**Best Value Source Selection**

**In The A-76 Process**

[Major Gregory E. Lang \*]{.smallcaps}

**I. INTRODUCTION**

Office of Management and Budget (hereinafter OMB) Circular A-76[^1]
describes executive policy which requires federal agencies, in certain
cases, to contract out activities to commercial firms rather than
perform them in-house. Activities which are frequently contracted out
include base operations and motor pool maintenance.[^2] After a dormant
period,[^3] the Department of Defense (hereinafter DoD) is once again
placing strong emphasis on the A-76 program. The main reason is quite
simply money, or a lack thereof.[^4] The Defense Science Board[^5]
recently reported the DoD could save \$30 billion by outsourcing support
activities.[^6] In these times of shrinking budgets and increased
operating tempo, the DoD is looking to save money anywhere it can.[^7]

The OMB has recently completed a radical change in the methods federal
agencies may use to determine if an activity will remain in-house. On 1
April 1996, the OMB published a revised supplement to Circular A-76.[^8]
The 1996 Supplement provides that the decision whether to contract out a
commercial activity can now be based on "best value" to the government.
Prior to this change, the decision to contract out was based solely upon
cost and cost related factors. No specific explanation for this change
is given by the OMB in the introductory section of the 1996 Supplement.
One could conclude that the OMB enacted this change to bring A-76
procedures in conformity with current procurement practices; practices
which have changed greatly since the enactment of the Competition in
Contracting Act of 1984 (hereinafter CICA), which eliminated the
preference for sealed bidding and formal advertising, and also permitted
the use of competitive negotiations.[^9]

The introduction of best value source selection into the A-76 process
is, however, not without its problems. Using non-cost factors to
evaluate in-house versus commercial performance may create conflict of
interest problems, lead to increased litigation, and be practically
difficult. This article will discuss the A-76 process and the
introduction of best value source selection into that process. In
addition, it will also identify potential problems and discuss some
suggested remedies.

**II. A-76 Public Policy and Procedures**

**A. The Public Policy Behind Circular A-76**

The general premise behind Circular A-76 is that agencies should rely on
private enterprise "if the product or service can be procured more
economically from a commercial source."[^10] Along those lines, the 1996
Supplement expands that premise by stating the A-76 program is necessary
because Americans want a government that is "more businesslike and
better managed."[^11] Circular A-76 is part of a larger effort to
"reinvent" government by considering a wide range of options including
"the conversion of recurring commercial activities to or from in-house,
contract or interservice support agreement (hereinafter ISSA)
performance."[^12] Circular A-76 is not merely a contracting out
procedure, rather it is intended to balance the interests of all the
parties by providing a level playing field between private offerors and
public workers. In addition, the A-76 program "encourage\[s\]
competition and choice in the management and performance of commercial
activities."[^13] Finally, it provides federal managers the mechanism to
make sound, defensible business decisions.[^14]

**B. Circular A-76 Procedures**

Circular A-76 establishes a mandatory process that executive agencies
must follow.[^15] Military departments periodically review their
activities to determine whether their own operation is the most
economical provider of commercial services and supplies or whether a
private offeror could provide those services and supplies more
economically.[^16] However, activities which are inherently governmental
functions must always be performed by government employees and are
excluded from the A-76 process.[^17] Activities which are not
governmental functions are commercial activities[^18] and may be
performed by government employees or by contract, dependent upon the
results of an A-76 cost comparison.[^19]

Office of Federal Procurement Policy (hereinafter OFPP) Policy Letter
92-1, provides detailed guidance in determining which government
functions are "inherently governmental."[^20] This policy letter states
that inherently governmental functions can normally be broken into two
categories: (1) acts requiring discretionary authority; and, (2) acts
involving monetary authority and entitlements.[^21] The policy letter
provides lists of factors government officials should consider when
determining which government activities are inherently
governmental.[^22] Excluded functions relevant to the DoD are: The
command of military forces, especially the leadership of military
personnel who are members of the combat, combat support, or combat
service support role; the direction and control of intelligence and
counter-intelligence operations; and the direct conduct of criminal
investigations.[^23]

When a federal agency determines an activity it performs is not
inherently governmental and is subject to A-76,[^24] it develops a
Performance Work Statement (hereinafter PWS) which analyzes the task to
be done, serves as the scope of the work, and is the basis for all
compared costs.[^25] The agency then prepares a Management Plan which
describes the government's Most Efficient Organization (hereinafter
MEO).[^26] The MEO fully describes the manner in which the agency will
most efficiently perform the work described in the PWS.[^27] The agency
then calculates the cost estimate for government's in-house performance
based on the MEO.[^28] After arriving at its own cost estimate, the
agency solicits bids from the private sector.[^29] The lowest,
technically acceptable bid is selected and is adjusted by the agency to
arrive at the real cost of contracting out.

**C. Cost Adjustments**

The 1996 Supplement (as did the previous 1983 Supplement[^30]) sets out
the requirements for comparing in-house costs with those of the best
commercial offeror.[^31] The agency is required to make various
adjustments to the best offer to obtain the real cost of the product or
service.[^32] For example, the agency must increase the commercial offer
by adding one-time conversion costs such as labor related expenses,
including severance pay and retraining expenses.[^33] The agency also
must subtract from the commercial offer the estimated federal income tax
the offeror would have to pay over the performance period.[^34] Circular
A-76 requires an independent review of the in-house cost estimates. In
the Air Force, this review is provided by comptroller offices at either
the major command or wing/installation level depending on the number of
full-time equivalents[^35] under review.[^36]

**D. Cost Differential**

After adjusting the in-house and commercial offeror's calculations so as
to arrive at the real cost, the agency compares the in-house and private
offeror's cost figures. If the private offeror's bid is ten percent or
more below in-house cost, the agency awards the contract to the private
offeror. The ten percent margin is added \"to ensure that the Government
will not convert for marginal estimated savings."[^37] An activity will
not be converted from contract or ISSA performance unless the ten
percent cost differential is met.[^38] In instances where there are no
qualified offerors or the lowest offeror's bid exceeds the in-house bid,
the commercial activity will be kept in-house.

