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Transparent Contracts


Guest carl r culham

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Guest carl r culham

I will have to admit that I missed the item in the Federal Register that has intent to someday post contracts on a public website. http://edocket.access.gpo.gov/2010/2010-11381.htm

It is also covered in a most recent Gov Exec article - http://www.govexec.com/features/0810-01/0810-01na3.htm. Will the requirement become the rule of the land, who knows, but it seems the effort will have a monumental effect on the acquisition workforce. Questions are -

Will the system created for the posting effort be user friendly and work better than current acquisition systems?

Who will be responsible for the propriety of the posting? Will the finger point at the CO for this?

Does this demand that training for the acquisition workforce would need to specifically include significant effort on the subject of FOIA?

Costs?

Does transparency really result after all is said and done? Seems redaction in some cases would leave nothing but FAR/Agency clauses to be posted?

As they say in my neck of the woods - pull your hat down tight, this is going to be a wild ride!

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Guest Vern Edwards
Does transparency really result after all is said and done?

Heck no. Half the people working on government contracts don't understand what they read. There is no chance that the general public will. A needless and costly political publicity stunt, and proof of the cluelessness of politicians and presidential appointees.

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IMHO, the contracting activity should be less involved, not more involved, in release of government contracts. The real parties in interest are the requester and the submitter (contractor), and the contracting activity is currently stuck in the middle with a set of (largely court-made) rules that are far too fact-specific to permit efficient processing. If I had my way, I'd have an arrangement where the requester and the contractor can fight it out before some neutral (preferably with some procurement expertise, but ideally not the contracting activity). Those portions of the contract that were found releasable could be posted. Hopefully you could structure the incentives to avoid frivilous positions from either side; e.g., the losing party would be responsible for paying costs and the prevailing party's attorneys' fees, and none of the litigation costs would be allowable. (To avoid deadbeat requesters, one could require a bond.) (Stepping down from soapbox...)

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Don't we have that already? Isn't it called the Freedom of Information Act?

Seeker, one of us is being too subtle for the other. Under FOIA today, the agency makes the initial determination of what is released and what is not. Disappointed requesters or submitters bring suit against the agency if they disagree with the result. What I'm suggesting is take the agency out of the equation.

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Don't we have that already? Isn't it called the Freedom of Information Act?

Exactly. If someone from the public is interested in a specific contract, that's the way to get more information. The people proposing this don't have a clue on what the government contracting process is all about.

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Guest Vern Edwards
Seeker, one of us is being too subtle for the other. Under FOIA today, the agency makes the initial determination of what is released and what is not. Disappointed requesters or submitters bring suit against the agency if they disagree with the result. What I'm suggesting is take the agency out of the equation.

If we are going to go through with this stupid idea, and it appears that we might, then you can never take the agency out of the equation. The information in a government contract is in the possession of two parties--the government and the contractor. Each of those parties has an interest in what is disclosed. The contract may include classified documents and references to classified documents that the government does not want disclosed. The contractor may be concerned about pricing information in the contract. So you can't leave the question of disclosure entirely in the hands of the contractor, the requester, and a neutral. Agencies will not want to hand over disclosure control to a neutral which they cannot control. Moreover, such an approach would drive contractor overhead through the roof.

No, I fear that we are stuck with agency implementation. If this happens, COs will find themselves mired in "transparency" work. Hopefully, senior agency career officials are screaming that this idea is folly.

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Guest carl r culham

Firsthand experience supports to me that even agency FOIA folks may not be completely up to speed with regard to what is covered by waiver and what is not when it comes to a contract. I personally have had to caution FOIA folks not to release certain information and provide the support to emphasize my request not to release.

I would take Vern's comments a step further that there is an implied responsibility of the CO to do everything within his/her power to protect the procurement process. To me this means doing what the CO can within his/her power to apply protections of FOIA to a contractor's contract. Not that this supports my view entirely but remember the Fed Register notice was made not by the Government with regard to new FOIA legislation it was made by the FAR Council based on several pieces of policy that are intended to further the administration?s agenda.

I would also add that when I say CO we should not forget we are talking both 1102's and 1105's. Remember the sophistication and knowledge of these positions in their entirety represents a very wide spectrum!

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  • 3 weeks later...

.

I don't have any special insight as to what's behind this, but I'd like to share my guess:

When I think it would be helpful to see the current contract for something that's being recompeted, I'm most interested in the Bid Schedule and any Orders or Mods that may have changed quantities, delivery, descriptions or prices. I assume that's what this initiative is meant to disclose.

I think whoever thought this up assumed that the Government could simply add a paragraph to 52.212-1 or the non-Commercial Item 52.215-1 "Instructions to Offerors," putting potential offerors on notice that their pricing would be made public, at the CLIN or sub-CLIN level, and folks would salute and carry on.

If that does happen, I expect there to be a lot of feedback from industry on how Bid Schedules should be structured. In fact, I think it will become commonplace to negotiate this structure. As a result, I think that Bid Schedules will become much shorter and provide less insight into costs and prices.

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