-03 finalizes, without changes, the interim rule that extended the micro-purchase exemption for purchasing electronic and information technology (EIT) that conforms to the requirements of Section 508 of the Rehabilitation Act of 1973 from October 1, 2004, to April 1, 2005.



FAR Implementation of Earned Value Proposed

The FAR Council is proposing to amend FAR Part 34, Major System Acquisition, and FAR Part 52, Solicitation Provisions and Contract Clauses, to implement earned value management system (EVMS) policy.

The Federal Acquisition Streamlining Act of 1994 (FASA) requires agency heads to approve or define the cost, performance, and schedule goals for major acquisitions and achieve, on average, 90% of the cost, performance and schedule goals established by the agency. The Clinger-Cohen Act of 1996 requires the Office of Management and Budget (OMB) to develop, as part of the budget process, a process for analyzing, tracking, and evaluating the risks and results of all major capital investments for information systems for the life of the system. OMB Circular A-11, Preparation, Submission and Execution of the Budget, Part 7, Planning, Budgeting, Acquisition, and Management of Capital Assets, and the Capital Programming Guide (a supplement to A-11, Part 7), were written to meet the requirements of FASA and the Clinger-Cohen Act. OMB Circular A-11, Part 7, sets forth the policy, budget justification, and reporting requirements for major capital acquisitions that apply to all executive agencies.

EVMS has been adopted by OMB as the method for complying with the provisions of FASA and the Clinger-Cohen Act, and is mandated by A-11, Part 7. EVMS is described in American National Standards Institute (ANSI)/Electronics Industries Alliance (EIA) Standard-748, Earned Value Management Systems. (EDITOR’S NOTE: ANSI/EIA Standard-748 is available from Global Engineering Documents (1–800–854–7179). Information on earned value management systems is available at http://www.acq.osd.mil/pm.)

This proposed rule would standardize the use of EVMS across the government with a new FAR Subpart 34.X, Earned Value Management Systems, two provisions, and one clause.

Comments on the proposed rule must be submitted by June 7, 2005, to the above address, except that the e-mail address is "farcase.2004-019@gsa.gov", and the comments should be identified by "FAR Case 2004-019."



DFARS Transformation Momentum Builds

The Department of Defense (DOD) continues transforming the Defense FAR Supplement (DFARS) by publishing eight proposed rules. In addition, a non-transformation proposed rule was published, as were three final rules.



Workforce Told to Avoid Brand Name Specifications

David Safavian, Office of Federal Procurement Policy (OFPP) Administrator, and Karen Evans, Office of Electronic Government and Information Technology Administrator, issued a joint memorandum to chief acquisition officers (CAOs), senior procurement executives (SPEs), and chief information officers (CIOs) to "reinforce the need to maintain vendor neutral contract specifications and to ensure that agencies strictly comply with the requirements in the Federal Acquisition Regulation (FAR) regarding the use of brand name specifications."

FAR 11.105, Items Peculiar to One Manufacturer, states, "Agency requirements shall not be written so as to require a particular brand-name, product, or a feature of a product, peculiar to one manufacturer, thereby precluding consideration of a product manufactured by another company, unless the particular brand name, product, or feature is essential to the government's requirements, and market research indicates other companies' similar products, or products lacking the particular feature, do not meet, or can not be modified to meet, the agency's needs."

Mr. Safavian and Ms. Evans express concern "that the use of brand name specifications in agency solicitations may have increased significantly in recent years, particularly for information technology. For example, some federal agencies have issued solicitations with specifications for brand name microprocessors that are associated with a single manufacturer. Rather than issue brand name specifications for microprocessors, agencies should either: 1) articulate a benchmark for performance; or 2) specify the requirements for applications and interoperability."

Safavian and Evans admit that "the increased use of brand name specifications is not limited to information technology procurements. For example, last year a federal agency issued a request for quotations (RFQ) for approximately $81 million in office supplies. Throughout the RFQ, office supplies were identified by a vendor number unique to one large office supply company. In these examples, the use of brand name specifications limited competition and diminished the likelihood the agency purchased the best value product. There is also a significant risk of severely limiting small business participation in these cases."

Therefore, to ensure agencies are providing for maximum competition and are purchasing the best products to meet agency needs, "we are requesting that agencies take steps to mitigate brand name usage. As a general rule, contract specifications should emphasize the necessary physical, functional, and performance characteristics of a product, not brand names. In cases where the use of a brand name associated with a single manufacturer is warranted, the FAR currently requires a written justification. Effective immediately, we are asking agencies to publicize the justification with the contract solicitation when the solicitation is posted on the Federal Business Opportunities website (http://www.fedbizopps.gov). If publication of the justification is inappropriate because of national security, trade secrets, or similar concerns, agencies should provide a copy of the justification to the Office of Federal Procurement Policy...this guidance applies to all acquisitions, including simplified acquisitions, GSA (General Services Administration) purchases, and sole source procurements."

This justification has been a requirement since enactment of the Competition in Contracting Act in 1984. Paragraph (c) of FAR 6.302-1, Only One Responsible Source and No Other Supplies or Services Will Satisfy Agency Requirements, states, "An acquisition that uses a brand name description or other purchase description to specify a particular brand name, product, or feature of a product, peculiar to one manufacturer does not provide for full and open competition regardless of the number of sources solicited. It shall be justified and approved in accordance with FAR 6.303 [Justifications] and 6.304 [Approval of the Justification]. The justification should indicate that the use of such descriptions in the acquisition is essential to the government's requirements, thereby precluding consideration of a product manufactured by another company." In addition, these justifications have been available to the public upon request (see FAR 6.305, Availability of the Justification), and those who believed they were being wrongfully excluded from competition could challenge the justification under the protest procedures in FAR Subpart 33.1, Protests. What this memorandum does that is new is require that the justification be published on FedBizOpps along with the solicitation. Bringing such justifications out into the public should make contracting officers a little more careful about invoking this exception to competition.



OFPP Makes Civilian Acquisition Training Similar to DOD's

OFPP has issued Policy Letter 05-01 "to promote uniform implementation of a program to develop the federal acquisition workforce." OFPP Policy Letter 05-01 aligns core civilian agency acquisition workforce training requirements with those for the defense workforce. This will ensure that the federal acquisition workforce has common, core training, and this alignment will promote workforce mobility.

Also, Policy Letter 05-01 broadens the definition of the acquisition workforce beyond the GS-1102 contract specialist job series to include such acquisition-related functions as program management, legal counsel, finance, and others who perform acquisition-related functions. These individuals are included in the definition of the acquisition workforce to they can be trained and developed using common standards.

Finally, Policy Letter 05-01 emphasizes the importance of continuous learning. For example, employees in the GS-1102 series will be required to earn 80 continuous learning points every two years, which is twice the current requirement. Many of these continuous learning opportunities are available free of charge on the Federal Acquisition Institute (FAI) website on http://www.fai.gov and through the Defense Acquisition University (DAU) on http://www.dau.mil.

OFPP's announcement of the publication of Policy Letter 05-01 states "FAI and DAU are forming a partnership to advance the capabilities of our federal acquisition workforce. To address the changing nature of the acquisition environment, DAU is currently restructuring the contracting curriculum. As new courses are completed, course content will be made available to training providers to obtain equivalencies for the new offerings...Therefore, civilian agencies should use October 1, 2005, as a general guideline in adopting the DOD curriculum, but may reasonably extend the transition time to accommodate agency and employee needs. FAI will provide guidance and information on transition as the coursework is developed and classes become available."



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