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Tuesday, January 17, 2017

What a revolting development this is

Ok, I'm showing my near-septuagenarian age, but from the 1940's world of entertainment came the oft-used line, "what a revolting development this is".

And from later days in the U.S. Navy comes the "KISS principle": Keep It Simple, Stupid.

These two phrases, and the sentiment they express, come together in the following article written by David P. Goodwin and Erik C. Porcaro of the law firm Troutman Sanders LLP which can be found on the Mondaq website

In the era of just a few decades ago, particularly but not exclusively in IT procurements, the government procured bespoke supplies, services and systems, developed from the ground up for a particular purpose, and typically with proprietary locks on all the doors and windows which, obviously, benefit an incumbent.

But the industry has evolved, and IT systems these days often sport a variety of generic core programs that can easily be focused for particular purposes by the add-on of an "app" or two. This is the result of programmers taking the risk of creating a profitable program and putting it on the shelf marked "Sale". 

Both the federal government and local governments using the ABA Model Procurement Code for a guide (e.g., 2 GAR § 4102(a)(3): Preference for Commercially Available Products) have expressed preference for standard commercial products and services over development contracts. But it is hard to wean institutions from their habits, as this article illustrates.

New Leverage In The Federal Marketplace For Commercial Item And Commercial Systems Contractors
In Palantir USG Inc. v. U.S., the Court of Federal Claims recently issued a ruling in favor of Palantir's pre-award protest citing the need for the government to evaluate all viable commercial options under the Federal Acquisition Streamlining Act of 1994 ("FASA") when issuing solicitations. Palantir, a data-mining company, lost their initial GAO bid protest challenging the Army's bid solicitation process relating to an enhancement of the Distributed Common Ground/Surface Systems (DCGS) which allows for sharing of multi-sensor combat intelligence and weather information among the armed forces.

FASA lowered procurement barriers and opened up government contracts to bids from small businesses by promoting fixed-price contracting based on performance. Another example is the preference FASA created given to buying commercial off-the-shelf items (COTS Items), rather than purchasing through the more complex contracting process for government-unique items. FASA also defined commercial items more broadly and exempted such purchases from over thirty statutes that contain requirements unique to government procurements. The goal of these changes was to simplify the procurement process for companies who do not ordinarily sell to the government. Though this goal has been achieved in certain ways, many in Government and in industry feel that the Government continues to lose out on the faster pace of commercial sector development, especially in high-tech and information technology.

At the heart of the Palantir case were Palantir's assertions that the solicitation process for bids blocked commercial firms like Palantir from competing, in violation of FASA. The Army issued a developmental solicitation which required bids for the creation of an entirely new data integration system. Palantir argued the Government could buy the existing core functionality from the commercial market and integrate any number of additional applications at less cost than developing new systems. In choosing to issue a developmental solicitation, the Army overlooked a viable commercial market system thereby violating FASA, which requires government agencies to frame their requirements so as to accept commercial products "to the maximum extent practicable."

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