The MAS program operates pursuant to a separate authorizing statute that provides the GSA Administrator with the management authority for the program. In addition, the law expressly recognizes that it operates competitively. Specifically, the Competition in Contracting Act (CICA) defines “competitive procedures” as including MAS program procedures so long as (1) participation in the program is open to all responsible sources, and (2) orders and contracts under the MAS procedures result in the lowest overall cost alternative to meet the government’s needs. Here is the CICA language:
The term competitive procedures means procedures under which an executive agency enters into a contract pursuant to full and open competition. The term also includes … (3) the procedures established by the Administrator of General Services for the multiple awards schedule program of the General Services Administration if — (A) participation in the program has been open to all responsible sources, and (B) orders and contracts under those procedures result in the lowest overall cost alternative to meet the needs of the Federal Government. (See 41 U.S.C. 152(3); cj. 10 U.S.C 2302(2)(C))
This language is powerful, if not visionary, because, under the aforementioned conditions, it vests GSA with the authority to establish separate and distinct policies and processes to manage the MAS program and promote streamlined acquisition. Citing this provision of CICA, the Government Accountability Office (GAO) affirmed that the procedures established for the award of schedule contracts, and orders under those contracts, satisfy these two statutory conditions. See Affirmative Solutions, LLC, B-402996, Sept. 8, 2010, 2010 CPD ¶ 212 at 1 (citing Sales Res. Consultants, Inc., B-284943 et al., June 9, 2000, 2000 CPD ¶ 102 at 3.). Moreover, the Court of Federal Claims rejected the argument that the requirements of FAR Part 15 apply to the Schedule program. SeeCybertech Grp., Inc. v. United States, 48 Fed. Cl. 638, 647 (2001) (“FSS procurements are not subject to the requirements of FAR Part 15 and . . . Part 8 [of the FAR] governs agency acquisitions made pursuant to the FSS program.’”) (citing Ellsworth Assoc., Inc. v. United States, 45 Fed. Cl. 388, 393-94 (1999)).
In plain language, GSA has the authority to update its MAS policies and procedures to increase efficiency, enhance competition, further access to commercial innovation, and achieve cost effective, best value solutions for customer agencies. Specifically, GSA can establish a new “Comprehensive, Competitive Services Schedule (CCSS)” for IT and professional services. Here’s how.
Under this new CCSS, GSA and offerors would negotiate basic agreements establishing key terms and conditions (e.g. the Industrial Funding Fee, the Commercial Supplier Agreement, small business subcontracting plans and other applicable commercial and/or government-unique terms) that would govern at the subsequent task order competition. The CCSS would allow for Other Direct Costs (ODCs) at the order level, consistent with FAR 52.212-4. Offerors would be required to post their hourly rates via GSA Advantage, and the Price Reduction Clause and the Commercial Sales Practices Format would be eliminated.
Entering into the agreement, itself, would be a condition for participating/competing at the task order level. Further, audits under this MAS would mirror standard commercial practice. Specifically, they could be performed focusing on task order performance of the service requirement.
Too often, as seen here, we in procurement appear to take a restrictive view of our authority. It is at moments, like these, that it might be useful to turn the guiding principles for the federal acquisition system set forth in the FAR. FAR 1.102 states:
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. Participants in the acquisition process should work together as a team and should be empowered to make decisions within their area of responsibility.
In exercising the initiative, government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.
The new CCSS will “make it easier” for customer agencies, GSA and commercial firms competing in the federal market place by streamlining the initial entry point to the MAS program. As a result, competition will be enhanced, transactional/administrative/compliance costs will be reduced, and access to commercial innovation and best value solutions will be increased.
It is not too hard to “make it easier;” in fact, GSA has taken this approach in the past, as evidenced by its exercise of authority for Blanket Purchase Agreements under the MAS program. The key tool in GSA’s toolbox is its statutory authority to manage the MAS program. The Coalition supports GSA’s use of this tool as the agency seeks to deliver best value to customer agencies and the American people.
Roger Waldron is the president of The Coalition for Government Procurement. Before joining the Coalition, he spent 20 years at General Services Administration, where he gained extensive experience in GSA Multiple Award Schedule and IT GWAC programs. He is also the host of Federal News Radio’s Off the Shelf.