Here are two ways to think about the burdens of federal procurement:
- The burden in federal procurement is a bug. Federal procurement policymakers should be making it easier for companies to win business with the government. The government creates silly rules and processes that weed out companies that don't know how to meet all of the government's silly rules.
- The burden in federal procurement is a feature. Federal procurement policymakers should be making sure that companies that win business with the government are comfortable with rigor and red tape. The government creates silly rules and processes that weed out companies that don't know how to meet all of the government's silly rules.
You'll note that, although both perspectives reach different conclusions, they share the same facts: bureaucracy is a fact of life in government.
These perspectives are not always binary. People can believe that, in general, the government should reduce barriers while still embracing friction to advance specific policy goals. And people can believe that most companies are well-advised to steer clear from government contracting while still believing that certain government practices are anachronistic and counterproductive.
The point is that, when the government is extremely literal in its application of the rules, some people will applaud, and some will despair. There's a balance.
For the most part, it's easy to be sympathetic with the view that government should be removing barriers and that hyper-formalism creates the wrong incentives.
And yet, there are some cases where the scales tips heavily in favor of the second perspective, where burden in federal procurement is pretty clearly a feature.
Here's a recent example from GAO, involving the U.S. Army Corps of Engineers (USACE), a company called Aptim-Amentum Alaska Decommissioning, LLC (A3D), and a company called Westinghouse Government Services (WGS).
After 8 amendments to the solicitation, 3 rounds of discussions, and an intervening protest, USACE made a $100M+ award to WGS for a hybrid cost-plus-incentive-fee/cost-reimbursement/fixed-price contract. A3D protested the award, arguing that WGS's proposal "failed to meet a requirement of the solicitation and should have been excluded from award consideration."
And A3D won! WGS was kicked out of a $100M+ award because it failed to meet a requirement of the solicitation. The requirement? Even though WGS provided "letters of commitment for all key employees in which the key employees committed to work on the contract throughout the period of performance" and even though WGS "proposed a phased approach to employing its staff," the GAO concluded that WGS failed to submit a "key personnel retention plan."
That's it! WGS won a $100M+ award, but GAO made USACE throw them out, because they failed to submit a key personnel retention plan, which was deemed a "material requirement of the solicitation."
If that sounds like the sort of burdensome and byzantine, you're right! Ordinarily this fact pattern lends itself to the perspective that government procurement should be more flexible. After all, the government determined that WGS provided the best value. And it's not like WGS is unaware of the need to retain key employees; it provided letters of commitment, etc. But it didn't explicitly say "here's my key personnel retention plan".
And yet, as I noted above, this was a case that felt like the burden was warranted, where that burden was a feature of federal procurement, not a bug. Why?
Because the USACE was buying "decommissioning and dismantlement of the SM-1A nuclear reactor facility located in Ft. Greeley, Alaska." I'll repeat for emphasis: the case involved a nuclear reactor facility.
Look, y'all. I can't pretend that I know what is all involved in dismantling a nuclear reactor. But it sure does seem like, if you were going to retain a company's services to do it, you'd want a company that is... meticulous?
I'm just saying that, if I had actual radioactive waste that needed disposing, I'd want my contractor to "dot every i" and "cross every t". I'd want the most detail-oriented toxic-waste-removal organization I could find.
And although it may seem a bit formal for the GAO to throw out a proposal because the proposer didn't include a retention plan, I can't say I disagree with the outcome in this case.
In the end, it is true that the government creates silly rules and processes that weed out companies that don't know how to meet all of the government's silly rules. In this case at least, I'm kinda glad?