**E. Change in Policy**

The 1996 Supplement now allows consideration of factors other than price
in determining whether the in-house MEO or a private offer will be
selected to perform the commercial activity under review. The 1996
Supplement states:

> 1\. All competitive methods authorized by the Federal Acquisition
> Regulation are now appropriate for cost-comparison under the Circular
> and this Supplement. This includes sealed bid, two-step source
> selection and other competitive qualifications-based or negotiated
> procurement techniques.
>
> 2\. In selecting the method of procurement, and contract type, the
> contracting officer analyzes the PWS and applies the guidance
> contained in OFPP Policy Letter 91-2 and FAR Part 16 \[and\] . . .
>
> 3c. The \[Source Selection\] Authority reviews contract and ISSA
> offers and identifies that offer which offers the "**best overall
> value** to the government." This contract offer competes with the
> Government's in-house estimate.[^39]

**III. Best Value Source Selection**

Best value source selection is a basis for award in which the agency
reserves the right to trade-off cost and technical considerations in
selecting the successful offeror. Although the Federal Acquisition
Regulation (hereinafter FAR) does not specifically define "best value,"
it does state that in negotiated procurements, "\[t\]he solicitation
should be structured to provide for the selection of the source whose
proposal offers the greatest value to the Government in terms of
performance, risk management, cost or price, and other factors."[^40]
The Air Force Supplement to the FAR defines best value as "the most
advantageous offer, price and other factors considered, providing the
best mix of utility, technical quality, business aspects, risks, and
price for a given application."[^41]

Contracting officers weigh several factors in making the decision to use
best value source selection. Generally, contracting officers use best
value source selection when the government needs high technical
capability, expects benefits from multiple solutions, or the relevant
technology is rapidly changing. Best value source selection often gives
the contracting officer or source selection authority maximum
flexibility.[^42] As with all requests for proposals (hereinafter RFPs),
negotiations are required unless "a statement is included in the RFP
that the proposals are intended to be evaluated, and award made, without
discussions with the offerors (other than minor clarification), unless
discussions are determined to be necessary."[^43] Some factors, such as
cost or price[^44] and past performance[^45] must be evaluated in RFPs.

When the decision to use best value is made by the government, relevant
evaluation factors and subfactors must be developed during the
acquisition planning stage based upon the specifications and the
statement of work. Only factors and subfactors which would be expected
to reveal variances among the proposals should be chosen[^46] and the
factors may be weighted to reflect requirement priorities.[^47] An
objective baseline should be developed along with evaluation factors.
Finally, a rating system needs to be established. Ratings systems are
normally numerical, adjectival, or based upon color coding.[^48]

After the contracting officer receives proposals from the offerors, the
contracting officer has to determine which of the responsible offerors
are in the competitive range and hold discussions with those
offerors.[^49] Although contracting officers are not allowed to auction
one offeror against another during discussions,[^50] it is quite
appropriate during negotiations for the government to let the offeror
know that the submitted proposal is above the government estimate or
disclose the amount of available funds.[^51] After completion of
discussions, offerors will normally submit best and final offers.[^52]
Finally, the Source Selection Authority makes a tradeoff analysis (cost
versus non-cost factors) and makes the decision as to which proposal
offers the overall best value to the government.[^53]

The best value procedures described above will have to be adapted to the
A-76 process. The 1996 Supplement does discuss the adaptation of best
value source selection into the A-76 process. Unfortunately, the
guidance the 1996 Supplement provides is cursory and somewhat confusing.
Below are the additional procedures listed by the 1996 Supplement which
must be followed in best value procurements.

**IV. Best Value in the A-76 Process**

Policy Letter 91-2 from Office of Federal Procurement Policy reflects
the Congressional policy in CICA[^54] and is cited by the 1996
Supplement[^55] as guidance to follow in contracting out determinations.
This policy letter states that agencies shall use competitive
negotiations for acquisitions where performance above the minimal
acceptable level will enhance mission accomplishments to such an extent
that the corresponding increase in cost will be warranted. When those
situations exist "contracting activities shall give careful
consideration to developing evaluation and selection procedures that
utilize quality related factors such as: \[t\]echnical capability,
management capability, cost realism, and past performance."[^56] Given
this preference, best value source selections in the A-76 process should
become much more common.

**A.** **Cost Comparison Study Team**

After an activity is identified by a military department[^57] and the
appropriate notifications are made,[^58] the cost comparison study team
is formed.[^59] The cost comparison study team is responsible for
developing the PWS and the Management Plan describing the MEO. Members
of the cost comparison study team who draft the PWS should not include
the same employees who may lose their jobs if the activity is contracted
out.[^60] In order to avoid conflict of interest issues, special care
must be taken by the cost comparison team to ensure the PWS does not
manipulate the process by limiting outside competition, or otherwise
violate an industry service or service grouping norm.[^61] For example,
evaluation criteria could be improperly established that match a
particularly strong ability of the in-house work force or management.
For this reason, it is imperative that legal counsel be added to the
cost comparison team to act as an honest broker.

The PWS defines what is being requested[^62] and includes the
performance standards, measures, and time frames. It is at this point
where the best value non-cost factors and subfactors will be developed.
The PWS is provided by the cost comparison team to the contracting
officer for review and provides the technical performance sections of
the RFP that the contracting officer will develop and issue to the
private sector.[^63]

The 1996 Supplement lists specific procedures for negotiated source
selections. Under these procedures, the cost comparison team must
complete the Management Plan and the Technical Performance Plan.[^64]
The Management Plan reflects the PWS and includes the in-house cost
estimate. It also identifies the "organizational structures, staffing
and operating procedures, equipment and transition plans, and inspection
plans necessary to ensure that the in-house activity is performed in an
efficient and cost effective manner."[^65] The Technical Performance
Plan, which is only required for negotiated source selections, describes
the government's management capabilities, personnel qualifications,
performance history, delivery schedule compliance, and technical
capability to perform the workload specified in the PWS. The Technical
Performance Plan should reflect the MEO.[^66]

**B.** **The Independent Review Officer**

To ensure equity in the cost comparison process, both the Management and
Technical Performance Plans are sealed after completion and delivered to
an A-76 Independent Review Officer (hereinafter IRO). The 1996
Supplement specifies that the IRO must be an impartial person from an
"impartial activity that is organizationally independent of the
commercial activity being studied and the activity preparing the cost
comparison."[^67] The 1996 Supplement does not discuss what
"organizationally independent" means.[^68] The IRO must certify, in
writing, that the government's cost estimate is in full compliance with
the procedures and requirements of the 1996 Supplement. In addition, the
IRO reviews the Management and Technical Performance Plans to ensure
they contain data which "reasonably establish the Government's ability
to perform the PWS within the resources provided by the MEO."[^69] The
IRO performs the certification and review before those documents (with
the exception of the PWS) are submitted to the contracting officer.
Since the IRO may be from the same installation as the activity being
studied, installation counsel should ensure this person is truly
independent yet knowledgeable of the process, and should be available to
advise the IRO on any legal issues that may arise.

