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Sunday, January 8, 2012

Righting specifications

A news source from Orangeburg County, South Carolina USA, has reported on a procurement controversy there, forming the basis for discussion in this post.

I have no knowledge of the content of the County's procurement law, but it has come under critique in circumstances
similar to cases seen on Guam, and elsewhere, where the real issue was not the content of the law but the failure of the procurement officials to follow the law, or perhaps, even being informed about it.

The controversy involved the acquisition of safety and communications equipment, such as light bars, sirens and vehicle camera systems to outfit 20 new County police vehicles. The County Council accepted the Sheriff's Office recommendation to accept the low bid of $112,004.60 by an out of town supplier, $2,000 under the local supplier's bid. It has a subplot about preference for local vendors. You need to read the whole story for the context.

Councilmen question county's procurement code

"The more I learn about the code we passed, the more flaws I see," Councilmen Clyde Livingston said. "It is obvious to me that the bid specifications were so tight that there was only one company in the state of South Carolina that could bid on it.

"I think it reflects poorly on the county in putting together the procurement code that a gap like this exists."

Sheriff's Office Capt. Butch Farnum told council Light-N-Up has the same type of equipment currently found in the agency's existing vehicles. He noted the Roebuck-based company has been the primary vehicle equipment vendor since before 2007.

"The only criteria I was aware of was to put the specs out according to the equipment we needed," Farnum said. "The sheriff elected to determine we should keep uniformity in our equipment to become an accredited law enforcement agency. That was a factor for me to put this all together.

"The second bidder (Kelley) had two exceptions to the specifications we asked for."

Under the ABA Model Procurement Code for states and municipalities, which forms the basis for the Guam procurement law, it is a fundamental principle that the government must "foster" competition. Where specifications funnel awards to a particular contractor or supply or service, they fail that essential undertaking.

The Code, and Guam law, reiterate that principle in requiring that specifications be written to "encourage competition" and "not be unduly restrictive". It also has severe limitations on use of sole sourcing, brand name specifications, and use of "brand name or equal" specifications, all requiring written determinations in justification of the particular need. Any violation of those edicts is ground to protest the solicitation.

"Uniformity", or conformity, or compatibility with existing equipment can be legitimate parameters when assessing need and writing specifications. But the danger in the anti-competitive aspect of that criteria, and the suggestion of favoritism it raises, requires that any such requirement be critically and objectively assessed. Without that critical assessment, we might still be equipping police with ponies and flintlock pistols.

One easy way, when dealing with procurement of supplies, to cast doubt on the legitimacy of any such claim is to consider if the supplies sought are standard common items of equipment. It is much harder to justify the need for a particular standard piece of equipment than it is to justify the need for a bespoke item (and even bespoke items should be questioned for particular needs).

The Guam and ABA regulations declare the express policy "to procure standard commercial products whenever practicable", and "unique requirements shall be avoided". They require that specifications not specify a product having features which are peculiar to the products of one manufacturer without a justifying written determination.


In many standard commercial products, there are industry standards that can be identified from third party rating or testing sources. These standards should be the guiding light for such specifications, not the proprietary specifications of one particular supplier or manufacturer.

The ABA regulations implementing the Model Code speak extensively to this subject, as do
the Guam regulations. The topic of specifications is taken up in Chapter XIV of the Guam Procurement Process Primer, which is available freely, as noted in the righthand sidebar.

I'd think that if Guam can get its regulations right on the obligations of specification writers, it would be a simple matter for a county in South Carolina to do the same.

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