DoD contracting is on a transparency tightrope

Thursday - 7/15/2010, 9:40am EDT

Roger Waldron, Counsel, Mayer Brown LLP

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By Suzanne Kubota
Senior Internet Editor
FederalNewsRadio.com

Defense contracting officers have a new set of marching orders: before bundling up small contracts to make a larger one, notice has to be posted on FedBizOpps.gov. The idea is too address concerns of small businesses who say the bigger contracts make it impossible for them to compete.

The interim rule may be easier said than done.

Roger Waldron, Counsel at the law firm Mayer Brown told Federal News Radio the request for comments to the change on the Defense Federal Acquisition Regulation (FAR) demonstrates two fundamental competing interests that the government has.

Number one, obviously, there's the interest in openness, transparency, making this information available to the public. You balance that against the government's goal, and interest in, obtaining competition for requirements, and one of the key aspects of getting firms to be able to compete for government requirements is confidence on the part of industry that their sensitive or proprietary commercial financial information is going to be protected from disclosure to their competitors or to other customers.

Waldron said that really what the FAR council is doing is asking the public for ideas for efficiency, transparency and how to protect information at the same time.

He pointed out there are "already (transparency) processes in place so the question is what would be the value added here and I'm not so sure that ultimately there's a huge value added."

In the end, said Waldron, it's as though the government is being forced to walk a tightrope balance between transparency and transparency for transparency's sake

This rule's almost like a nexus where people...I think should step back now, get these comments, take a look and say "Okay, what's the right balance? What are we trying to accomplish?" Ultimately what is the additional benefit to the public to creating the system versus the cost of creating some sort of process to do this for both industry and government. I believe in openness and transparency, but there's got to be a balance to it, because I also believe, fundamentally, in competition for government requirements. And I think, to the extent there's this big push that threatens the ability of contractors, and I'm not saying it does but if there's any perception or apprehension on the part of contractors that their information is going to be disclosed, it's going to make them think twice about competing for requirements.

The interim rule is open for comment until September 13, 2010.