**C.** **The Source Selection Authority**

The 1996 Supplement requires that a Source Selection Authority
(hereinafter SSA) be established in accordance with the FAR, including
"assurances that there are no potential conflicts of interest in the
membership of the authority."[^70] This language is somewhat imprecise
but seems to indicate that a SSA and a separate Source Selection
Advisory Council (hereinafter SSAC) be established.[^71] The SSA is
responsible for determining which of the competitive offers represents
the "best overall value" to the government.[^72] The best competitive
offer is then evaluated by the SSA against the government's in-house
Management Plan, provided to the SSA by the contracting officer.[^73]
The Management Plan must comply with the technical proposal requirement
of the solicitation.[^74] The SSA then evaluates the in-house offer to
determine if it meets the "same level of performance and performance
quality" as the best competitive offer.[^75] The SSA does not review the
in-house cost estimate at this stage.

Based on the SSA's evaluation of the in-house offer, the government
makes all changes necessary to meet the performance standards accepted
by the SSA. The government submits revised cost estimates to the
Independent Review Officer for re-certification. These steps are taken
to "assure that the Government's in-house cost estimate is based upon
the same scope of work and performance levels as the best value contract
offer."[^76] After all the necessary adjustments have been made to
ensure the best private offer and the government's in-house cost
estimate are based upon the same scope of work and performance
standards, the contracting officer opens the government's cost estimate
and calculates the cost adjustments on the cost comparison form.[^77]
The A-76 cost adjustment procedures discussed above[^78] are not
suspended in best value source selection but are only applied to the
cost factors. The 1996 Supplement does not attempt to add any type of
non-cost factor differential to the private offeror's successful
proposal in addition to the ten percent differential on cost related
factors. The complete government in-house offer and the best private
offer are then evaluated by the SSA to determine which will offer the
best overall value to the government.

The procedure by which the SSA evaluates the best competitive offer
against the in-house Management Plan in order to allow the government to
meet the performance standards accepted by the SSA is problematic and
could lead to protests. Allowing the government an opportunity to amend
its Management Plan based upon the SSA\'s evaluation of the best
offeror\'s proposal could be viewed by offerors as violating both the
FAR and Section 27 of the Office of Federal Procurement Policy Act, as
amended.[^79] FAR 15.610 states:

> \(d\) The contracting officer and other Government personnel shall not
> engage in technical leveling (i.e. helping an offeror to bring its
> proposal up to the level of other proposals through successive rounds
> of discussion, such as by pointing out weaknesses resulting from the
> offeror\'s lack of diligence, competence, or inventiveness in
> preparing the proposal.
>
> \(e\) The following conduct may constitute prohibited conduct . . .
>
> \(1\) Technical transfusion (i.e., Government disclosure of technical
> information pertaining to a proposal that results in improvement of a
> competing proposal) . . . . [^80]

An offeror who submits the best competitive proposal and then loses out
to the in-house offer after the SSA has given the government the
opportunity to adjust its offer to meet the same level of performance
and performance quality as the best offer, will most likely protest to
the General Accounting Office (hereinafter GAO) or the appropriate
courts, citing this FAR provision. The GAO may review protests alleging
issues of technical transfusion during A-76 source selections \"since
the competitive procurement system is involved.\"[^81] SSAs should
proceed very cautiously in this area.

It addition to the technical leveling/transfusion issue, there are other
reasons that the activities of SSAs and SSACs could become the focal
point of legal disputes much more often than in non-A-76 best value
source selections. Quite possibly, the SSA or members of the SSAC may be
directly responsible, be in the chain of command, or be related to
employees who work for the commercial activity under review. Thus, it is
conceivable the SSA or SSAC may evaluate best value factors in an
atmosphere clouded with personal interest or bias.[^82] For example, in
an A-76 best value source selection which includes past performance as
an evaluation factor, the SSA or SSAC could inflate the score of the
government's past performance if the SSA or members of the SSAC have
rated, supervised, or personally known the affected employees.
Conversely, if the affected employees are members of a union that the
SSA or members of the SSAC have had poor past relationships with, that
factor, or for that matter any best value factor, could be unfairly
scored lower.

**V. Relevant Case Law**

Improprieties in the source selection process can lead to aggrieved
contractors filing protests. Conversely, federal employees, or their
unions, who face loss of employment have ample opportunities to
challenge agency A-76 procedures via the agency's administrative appeal
process and in federal district court. The following are cases which
help illustrate potential legal issues which are particularly relevant
to best value source selections in the A-76 process.

**A.** **Protests**

The procedures for evaluating proposals and award of contracts (either
in-house or to a commercial offeror) may be reviewed by the GAO,[^83]
federal district court,[^84] and as of 1996, the Court of Federal
Claims,[^85] under an agency's protest procedures.

In *U.S. Department of Navy v. Latecoere International, Inc*.,[^86] the
protester, a French corporation, submitted a RFP to build a training
system for the Navy to train pilots of high performance jet aircraft.
The protester\'s was initially deemed to be the best value by the SSAC
but because of improper considerations involving perceived political
pressure to "buy American," the acquisition process was manipulated to
eventually award to another bidder, Environmental Tectonics Corporation
(hereinafter ETC). The protester\'s specific allegations were (1) the
advisory council increased ETC's rating in three critical areas of the
procurement from "marginal" to "acceptable" without reevaluation of
these areas; (2) the SSA determined cost to be the most important
factor, in contradiction to the terms of the solicitation; and, (3) the
SSA failed to adequately justify his decision.

The Eleventh Circuit Court of Appeals upheld the protest, holding that
while contracting officers are entitled to reasonable discretion, that
discretion is not absolute. The court stated that proof an award lacks a
reasonable basis, or was awarded in bad faith, generally establishes
arbitrary and capricious action which, in this case, deprived the
protester of a fair and honest consideration of its proposal.[^87] The
court reversed the district court\'s affirmation of the award to ETC and
remanded the case back to the district court.

