In this Issue

Federal Government

CICA's Uncle Sam Exception

Contracting Act (CICA)1 requires “full and open competition” for federal procurements unless a statutory exception applies. Significantly for purposes of this article, CICA states that its open competition requirements do not apply when “a statute expressly authorizes or requires that the procurement be made through another [executive] agency or from a specified source.”2 The exceptions “contained in other procurement statutes ‘are separate and distinct routes which an agency may pursue without compliance with the full and open competition requirement.’”3 Congress has enacted several such statutes that, in effect, authorize the federal government to contract with itself, or other governmental entities, for goods and services without competing the procurement within the commercial marketplace. The most common statutory exception to CICA’s competition requirement is the Economy Act, but lesser-known exceptions include the Government Management Reform Act, certain revolving funds, and statutes authorizing Intergovernmental Service or Support Agreements.

Union

Performance Evaluations: Leveling the Playing Field

The Federal Acquisition Regulation (FAR) requires federal agencies to evaluate contractor performance and report the evaluations in the Contractor Performance Assessment Reporting System (CPARS), a government-wide database.1 It provides detailed requirements for agencies to follow in preparing evaluations, including the requirement to justify ratings with sufficient written narratives and “objective facts.”2 The FAR puts teeth in the CPARS evaluations, requiring federal agencies to consider past performance as part of source selection decisions.3 Although inaccurate evaluations may hinder the government’s ability to make “wise” source selection decisions, the inaccuracies can have a disproportionally negative impact on contractors. Administrative and legal avenues exist for contractors to challenge evaluations, but contested evaluations remain in the government’s CPARS pending resolution of the challenge.

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