The Homeland Security Department’s National Protection and Programs Directorate is backing away from a draft vendor communication guidance plan after receiving strong push back from industry.
The draft document first issued in April would have required NPPD senior executives to answer a 15-question checklist before meeting with any contractors. The questions ranged from the obvious, such as who they were meeting with and about what, to what some in industry called controversial, such as how many times NPPD officials have met with the company in the last six months and if the company has any contracts with DHS and all details about those contracts.
Industry representatives said they were most concerned about the requirement that would have prohibited agency executives from meeting with contractors if the “proposed meeting relates to current or planned contracting opportunity, a response to a (request for information), an unsolicited proposal or any circumstance where DHS has identified a need for products or services.”
But a DHS official said the document is no longer in play.
“The draft document was not, nor will be, put into practice,” said the official, who requested anonymity because the document is pre-decisional. “NPPD continues to work to ensure its employees are properly informed in the area of vendor engagement.”
Agency sources said NPPD issued the draft document to about 100 senior executives in the spring and the general counsel has signaled that the agency and contractors should use the checklist.
“Recognizing that effective vendor engagement is critical to the acquisition process, the department’s robust industry outreach team hosts DHS industry days, small business events and other vendor outreach activities to achieve the common goal of mission success,” Catron in an emailed statement.
A chilling effect on communication
Industry experts say the guidance would have harmed both NPPD and contractors.
“Many of the questions and the information being requested from applicants for these meetings actually put a very significant chill on any communication,” Alan Chvotkin, senior vice president and general counsel for the Professional Services Counsel, said in an interview with Federal News Radio before NPPD’s decision not to put the guidance in place. “We are concerned if left unchanged it would actually end up denying more meetings than facilitating meetings between industry and the government.
On hearing the news that NPPD decided not to move forward with the guidance, Chvotkin said PSC welcomes DHS’ endorsement of vendor outreach and discussion.
“In our view, the NPPD questionnaire for meeting schedulers and others asked more than just legitimate set-up questions that would aid in identifying meeting topics and attendees. We viewed the document as providing more justification for NPPD officials to decline vendor meeting requests than for facilitating such communications,” he said. “We hope that NPPD would either withdraw the document or re-write it to more clearly align with the department’s vendor outreach plan.”
Trey Hodgkins, senior vice president for national security and procurement policy at TechAmerica, said his association’s members also had a lot of concern over the draft guidance.
“I’m glad they have recognized it was a poorly thought out checklist that discouraged vendor engagement and that better outcomes that can be derived from that engagement and have abandoned its use,” he said. “It is our hope that the department will proactively encourage vendor engagement, both collectively and individually, as needed to achieve best value for the taxpayer.”
Good roadmap for ethics
But not everyone thought the checklist was such a bad idea.
Scott Amey, general counsel for the Project on Government Oversight, said this type of guidance has several benefits.
“I actually think it’s a fairly good roadmap to avoid two types of problems we see in procurement,” Amey said. “One is the problem with not having a level playing field. I think this memo gets to that. In essence, it’s a checklist. It’s also to help the agency and specifically personnel avoid conflicts of interest and any ethical dilemmas that often appear in government spending cases.”
Chvotkin and Hodgkins said this type of memo shows that the Mythbusters campaign hasn’t trickled down far enough in the agencies. The Office of Federal Procurement Policy issued two Mythbusters memos to help improve vendor-agency communication. OFPP’s goal is to dispel commonly held myths about what agencies and contractors can talk about and when.
“At the point of execution, we still have a risk-adverse community and the indications from Mythbusters activity and the campaign apparently have not addressed those risks that the executers are concerned about,” Hodgkins said. “Then in some of the efforts to implement the Mythbusters campaign there is a overlay of legal concern and, of course, nobody wants to run afoul of the legal entity within their agency or department. These kinds of guidance tend to leave one with the conclusion there is a lot of risk going down this road, and to the degree the acquisition workforce is a risk adverse environment, the general conclusion that many of them make is this is not something that is worth engaging in.”
But Amey disagrees with the point that this flies in the face of the Mythbusters campaign.
“This is merely a checklist trying to say, ‘OK, if we are going to bring industry to help us during the entire acquisition process from policy to contracting and to oversight, then at that point we need to make sure we do it and have a list of what we expect our employees to do and don’t do as we walk through this process,'” he said. “I think this is a really good list. I think it will help the government and contractors avoid problems in the procurement process prior to award and then after.”
Limiting lawful communication is harmful
But Hodgkins countered Amey’s argument, saying any limitation of vendor-agency communication that is allowed within the bounds of law and regulations would hurt both sides.
“At a rudimentary level, if you have an entity that has responded to a (request for information) about how you do something, how do you approach something, what technologies are available to solve my problem or meet my mission, most agencies interact with those entities specifically based on that response to better understand what they are suggesting, to better understand the technologies that are out there,” he said. “This seems to cut off all of those entities that would have responded in that way. In fact, I would suggest this would have diminished the agency’s ability to get competition. Companies would look at this guidance and say, ‘OK, I can’t respond to a (request for proposals) and expect to ever get a meeting at DHS again, if this should spread across the department.'”
TechAmerica and PSC brought the draft guidance to the attention of OFPP, DHS headquarters and some on Capitol Hill. Hodgkins said everyone they contacted was surprised or wanted more details about the degree of specifics the draft guidance called for from executives and contractors.
One industry source said there is some concern the draft guidance already is spreading across other parts of DHS.
Another industry expert, who requested anonymity because they do business with DHS, said agencies cannot survive without industry-agency collaboration.
“To maintain a double if not triple arms length relationship is simply baffling when industry offers so much to DHS,” the source said. “Time and again collaboration has proven invaluable to the government, from the US-VISIT program to simply having status meetings on programs.”
Tom Temin is the host of The Federal Drive, 6 a.m.-10 a.m. on 1500 AM in the Washington, D.C. region and online everywhere.
Tom also writes a weekly commentary. Subscribe to Federal Drive's daily audio interviews on iTunes or PodcastOne