In *Dynacorp,*[^88] the protester challenged the Air Force's decision to
convert military personnel operated aircraft maintenance services at
Laughlin AFB to in-house performance by civilian employees, rather than
contract out for the services.[^89] The protester\'s main argument was
that the Air Force failed to include numerous costs in the in-house bid
as required by Circular A-76 and its 1996 Supplement. The Comptroller
General agreed, determining that the Air Force failed to include the
costs of recruiting, hiring, relocating, certifying, and training its
new in-house employees, while requiring the protester to include such
costs as part of its bid. The Comptroller General stated "we have
consistently held that contractors and the government should compete on
the basis of the same scope of work on an A-76 procurement."[^90] In
best value A-76 source selections this will be even more of a challenge.

**B. Federal** **Employee Actions**

In past years, aggrieved federal employees had limited redress to
challenge outsourcing determinations made under Circular A-76. The 1996
Supplement (as did the 1983 Supplement[^91]) provides an appeal process.
The administrative appeal authority is an individual who serves within
the agency.[^92] The 1996 Supplement does not provide much guidance on
the form, substance, or appellant's burden in such an appeal; the
Supplement merely states the appellant[^93] must "demonstrate that the
items appealed, individually or in aggregate, would reverse the
tentative position."[^94] Unsuccessful appellants may renew their appeal
at federal district court. Until recently, such appeals were
unsuccessful.[^95]

*Local 2855 v. United States*[^96] is illustrative of what was once the
clear majority rule. In *Local 2855*, a group of federal employees and
their union filed a class action suit challenging the Army's decision to
contract out stevedoring and terminal services as a result of an A-76
cost comparison. In affirming the district court, the Third Circuit
Court of Appeals held the plaintiff lacked standing under the
Administrative Procedures Act (hereinafter APA)[^97] because the Army's
decision to contract out those services fell within the "committed to
agency discretion" exception to reviewability under the APA.[^98] The
court's rationale was that the "absence of fixed standards \[in the A-76
process\] reflects an understanding that the type of decision made by
the Army here is necessarily a matter of judgment and managerial
discretion . . . ."[^99]

The court in *Diebold v. U.S.*[^100] declined to follow the *Local 2855*
line of cases. In *Diebold*, civilian employees of the Army brought suit
challenging the Army's decision via the A-76 process to privatize food
service operations at Fort Knox, Kentucky. The district court dismissed
the suit stating that it had no jurisdiction to review the Army's
decision because the issue was committed to agency discretion. The Sixth
Circuit Court of Appeals reversed the district court, holding that
outsourcing cases are reviewable in federal district court because those
cases are essentially cases requiring an accounting, and courts have
long dealt with disputes were one party required an accounting by
another. The court acknowledged the Third Circuit's ruling in *Local
2855,* but held it did not apply because those earlier cases dealt with
a "less formal, and highly discretionary version of Circular A-76, prior
to the Circular's setting out mandatory criteria . . . ."[^101] The
court added that because of those "mandatory criteria" the APA provides
a "compelling policy decision" in favor of judicial review of agency
A-76 determinations.[^102]

The *Diebold* court also determined that the plaintiffs had legal
standing to bring suit. Although the court conceded that Circular A-76
is not a statute and cannot form a basis for standing under section 702
of the APA (which requires plaintiffs' interests be within the "zone of
interests" of a relevant statute), it found the plaintiffs' interests
did fall within the zone of interests of the Office of Federal
Procurement Policy Act Amendments (hereinafter OFPPAA) of 1979.[^103]
The court cited the first section of the OFPPAA, which states
congressional policy is to promote "economy, efficiency and
effectiveness in the procurement of property and services by the
executive branch of the United States Government."[^104] The court
further noted the OFPPAA establishes within the OMB an "Office of
Federal Procurement Policy," whose job is to oversee the implementation
of the efficiency goal of OFPPAA, by contracting out government products
and services to the private sector.[^105] Concluding their analysis, the
court held that since the efficiency goals of OFPPAA are reflected in
Circular A-76, OFPPAA is a "relevant statute" within the meaning of the
APA.[^106] Based on *Diebold*, plaintiffs may now gain standing under
the APA to challenge Circular A-76 outsourcing decisions under this
Act.[^107]

# Analysis 

*Latecoere*[^108] is an effective example of what can happen if bias is
permitted in the A-76 process. Circular A-76 best value source
selections are ripe for bias issues because the personnel involved in
the process, i.e., cost comparison study team, PWS, SSA, SSAC, are
either more likely, or more likely *to be perceived,* as having a
personal interest in the outcome, unlike the typical non-A-76 best value
source selections where government personnel are less likely to have
ties with the private offerors.

*Dynacorp*[^109] and *Redstone*[^110] are important cases for
practitioners as they demonstrate the basic rule that the Government's
MEO and the competitive proposal must be based upon the same
requirements, and that the basis for award must be thoroughly justified
in writing. Thus, it is important not only to avoid protests but labor
disputes as well.

Legal challenges by federal employees may prove to be the most
contentious issues related to introducing best value source selection to
the A-76 process. Before *Diebold*,[^111] the only due process afforded
to federal employees adversely affected by Circular A-76 decisions was
the agency administrative appeal. Now, at least in the Sixth Circuit,
federal employees have standing to challenge A-76 decisions in federal
district court. Undoubtedly, labor unions will subject A-76
determinations that result in the loss of jobs held by unionized federal
employees to the highest scrutiny. Agency administrative appeals and
suits in federal court are likely to rise. Government litigators should
continue to argue the favorable holding of *Local 2855*[^112] in the
remaining circuits.

**VI. Analysis and Recommendations**

The major deficiency of the 1996 Supplement with respect to best value
source selections is its overly broad guidance, which seems to create
more questions than it answers. Presumably, OMB has left the task of
providing detailed guidance to the various federal agencies through
their implementing regulations. Along those lines, I propose the
following. First, the DoD/military department regulations and
instructions which implement Circular A-76 should be amended to require
involvement by legal counsel during all stages of the process, including
the cost comparison study team. Involvement by counsel should include
not only legal advice but written legal reviews of all plans and
documents, including the PWS, Management and Technical Performance
Plans, the in-house cost estimate, and, particularly, the SSA's written
justification for award. Legal counsel should stress to SSAs and SSACs
the importance of fully documenting their actions to create a full
administrative record that reflects well-grounded, reasonable decisions.

