HOW UNFAIR JUSTIFICATIONS AFFECT SMALL BIZ AWARDS
By Raul Espinosa
The Senate Armed Services Committee had directed GAO recently, “to review the ‘contractor-
vendor relation’ as it pertains to quality vs price.1 For fairness to to the statutory small business
reservation, a similar GAO review is badly needed to examine the relationship between ‘the
Contracting Officer (CO) and the program (end-user) personnel.” Such review will help put an
end to the alleged biases, preferences, prejudice and favoritism, which both lawmakers and small
business advocates have blamed for creating a ‘dysfunctional culture,’ which have prevented small
businesses from receiving ‘maximum practicable utilization’ as required by P.L. 95-507 2.
The FPA Think Tank at UNF has concluded that ‘unfair justifications’ has caused havoc in contracts
involving the statutory small business reservation (i.e., contracts between $3,000 and $100,000)
because this endemic abusive practice has worked to the detriment of small businesses which are
most often the lowest bidders and their offers are often unfairly discarded due to unfair justifications.
Program personnel or ‘end-users’ are currently circumventing the FAR and/or fooling the COs
through justifications which are arbitrary and capricious to make sure the CO awards the contract to
the brand or to the vendor the end-user wants. That, folks, is un-American!
The Office of Federal Procurement Policy (OFPP) had issued four (4) procurement directives3 to,
among other things, convince the contracting community to avoid ‘justifications’ altogether in ‘non-
essential’ commodities to the business of the government; to always rely on ‘brand-name or equals’;
to rely on ‘salient characteristics’ which are not unique for fair comparisons for the purpose of
increasing competition. Unfortunately, these directives, according to the FPA Think Tank at UNF,
“were not aimed at the government workforce which are the culprits and nothing has happened.”
Directors of the Office of Small and Disadvantaged Business Utilization (OSDBU) across the
government were randomly polled on the subject and those contacted were unanimously in favor of
an Executive Order to the entire government workforce and on an Agency head (top down) directive
approach subjecting end-users to disciplinary action for using unfair justifications in evaluating small
business awards. Is OFPP listening?
When one realizes that the government has never met Congress statutory mandate in contracting
with small businesses and most Federal agencies have failed at meeting their own socio-economic
goals since the SBA began reporting them through their SBA Report Card, one will realize the huge
magnitude of the problem. Let’s not forget the fact – as reported by the SBA OIG - that Agencies
have been unfairly taking credit for billions in small business awards given to large businesses.
-- MORE --
1
Congress ask GAO to report on trend. - http://fcw.com/blogs/acquisitive-mind/2009/10/price-cost-top-factors-contract-evaluations.aspx?s=fc
2
P.L. 95-507 defines set-asides. - http://www.docstoc.com/docs/3626707/The-public-law-that-defines-procurement-set-asides
3
Procurement Advisory Summarizing OFPP directives. - http://www.prweb.com/prfiles/2008/08/31/162468/FPAAdvisoryUnfairJustifications.pdf
Holding end-users accountable for disciplinary action when they are caught influencing contracts can
be accomplish through the use of a self-incriminating clearance form whenever program personnel
places a purchasing request with the CO. It’s that simple!
There is substantive proof – in the form of cases and dsisions - which had been turned over to the
SBA OIG and to POGO for investigations4 to clearly prove that “end-users often lie or misrepresent
the truth in their justifications in order to either get exactly what they want or to prevent an acceptable
‘equal’ to be selected for the award.”
For one thing, ‘end-users’ do serve in the role of the CO ‘experts’ besides being the ones who bring
up the acquisition requests to the CO, which is a conflict of interest to begin with. This is significant
because the end-users have been shown to have unfairly given preferential treatment to established
brands or to preferred suppliers. The record has shown that the suppliers or brands benefiting from
these efforts are the large businesses, which have monopolized – in the past - government
procurement.
FPA encourages investigative reporters to both review and report on the abusive practice through
these cases, including the resulting awards. The history behind these solicitations will help
demonstrate how ‘unfair justifications’ have unfairly ‘wired’ (or attempted to wire) the procurements
and/or how unfair justifications have affected small business awards. Some of the outcomes will even
demonstrate how the government’s own independent vehicles for ‘dispute resolution’ appear to be
bias in justifying the government’s decision rather than remaining ‘neutral.’ In other words, there is
also a dire need for strengthening the ‘size protests’ process and for creating a truly independent
alternative dispute resolution’ vehicle for handling disputes affecting small business awards.
FA2517-08-T-6100 FA48800-08-Q-LN01
FA4427-08-Q-0013 N0018908TG095
HSCG23-07-R-PMD241 W804F23BN-08-007
M0031806T0610 FEDBID BUY # 70279
F2B1AE8192A001 FEDBID BUY # 49582
F1V3J79100A001 F1V3J79100A002
FA4690-09-T-0031 F1M31V9177A002
Details involving the disputes involving the above Cases are available through FPA
What follows are three out-of-the-box recommendations from the FPA Think Tank at UNF which
would help prevent ‘unfair justifications.’
1) Hold end-users accountable for disciplinary action by using a self-incriminating ‘procurement form’
which would ascertain that none of the ‘salient characteristics’ of the commodity sought are unique,
patented or restrictive so that ‘equals’ can be easily selected and competition promoted.
2) Prohibit the use of ‘sole brand’ or ‘sole source’ without first publishing their justification on
Fedbizopps’ with a note which would read, “if you believe specifications are unduly restrictive, advise
CO within ‘X’ days”.
3) Require the contracting community to publish ALL award results – regardless of their amount - on
fedbizopps and automatically notify all interested parties of the award details. ###
Raul Espinosa is the Founder and Spokesperson for the Fairness in Procurement Alliance. The FPA mission is to bring fairness to public
procurements so that small and disadvantaged businesses can both compete and prosper at the federal, state and local levels. FPA operates
a Think Tank at UNF whose goal is to double the number of small businesses contracting with the Government by the year 2020.
4
SBA IG and POGO asked to investigate unfair justifications. - http://www.prweb.com/releases/2008/09/prweb1113164.htm