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31 Procurement Law. 1 (1995-1996)

handle is hein.journals/procurlw31 and id is 1 raw text is: Competition in Federal Procurement Revisited WWM T. WOODS As Congress and the administra- tion proceed with a second round of procurement reform, there is considerable focus on what long has been the anchor of the system: competition. A number of bills have been introduced that would change some of the rules regarding when and to what extent competi- tion is required. Changing the competition rules is partic- ularly significant because of the effect such change could have on other issues, such as the resources required to make the system operate properly and the type of over- sight mechanism needed to identify those instances when it does not. Though the bills currently before the Congress differ in approach, they share a common objective: increasing the efficiency with which the government acquires goods and services. When the Congress returns from its summer recess, discussions about how best to accomplish that objective are likely to intensify. In anticipation of the debate, this article reviews the existing competition requirements, some of the perceived problems with those requirements, and the proposals to change the rules to address the problems. History of Competition Requirements Although Congress mandated the use of competition in awarding government contracts as early as 1809,' the cor- nerstone of our competitive system is often cited as section 3709 of the Revised Statutes. Originally enacted in 1861,2 this statute required that all purchases by the government be made through formal advertising. The concept was William T. Woods is Assistant General Counsel for the National Security and International Affairs Division, U.S. General Accounting Office, Washington, D.C. The views expressed herein are solely those of the author and do not necessarily represent the opinions of any agency of the U.S. Government. fairly simple. Prospective contractors submitted sealed bids in response to detailed specifications written by the procuring agency. Bids were opened publicly at a designat- ed time and place, and the award was made on the basis of the lowest bid submitted by a responsible bidder. Formal advertising generally remained the required method of government procurement until after World War II. In the Armed Services Procurement Act of 1947, Congress specified seventeen circumsta-nces under which agencies could procure through negotiation. The Federal Property and Administrative Services Act subsequently extended virtually the same authority to civilian agencies.4 The authority to negotiate contracts still required that competition be pursued to the maximum extent practicable.' Despite the requirement for competition when con- tracting through negotiation, the method came to be per- ceived as noncompetitive, and Congress became increasingly concerned with the extent and quality of competition in government contracting. The concerns culminated with enactment of the Competition in Contracting Act of 1984 (CICA).6 The Act essentially abandoned the existing preference for formal advertising (continued on page 18)

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