Second, A-76 training sessions should be instituted for all personnel
who are to participate in Circular A-76 cost comparisons and
evaluations. This training should be mandatory and should focus on the
changes contained in the 1996 Supplement, as well as other legal issues,
such as the consequences of bias in the process, inaccurate and
incomplete proposal evaluations, failure to develop a proper
administrative record, and other conflicts of interest.[^113]

Third, I recommend the FAR and the 1996 Supplement be amended to
specifically address potential conflicts of interest for all government
personnel involved in the A-76 process. Unfortunately, the recent
amendments to the Procurement Integrity Act by the Clinger-Cohen Act do
not discuss the A-76 process.[^114] However, the new FAR 3.104-3 states:

> Generally, an individual will not be considered to have personally and
> substantially participated in a procurement solely by participating in
> the following activities: . . . (iv) For procurement to be conducted
> under the procedures of OMB Circular A-76, participation of management
> studies, preparation of in-house cost estimates, preparation of the
> "most efficient organization" analysis, and furnishing of data or
> technical support to be used by selection information before the award
> of a Federal agency procurement contract to which the information
> reflects.[^115]

This FAR provision is similar to the language included in the 1996
Supplement which states that the term "procurement official," with
respect to the A-76 process does not include "\[e\]mployees who
participate or provide data to support the development of the various
study elements . . . ."[^116] Essentially, FAR 3.104-3 and the 1996
Supplement exempt much of the A-76 process from the Procurement
Integrity Act.[^117] This is not good policy. In Circular A-76 best
value source selections, involvement in the PWS, the MEO, and Management
and Technical Plans can lead to improper conduct. Individuals
participating in the above listed activities should be treated as having
personally and substantially participated in a procurement in accordance
with the Procurement Integrity Act.

The recommendations listed above should help avoid conflicts of
interest, educate source selection authorities and others involved in
the Circular A-76 process, and result in a better articulation of the
government's evaluations and decisions. Further, it is my belief that
including all individuals involved in the A-76 process under the
Procurement Integrity Act will lead to more professional behavior and
more thoughtful actions.

**VII. Conclusion**

Best value source selection in the Circular A-76 process will
undoubtedly cause some initial difficulty and confusion since no one in
the field has experience comparing in-house activities against private
offerors on the basis of best value. Best value source selection in the
A-76 process has the potential to transform the cost comparison process
into a result-oriented exercise where source selection officials
predetermine the outcome. Legal counsel must guard against this and
ensure that decisions by SSAs are reasonable and fully supported.

Commentators have lauded best value source selection as making good
business sense which will ultimately result in more creative and
flexible alternatives.[^118] Best value source selections in the A-76
process can prove just as successful, although some growing pains may
have to be suffered along the way. When properly conducted, best value
source selection in the A-76 process will result in the government
obtaining higher quality services tailored to its specific needs.

[^1]: *\* Major Lang (B.S., M.S., J.D., Florida State University; LL.M.,
    The Judge Advocate General's School, United States Army) is a
    contract law attorney assigned to the Electronic Systems Center,
    Hanscom Air Force Base, Massachusetts. He is a member of the Florida
    Bar.*

    ^?^ [Office of Management and Budget Circular A-76]{.smallcaps}
    (Aug. 4, 1983) \[hereinafter Circular A-76, or A-76\].

[^2]: *Id,* attach. A, at 7.

[^3]: According to the Government Accounting Office \[hereinafter GAO\],
    the dormant period was due to administrative and legislative
    constraints. In August 1995, the Deputy Secretary of Defense
    initiated a renewed emphasis on the contracting of commercial
    services by chartering a Privatization Integrated Policy Team, which
    had the task of identifying contracting out opportunities. The Team
    is focusing its efforts in six support areas: base support, material
    management, depot maintenance, finance and accounting, education and
    training, and data centers. [General Accounting Office,]{.smallcaps}
    GAO/NSIAD-97-86, [Base Operations: Challenges Confronting DoD as It
    Renews Emphasis on Outsourcing 5]{.smallcaps} (Mar. 11, 1997).

[^4]: *Id*.

[^5]: The Defense Science Board provides objective and independent
    advice on technology and management issues to the Secretary of
    Defense, the Deputy Secretary of Defense, the Under Secretary of
    Defense (Acquisition and Technology), the Chairman of the Joint
    Chiefs of Staff, and the Vice Chairman. It is composed of
    representatives from academia, industry, and research institutions.
    *Hearings on Improving Defense Inventory Management Before the
    Subcomm. on National Security, International Affairs, and Criminal
    Justice of the House Comm. on Gov't Reform and Oversight,* 105^th^
    Cong. (1977) (statement of Dr. Jacques S. Gansler, Vice Chairman,
    Defense Science Board).

[^6]: Richard J. Newman, *Operation Fix-My-Bifocals Or, Why the Pentagon
    Cuts Combat Forces While Saving the PX,* [U.S. News & World
    Rep]{.smallcaps}., Mar. 17, 1997, at 32.

[^7]: It is Air Force policy that 100% of its activities will be
    reviewed for potential contracting out by the year 2003. Air Force
    Policy Directive 38-6, Outsourcing and Privatization ¶ A1.2. (Sep.
    1, 1997) \[hereinafter AFPD 38-6\]. Included within AFPD 38-6 is the
    "Air Force Outsourcing and Privatization Strategic Plan" which,
    *inter alia*, identifies the application of new Air Force
    acquisition practices to outsourcing and privatization as a "major
    challenge" and states "\[g\]iven the expected time and monetary
    savings linked to new approaches to service contracts, acquisition
    streamlining procedures or reform must be aggressively applied Air
    Force-wide for optimum O&P \[outsourcing and privatization\]." *Id*.
    at attach. 4. In 1996, the Air Force conducted 66 cost comparison
    studies at 42 installations. Department of Defense, Department of
    the Air Force, Cost Comparison Studies, 61 Fed. Reg. 53,723 (Oct.
    15, 1996).

[^8]: [Office of Management and Budget Circular A-76, Revised
    Supplemental Handbook, Performance of Commercial
    Activities]{.smallcaps} (Mar. 1996) \[hereinafter 1996 Supplement\].
    Circular A-76 provides broad guidance on A-76 procedures whereas the
    1996 Supplement provides very detailed, practical guidance.

