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What About this VA Program and Judge's Opinion?

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Last night and this morning, I read an interesting opinion in the Court of Federal Claims (COFC).  That opinon is Electra-Med, et al., v. U. S. and American Medical Depot, et al., No. 18-927C, October 3, 2018. It interested me because of what the Judge wrote which I added in the two quote boxes: 


We are fully sympathetic with plaintiffs’ challenge to this “procurement.” The VA appears to have thrown up its hands in its decade long effort to develop an efficient system for the procurement of high volume items by its many field hospitals using competitive or quasi-competitive methods. It frankly concedes now that using competition is too time consuming, too fraught with challenges, and too subject to inefficiencies triggered by the myriad set-asides required by Congress. Having failed abjectly in prior efforts, what it proposes here is tantamount to a wholesale outsourcing of a large portion of its management of procurement to a few private companies. And yet, we are sympathetic. And as we explain below, we are unwilling to question the agency’s assessment that anything less dramatic will jeopardize patient care. (p. 12)

The Judge found that:

  • The Contracts’ Modifications Are an End-Run Around CICA,
  • The J&A Does Not Justify the Lack of Competition at the Supply Level, and
  • The Modifications Ignore the VA’s Rule of Two Requirement.

The Judge concluded:


In this case, the VA is hamstrung by the myriad requirements and preferences layered onto the process of federal purchasing, and especially the preferences unique to the VA. The complaint here is exhibit A. Plaintiffs are correct that Congress has granted to them and bidders generally a variety of rights when it comes to selling things to the VA. It is for Congress and the voters to weigh the merits of the benefits and burdens imposed by such a labyrinth of legal and regulatory hoops and hurdles. This case presents a circumstance in which the VA could not timely clear the hurdles. The result is danger to veterans’ healthcare and increased cost to the government. The agency found a detour around the obstacles and tried to legally justify it. It could not do so, but the court is in no position to restore the status quo ante by enjoining a process aimed at protecting and improving the management of the VA’s supply chain for medical and surgical supplies. The equities do not favor the plaintiffs: the harm to the plaintiffs is somewhat speculative, while the harm to the agency is real and potentially grave. The public interest favors avoiding those harms.  (p. 21)

The protestors did not get an injunction.

You must read the entire opinion to get the gist of the story.  The opinion discusses how VA procured these items before it appears to have thrown up its hands.  

Most, if not all, of these issues may be specific to VA.

What do you think of the

  • VA contracting program, including its solution, mentioned in this opinion and
  • Judge's opinions.
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I think the judge probably overstepped his authority here in the name of government efficiency.  While I generally understand and admire creative attempts at improving Government efficiency, fundamentally broken processes should not be remedied by the bureaucracy or the judiciary.  The responsibility of the bureaucracy, as part of the executive branch, is to implement and follow the rules on the books.  The judiciary interprets those rules.  And although this is a principle largely ignored today, it is not the proper place for either branch to decide what laws they will follow and which they will ignore in the name of efficiency or good, practical policy.  This is Congress's responsibility to fix.  We have an incredibly outdated acquisition philosophy and process that Congress can't help itself but constantly tinker with, leading to what is now a lexicon of incomprehensible regulation.  Rather than greenlighting end-runs around the law, we need to fix the law.  

And yes, there has been much discussion regarding the lack of professionalism within the bureaucracy.  I don't disagree with that general sentiment, but keep in mind that there are an awful lot of very smart people in the Government, and, by and large, the Government is reasonably decent at allocating those resources where they are most needed.  What I'm saying here is that the VA was putting forth the best of the best to solve this problem, and they have still failed.  This is a problem much bigger than the VA itself, and it's going to take a lot more change other than making it easier to fire some SES's.  

Representative republics weren't created to be efficient.

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