The Federal Acquisition Regulation (FAR) is the driver of federal acquisitions, encouraging early contact of buyers and sellers through formal propositions to contracting. The acquisition cycle follows a prescriptive process though flexibility is allowed.
As the largest buyer in the world, the US federal government is wise to encourage sellers to better understand the government’s requirements, just as it is wise for the government to understand what sellers have to offer. Given the volume of dollars exchanging hands and in the interest of fairness to all parties, there are rules and regulations governing the exchange of information and the formal submission of bids, as well as post-award activities. These rules are written in considerable detail in the Federal Acquisition Regulation handbook, approximately 1,891 pages, originally published April 1984, amended as required. All federal departments and agencies are covered except for the FAA and the US Mint, both exempt although they routinely follow the FAR.
The Truth About Government-Private Sector Collaboration
My experience dealing with federal government information technology acquisitions is founded on three plus decades working with the government as a contractor. I have observed varying degrees of conformity to the latitudes provided by the FAR with overall pendulum motion presently swinging towards risk avoidance, often accompanied by the overzealous guarding of information exchange, perhaps in violation of the FAR itself. Consider FAR 15.201 — Exchanges with industry before receipt of proposals. Per the FAR, “(a) Exchanges of information among all interested parties, from the earliest identification of a requirement through receipt of proposals, are encouraged. (b) The purpose of exchanging information is to improve the understanding of Government requirements and industry capabilities, thereby allowing potential offerors to judge whether or how they can satisfy the Government’s requirements, and enhancing the Government’s ability to obtain quality supplies and services … and increase efficiency in proposal preparation, proposal evaluation, negotiation, and contract award. (c) Agencies are encouraged to promote early exchanges of information about future acquisitions. An early exchange of information among industry and the program manager, contracting officer, and other participants in the acquisition process can identify and resolve concerns regarding the acquisition strategy, including proposed contract type, terms and conditions, and acquisition planning schedules; the feasibility of the requirement, including performance requirements, statements of work, and data requirements; the suitability of the proposal instructions and evaluation criteria, including the approach for assessing past performance information.”
Note the title of FAR 15.201 – Exchanges with industry before receipt of proposals. The intent cannot be called out any clearer – exchanges prior to receipt of proposals. In actuality 15.201 (a) states “…through receipt of proposals.” FAR 15.201 does not state after an RFI or after a DRFP or even up to the distribution of an RFP. It explicitly states exchanges with industry at an implied detailed level are encouraged “through receipt of proposals.”
FAR 15.201 goes on to state there are many opportunities for an exchange from industry conferences, public hearings, market research, and pre-solicitation notices to pre-proposal conferences and one-on-one meetings with potential offerors. No doubt the government headlines a varying portion of these forums though some are hardly exchanges and one-on-one meetings are rare once an acquisition begins in earnest. Take for example Industry Days. These events are primarily one-way communications, not exchanges sought by the FAR, as attendees ask no more than basic questions so as to not reveal their strategies through information inferred in a question. Take another example – draft RFPs. Is there a belief that an exchange, as suggested by the FAR, occurs? Look at the exact language in 15.201 (b): “exchanging information is to improve the understanding of Government requirements….” What happens with a draft RFP is the government most often shuts the doors to verbal communications and issues a document (DRFP) and requests written feedback. Communications often stop there. The government does its internal dance, decides what to do, then configures the RFP as necessary and releases it. Are concerns between the parties resolved through this type of communication? What about draft RFPs where major sections of an acquisition are often omitted, such as Section M, Evaluation Criteria? This is contrary to 15.201 (c) which states “Agencies are encouraged to promote early exchanges of information about … evaluation criteria.” Often evaluation criteria are not known until formal release of the RFP, and even then the value of the criteria is often not known as cost becomes a complicated evaluation factor depending on technical scoring where often the value of the evaluation criteria is not known until an award is made.
I believe, just as those in government believe, the FAR is the reference document presenting what you can and cannot do relative to an acquisition. These are the rules and guidelines to follow. I suggest let’s do just that. Let’s maintain open communications as stated in FAR 15.201 (a) “through receipt of proposals.
The bottom line is that the FAR can be friend or foe, depending on how it is interpreted. It should always be used in a manner that drives “good government.” To do otherwise is to go against the intent of the FAR itself. And let us not forget, good government must be defined from the perspective of the government.
Stay tuned for upcoming posts on each skill/attribute of a bonafide Business Development Director provided by Bob Lam. Bob is the principal and founder of Bob Lam Solutions and is affiliated with GovFlex.