[^9]: Deficit Reduction Act of 1984, Pub. L. No. 98-369, 98 Stat. 1175
    (1984). CICA requires that each solicitation clearly identify all
    evaluation factors, their relative importance, and that those
    factors be adhered to in making the award decision. *Id*. National
    Defense Authorization Act for Fiscal Year 1987, Pub. L. No. 99-661,
    § 924(a)(2), 100 Stat. 3933 (1987) added a section to CICA requiring
    that solicitations for competitive proposals clearly establish the
    "relative importance of the quality of the services to be provided
    (including technical capability, management capability, and prior
    experience of the offeror)." *Id.* The purpose of the amendment was
    to "specifically recognize the importance of quality as a factor in
    professional and technical services procurement." [S. Rep.
    No]{.smallcaps}. 99-331, at 266 (1986), *reprinted in* 1986
    U.S.C.C.A.N. 6413, 6462.

[^10]: Circular A-76, *supra* note 1, ¶ 5c.

[^11]: 1996 Supplement, *supra* note 8, at iii.

[^12]: *Id*.

[^13]: *Id.*

[^14]: *Id*.

[^15]: Circular A-76, *supra* note 1, ¶ 7. However, small commercial
    activities which have ten or fewer full-time employees may be
    converted to or from in-house performance without the need for a
    cost comparison. 1996 Supplement, *supra* note 8, at pt. I, ch. 1, ¶
    C.

[^16]: In order to accomplish this task, federal agencies have developed
    commercial activities programs to implement Circular A-76. *See,
    e.g*., Air Force Instruction 38-203, Commercial Activities Program
    (Apr. 26, 1994) \[hereinafter AFI 38-203\].

[^17]: 1996 Supplement, *supra* note 8, at pt. I, ch. 1, ¶ B.

[^18]: The 1996 Supplement defines commercial activity as "the process
    resulting in a product or service that is or could be obtained from
    a private sector source. Agency missions may be accomplished through
    commercial facilities and resources, Government facilities and
    resources, or mixes thereof, depending upon the product, service,
    type of mission and the equipment required." *Id*. at app. 1.

[^19]: However, in time of war, Circular A-76 does not apply to the DoD.
    Circular A-76, *supra* note 1, ¶ 7. In addition, some commercial
    activities staffed by military members are exempt from the A-76
    process under the "national defense exemption" if the activity is:
    (1) essential for training or experience in required military
    skills; (2) needed to provide appropriate work assignments for a
    rotation overseas or sea-to-shore assignment, or (3) necessary to
    provide career progression to needed military skills levels. Dep't
    of Defense Instruction 4100.33, Commercial Activities Program
    Procedures[, ¶ E]{.smallcaps} (9 Sep. 1985) \[hereinafter DODI
    4100.33\].

[^20]: Policy Letter on Inherently Governmental Functions, 57 Fed. Reg.
    45,096 (Sep. 30, 1992). This policy letter is included as an
    appendix to the 1996 Supplement. 1996 Supplement, *supra* note 8, at
    app. 5.

[^21]: Policy Letter on Inherently Governmental Functions, 57 Fed. Reg.
    at 45,100.

[^22]: The policy letter provides:

    > An inherently governmental function involves, among other things,
    > the interpretation and execution of laws of the United States so
    > as to: (a) bind the United States to take or not to take some
    > action by contract, policy, regulation, authorization, order or
    > otherwise; (b) determine, protect, and advance its economic,
    > political, territorial, property, or other interests by military
    > or diplomatic action, civil or judicial proceedings, contract
    > management, or otherwise; (c) significantly affect the life,
    > liberty, or property of private persons; (d) commission, appoint,
    > direct, or control officers or employees of the United States; or
    > (e) exert ultimate control over the acquisition, use, or
    > disposition of the property, real or personal, tangible or
    > intangible, of the United States, including the collection,
    > control, or disbursement of appropriated and other Federal funds.
    > Inherently governmental functions do not normally include
    > gathering information for or
    >
    > providing advice, opinions, recommendations, or ideas to
    > Government officials.

    *Id.*

[^23]: *Id*. at app. A.

[^24]: In addition to the national defense exemption, commercial
    activities at government owned hospitals or health care facilities
    that are necessary to maintain the quality of direct patient care
    are also exempt. Further, whenever the acquisition planning process
    reveals that there is no satisfactory commercial source available to
    compete against a commercial activity subject to the A-76 process,
    that activity is exempt from Circular A-76. 1996 Supplement, *supra*
    note 8, at pt. I, ch. 1, ¶ G.

[^25]: A performance work statement is defined as "a statement of the
    technical, functional and performance characteristics of the work to
    be performed, identifies essential functions to be performed,
    determines performance factors, including the location of the work,
    the units of the work, the quantity of work units, and the quality
    and timeliness of the work units." *Id*. at app. 1.

[^26]: *Id*. at pt. I, ch. 3, ¶ E.

[^27]: *Id.*

[^28]: *Id*. at pt. II.

[^29]: *Id*. at pt. II, ch. 3, ¶ G.

[^30]: [Office of Management and Budget Circular A-76, Supplemental
    Handbook, Performance of Commercial Activities]{.smallcaps} (Aug.
    1983) \[hereinafter 1983 Supplement\]. This is the first supplement
    to Circular A-76, *supra* note 1. The 1996 Supplement, *supra* note
    8, substantially changed the 1983 supplement.

[^31]: 1996 Supplement, *supra* note 8, at pt. II.

[^32]: *Id*. at pt. II, ch. 3, ¶ A.

[^33]: *Id.* at pt. II, ch. 3, ¶ E.

[^34]: *Id.* at pt. II, ch. 3, ¶ G.

[^35]: A full-time equivalent is normally comparable to one full-time
    employee. AFPD 38-6, *supra* note 7, at attach. 1.

[^36]: Air Force Instruction 65-504, Independent Review of Commercial
    Activity Cost Comparisons ¶¶ 6-7 (Feb. 25, 1994) \[hereinafter AFI
    65-504\].

[^37]: 1996 Supplement, *supra* note 8, pt. II, ch. 4, ¶ A.

[^38]: *Id.*

[^39]: *Id*. at pt. I, ch. 3. ¶ H (emphasis added).

[^40]: [Gen. Servs. Admin. Et. Al., Fed. Acquisition Reg.]{.smallcaps}
    part 15.605(d)(1) (Apr. 1, 1984) \[hereinafter FAR\].

[^41]: [Dep't of Air Force, Air Force Fed. Acquisition Reg.
    Supp]{.smallcaps}. app. AA-103 (May 1, 1996) \[hereinafter AFFARS\].

