Contracting practitioners go through their early careers excited about learning the trade, but much like myself, they inevitably pick up information that often has little or no basis in fact. Thus begins the creation of a myth.
Since we are in a regulatory environment, myths originate from those who do not fully grasp or understand the foundation, concept, or facts associated with the regulation, policy, or practice. Some myths are remnants of decades-old regulations or practices that have since been changed. Those that are unwilling to take the time to do the necessary research to get the facts simply compound the myth.
In the government world of acquisition, myths can significantly impact effectiveness, stifle creativity, and lead to bad decision-making. So let’s dig up and dispel as many as we can.
TRUTH OR MYTH?
During the early stages of an acquisition (before the solicitation is issued), the Federal Acquisition Regulation (FAR) is clear in advising contracting officers that when communicating with offerors or potential offerors, all must be treated equally to help ensure that a protest will not be filed and that no one firm is being treated unfairly.
This myth is one that has been around for decades. Its origin is probably loosely based on many a mentors’ attempts to communicate to junior practitioners the importance of being fair when dealing with industry.
Note that the term equally is highlighted above. As you will see in the information provided below, the use of a single term can have significant implications.
Many contracting professionals are associated with organizations that are reluctant to fully and openly engage potential offerors or allow technical staff to conduct market research that places members in a position of having one-on-one dialogue with one or more potential offerors.
The reason is pretty much centered on a fear of a protest based on what an untrained individual may communicate to industry. After all, how many of us remember getting trained or getting our hands on guidance documents that taught us how to engage potential offerors or what could or could not be shared with industry? This type of training does not exist. However, the knowledge is out there. Let’s explore some of it.
In issuing the 1997 FAR 15 rewrite, the FAR Council also revised other FAR provisions.
For instance, the October 1997 FAC Summary of FAR 15 Changes stated, in part:
This final rule reengineers the processes used to contract by negotiation, with the intent of reducing the resources necessary for source selection and reducing time to contract award. The goals of the FAR Part 15 Rewrite are to ensure that the Government, when contracting by negotiation, receives the best value, while ensuring the fair treatment of offerors. The final rule reengineers the acquisition process in the current FAR and incorporates changes to the proposed rule by:
– Supporting more open exchanges between the Government and industry, allowing industry to better understand the requirement and the Government to better understand industry proposals; . . .
Additionally, the FAR 1-102-2(c)(2) and (3) rewrites were intended to modify old concepts and introduce new policy. The last sentence in subparagraph (3) was intended to communicate that it is impossible to treat “all” potential offerors or contractors the same. The expectation is that the contracting practitioner will use good judgement in dealing with industry.
(c) Conduct business with integrity, fairness, and openness. . .
(2) To achieve efficient operations, the System must shift its focus from “risk avoidance” to one of “risk management.” The cost to the taxpayer of attempting to eliminate all risk is prohibitive. The Executive Branch will accept and manage the risk associated with empowering local procurement officials to take independent action based on their professional judgment.
(3) The Government shall exercise discretion, use sound business judgment, and comply with applicable laws and regulations in dealing with contractors and prospective contractors. All contractors and prospective contractors shall be treated fairly and impartially but need not be treated the same.
The Office of Federal Procurement Policy Memo dated February 2, 2011, Subject: “Myth Busting”: Addressing Misconceptions to Improve Communication with Industry during the Acquisition Process, reads, in part:
Prior to issuance of the solicitation, government officials—including the program manager, users, or contracting officer—may meet with potential offerors to exchange general information and conduct market research related to an acquisition. In fact, the FAR, in Part 15, encourages exchanges of information with interested parties during the solicitation process, ending with the receipt of proposals.
There is no requirement that the meetings include all possible offerors, nor is there a prohibition on one-on-one meetings. Any information that is shared in a meeting that could directly affect proposal preparation must be shared in a timely manner with all potential offerors to avoid providing any offeror with an unfair advantage (FAR 15.201(f)).
The following is a link to a Naval postgraduate thesis that will provide you with invaluable insight into many of today’s FAR requirements, concepts, and practices.
The FAR Part 15 Rewrite Policy and Its Impact on Full and Open Competition: www.dtic.mil/dtic/tr/fulltext/u2/a349810.pdf.