[^42]: [Ralph C. Nash, Jr. & John Cibinic, Jr., Competitive Negotiation:
    The Source Selection Process]{.smallcaps} 9 (1993).

[^43]: Competition in Contracting Act, 10 U.S.C. § 2305(a)(2)(B)(ii)(I)
    (1994).

[^44]: FAR, *supra* note 40, at 15.605.

[^45]: In contracts of \$1 million or above. *See* Letter from Eleanor
    R. Spector, Director, Defense Procurement, to Directors of Defense
    Agencies, et al., (Dec 20, 1996), *reprinted in* FAR, *supra* note
    40, at 15.605 (authorizes deviation from the requirements of FAR
    part 15.605(b)(1)(ii)).

[^46]: FAR, *supra* note 40, at 15.605(a).

[^47]: *Id.* at 15.605(d)(1).

[^48]: *See, e.g.,* AFFARS *supra* note 41, at app. AA-304, which
    discusses color ratings for major acquisitions.

[^49]: Unless the solicitation stated that award could be made on the
    initial proposals without discussion. FAR, *supra* note 40, at
    15.609.

[^50]: Prohibited auction techniques include:

    > \(i\) Indicating to an offeror a cost or price that it must meet
    > to obtain further consideration; (ii) Advising an offeror of its
    > price standing relative to another offeror (however, it is
    > permissible to inform an offeror that its cost or price is
    > considered by the Government to be too high or unrealistic); and
    > (iii) Otherwise furnishing information about other offerors'
    > prices.

[^51]: FAR, *supra* note 40, at 15.610(e)(2).

    ^?^ *Id*.

[^52]: FAR, *supra* note 40, at 15.611.

[^53]: FAR, *supra* note 40, at 15.611(d).

[^54]: Policy Letter on Service Contracting, 56 Fed. Reg. 15,110, 15,113
    (Apr. 15, 1991).

[^55]: 1996 Supplement, *supra* note 8, at pt. I, ch. 3, ¶ C.

[^56]: Policy Letter on Service Contracting, 56 Fed. Reg. at 15,113.

[^57]: Military departments are required to identify their commercial
    activities, and the results of any reviews and direct conversions
    they have accomplished, in a yearly inventory supplied to the DoD.
    DODI 4100.33, *supra* note 19, at ¶ E.

[^58]: Military departments shall not proceed with any A-76
    cost-comparison involving more than 45 DoD personnel unless Congress
    is notified. In addition, all affected DoD employees must be
    consulted at least monthly during the development of the PWS and the
    management study. *Id.*

[^59]: 1996 Supplement, *supra* note 8, at pt. I, ch. 3, ¶ B. The 1996
    Supplement recommends individuals with experience in "management
    analysis, position classification, work measurement, value
    engineering, . . . industrial engineering, cost analysis,
    procurement and the technical aspects of the activity under study."
    *Id*.

[^60]: Members of the team who have a financial interest in the outcome
    of the cost comparison risk violating the Ethics in Government Act
    of 1978, 18 U.S.C. § 208 (1994). *See also* Christopher N.
    Patterson, *The Commercial Activities ProcessLessons Learned*, [Army
    Law]{.smallcaps}., Dec. 1989, at 11.

[^61]: 1996 Supplement, *supra* note 8, pt. 1, ch. 3, at ¶ C.

[^62]: *Id.*

[^63]: *Id.*

[^64]: *Id*. at pt. I, ch. 3, ¶ H.

[^65]: *Id*. at pt. I, ch. 3 (private offerors are also required to
    submit Technical Performance Plans in negotiated procurements).

[^66]: *Id.* at pt. 1, ch. 3, ¶ H.

[^67]: *Id*. at pt. I, ch. 3, ¶ I.

[^68]: AFI 65-504, *supra* note 36, allows the IRO to be from the same
    wing/installation as the activity being studied and those preparing
    the cost comparison. *Id.* ¶ 7.

[^69]: 1996 Supplement, *supra* note 8, at pt. I, ch. 3, ¶ I.

[^70]: *Id*. at pt. I, ch. 3, ¶ H.

[^71]: FAR, *supra* note 40, at 15.612. *See also,* FAR, *supra* note
    40, part 7.304(d) for further guidance on the conduct of source
    selections.

[^72]: 1996 Supplement, *supra* note 8, pt. I, ch. 3, ¶ H*.*

[^73]: *Id.*

[^74]: *Id.*

[^75]: *Id.*

[^76]: *Id*.

[^77]: *Id.*

[^78]: *See supra* notes 30-34 and accompanying text.

[^79]: Office of Federal Procurement Policy Act, 10 U.S.C. § 423 (1994).

[^80]: FAR, *supra* note 40, at 15.610. Improper disclosure of source
    selection information can result in civil and criminal penalties, as
    well as administrative remedies. 41 U.S.C. § 423(e) (1994).

[^81]: Dynalectron Corp., B-216201, 85-1 CPD ¶ 525, at 3, (May 10,
    1985). *See also* Inter-Con Security Systems, Inc., B-257360.3, 94-2
    CPD ¶ 187, at 6 (Nov. 15, 1994), where the Comptroller General held
    "\[o\]ur review of agency decisions to retain services in-house
    instead of contracting for them is solely to ascertain whether the
    agency followed the announced 'ground rules' for the cost
    comparison." *Id.* One could argue this holding conflicts with
    *Dynalectron*; however, *Inter-Con Security* dealt merely with
    allegedly unclear contract requirements, not a matter where the
    competitive procurement system was threatened, as was the case in
    *Dynalectron*.

[^82]: Risking violation of the Ethics in Government Act of 1978, 18
    U.S.C. § 208 (1994).

[^83]: Deficit Reduction Act of 1984, 31 U.S.C. § 3551(1) (1994).

[^84]: Administrative Dispute Resolution Act of 1996, Pub. L. No.
    104-320, § 12, 110 Stat. 3870, 3874 (1996).

[^85]: *Id.*

[^86]: U.S. Dep't of Navy v. Latecoere Int'l, Inc., 19 F.3d 1342 (11th
    Cir. 1994).

[^87]: *Id.* at 1356.

[^88]: Dynacorp, B-233727.2, 89-1 CPD ¶ 543 (Jun. 9, 1989). *See also*
    [R]{.smallcaps}edstone Technical Services, B-259222, 95-1 CPD ¶ 181
    (Mar. 17, 1995), where the Comptroller General stated:

    > In best value procurements like these, where the contracting
    > officer awards to higher cost, higher technically rated offerors,
    > the award decisions must be supported by a rational explanation of
    > why the technical superiority of the higher-cost offerors warrants
    > the additional costs involved, even where, as in these cases, cost
    > is weighted less heavily than the technical and management areas
    > combined.

    Redstone, ¶ 181 at 9.

[^89]: The protester had the lowest price of the eight private bidders
    but was \$620,871 over the in-house bid.

[^90]: *Id*. at 4.

[^91]: 1983 Supplement, *supra* note 30, at pt. 1, ch. 2, para I.

[^92]: 1996 Supplement, *supra* note 8, at pt. I, ch. 3, ¶ K. The appeal
    authority is appointed by the individual given authority by the
    agency head to implement A-76.

    > The individual(s) selected must be (a) two levels above the
    > official who signed the waiver, in the case of a cost-comparison
    > waiver . . . or (b) independent of the activity under review or at
    > least two organizational levels above the official who certified
    > the Government's Management Plan and MEO, in the case of a
    > tentative cost comparison plan.

    *Id.*

[^93]: Eligible appellants consist of:

    > a\. Federal employees (or their representatives) and existing
    > Federal contractors affected by a tentative decision to waive
    > cost-comparison;
    >
    > b\. Federal employees (or their representatives) and contractors
    > that have submitted formal bids or offers who would be affected by
    > a tentative decision to convert to or from in-house, contract or
    > ISSA performance as a result of a cost comparison; or
    >
    > c\. Agencies that have submitted formal offers to compete for the
    > right to provide services through ISSAs.

    *Id.*

[^94]: *Id.*

[^95]: *See* American Federation of Government Employees v. Hoffman, 427
    F. Supp 1048, 1082 (N.D. Ala. 1976) (holding that Circular A-76 and
    the Army regulations which implement it are essentially managerial
    and policy directives governing the procurement of goods and
    services, thus provide no right of action to Army civil service
    employees suffering a reduction in force due to an adverse cost
    comparison study); American Federation of Government Employees Local
    1668 v. Dunn, 561 F.2d 1310, 1315 (9th Cir. 1977) (holding that the
    method by which the Air Force conducts its cost comparison studies
    is solely within the discretion of that department); *cf*. Perkins
    v. Rumsfeld, 577 F.2d 366, 368 (6th Cir. 1978) (holding that "the
    authority to transfer functions from one military establishment to
    another is vested in the Secretary of Defense by Congress . . . . In
    exercising this authority the Secretary is performing a
    discretionary and not a ministerial function. The Courts have no
    jurisdiction to interfere.").

[^96]: Local 2855 v. United States, 602 F.2d 574 (3d Cir. 1979).

[^97]: Administrative Procedures Act, 5 U.S.C. §§ 701-706 (1994).
    Section 702 of the Administrative Procedures Act states "\[a\]
    person suffering legal wrong because of agency action, or adversely
    affected or aggrieved by agency action within the meaning of a
    *relevant statute*, is entitled to judicial review thereof" unless,
    according to § 701(a), the statute precludes judicial review or the
    "agency action is committed to agency discretion by law." 5 U.S.C. §
    702 (emphasis added).

[^98]: 602 F.2d at 583.

[^99]: *Id.* at 582-83. *See also* Hawaii Federal Lodge No. 1998, Int'l
    Assoc. of Machinists and Aerospace Workers, B-214104, 84-1 CPD ¶ 109
    (Feb. 7, 1984) (GAO review of Circular A-76 determinations \"does
    not extend to nonbidders such as federal employees or union locals
    that represent federal employees.\"); Nat'l Assoc. of Gov't
    Employees, Local R5-87, B-212735.2, 84-1 CPD ¶ 37 (Dec. 29, 1983).

[^100]: Diebold v. United States, 947 F.2d 787 (6th Cir. 1991).

[^101]: *Id*. at 790.

[^102]: *Id*.

[^103]: Office of Federal Procurement Policy Act Amendments of 1979,
    Pub. L. No. 96-83, 93 Stat. 648, (codified as amended at 41 U.S.C.
    §§ 401-430 (1989).

[^104]: 947 F.2d at 796.

[^105]: *Id*.

[^106]: *Id*. at 810-11.

[^107]: *See also* National Air Traffic Controllers Assoc. v. Pena*,*
    No. 95-3016, 1996 U.S. app. LEXIS 8258 (6th Cir. Mar. 7, 1996) The
    court reaffirmed its analysis in *Diebold* and added, "\[o\]ur
    decision is in accord with the long line of Supreme Court precedent
    which, prior to *Air Courier Conference of America*, has never
    dismissed a case for lack of standing," *Id* at \*18 (citing Air
    Courier Conference of Am., 498 U.S. 517 (1991)).

[^108]: U.S. Dep't of Navy v. Latecoere Int'l, Inc., 19 F.3d 1342
    (11^th^ Cir. 1994).

[^109]: Dynacorp, B-233727.2, 89-1 CPD ¶ 543 (Jun. 9, 1989).

[^110]: Redstone Technical Services, B-259222, 95-1 CPD ¶ 181 (Mar. 17,
    1995).

[^111]: Diebold v. United States, 947 F.2d 787 (6^th^ Cir. 1991).

[^112]: Local 2855 v. United States, 602 F.2d 574 (3d Cir. 1979).

[^113]: This training could be part of the mandatory training and
    education program now required for those in the acquisition career
    path. *See* National Defense Authorization Act for Fiscal Year 1996,
    Pub. L. No. 104-106, § 4307, 110 Stat. 666 (1996).

[^114]: Office of Federal Procurement Policy Act Amendments of 1988 § 27
    *amending the* Procurement Integrity Act, *as amended by the*
    Clinger-Cohen Act, Pub. L. No. 104-106, §§ 4001-4402, 110 Stat. 186,
    659-665 (1996).

[^115]: Dep't of Defense Federal Acquistion Regulation, Procurement
    Integrity, 62 Fed. Reg. 226, 228 (Jan. 2, 1997).

[^116]: 1996 Supplement, *supra* note 8, at pt. I, ch. 3, ¶ B.

[^117]: FAR, *supra* note 40, at 3.104-3.

[^118]: Christopher A. Barnes, *New Improved Awards Without Discussion
    or Foreign Competition*, 20:4 [Pub. Cont. L.J]{.smallcaps}. 532, 554
    (1991).