FedSubK Feature: The Acquisition Lifecycle of Service Contracts - Phase 2 Contract Formation and Source Selection
Updated: May 4, 2024
This month we continue with an overview of the second phase of the acquisition lifecycle for Federal service contracts; Contract Formation and Source Selection (or “Award” Phase). (NOTE: If you missed last month, you can find Part 1 here.)
We will talk about each subactivity in this phase but first, let’s remind everyone of the lifecycle of a typical Federal services contract valued over the Simplified Acquisition Threshold (or “SAT,” presently $250,000).
Figure 1 – Acquisition Lifecycle
Contract Formation & Source Selection (Award)
The Contract Formation and Source Selection (Award) phase begins at the point when Acquisition Planning is completed, and the method of procurement has been established. Tasks in this phase are shown below.
Figure 2 – Steps in the Contract Formation & Source Selection (Award) Phase
Legend: I = Integrated Project Team, P = Project Management Office / Requestor, and A = Acquisition Office
These tasks will culminate in an awarded contract (or contracts) and a path that is free of obstacles for the awardee to start contract performance.
Let’s go over a few key tasks in this phase and their impacts on you, the potential offeror.
Pre-Solicitation Notice (“Notice of Proposed Contract Action” or “Advance Notice”) (FAR Subpart 5.203)
Agencies must publish a Pre-Solicitation Notice in the Contract Opportunities section of SAM.gov at least 15 calendar days before the solicitation is issued, or before issuing a solicitation or proposed contract action the Government intends to solicit and negotiate with only one source (see FAR Subpart 6.302-1).
This notice period may be shorter than 15 calendar days, at the discretion of the Contracting Officer (CO/KO) when acquiring commercial products or commercial services. The period can also be shorter when the CO/KO uses the combined synopsis and solicitation procedure outlined in FAR Subpart 12.603. (Note: See the FedSubK Feature “Navigating Federal Contract Opportunity Notices” for more info.)
The Pre-Solicitation Notice is important because it–
- Gives a summary of the upcoming project,
- Discloses the acquisition strategy to be used in terms of competition and contract type,
- Provides the estimated date for issuance of the solicitation to the public and the response time, and
- Outlines other special instructions such as pre-proposal conferences planned.
From this notice alone, many businesses can make their go/no-go decisions on whether to propose.
For the Government, this 15-day period is crunch time. It’s when final approvals are obtained to release the documents to the public. If something comes up (and it always seems to), the 15 days may be extended for any length of time by the Government without further notice to the public. However, it is always in the Government’s best interest to ensure its competition pool knows when the solicitation will be published. The solicitation issuance date in the notice is an estimated release date.
For sole source actions offered to the Small Business Administration (SBA) 8(a) Business Development Program, a pre-solicitation notice is NOT required.
Solicitation Issuance
Once at least 15 days have passed, the solicitation will be uploaded in the GPE under a separate notice. This notice will contain a synopsis of the project along with solicitation documents and all attachments made available for download by potential offerors. Now the real fun begins because the clock is ticking!
(See FedSubK Snapshot “Finding Your Way Around a Federal Solicitation” for more info about where to find solicitation response times and instructions to ask questions, seek clarification, and how to format and submit proposals.)
You’ve got a lot of moving parts once the RFP goes “live.” Here are some key things, from a CO/KO perspective, that offerors need to keep in mind as they develop their proposal.
#1 - Know the Rules for Government Exchanges with Industry Before Receipt of Proposals (FAR Subpart 15.201)
Exchanges of information between the Government and Industry are encouraged. However, any exchange must be consistent with the procurement integrity requirements of FAR Subpart 3.104. This includes not only exchanges but also disclosure, protection, and marking of contractor proposal information and source selection information.
Exchanges after issuance of the solicitation but before receipt of proposals are used by the Government to improve potential offerors’ understanding of requirements and allow them the chance to determine their ability to meet those requirements. These exchanges often take the form of questions from industry on RFP documents, answers in response from the Government, and pre-proposal conferences. The CO/KO oversees and controls these exchanges.
Draft RFPs for industry input are considered part of the market research process under acquisition planning.
#2 - Watch for Amendments! (FAR Subpart 15.206)
Changes to the RFP documents are made by formal amendment to the solicitation before the established time and date for receipt of proposals. Amendments must provide sufficient time for potential offerors to digest changes and update proposals. Each amendment will also be announced with its own notice and published in the GPE. Amendment notices will provide a synopsis of changes made.
Amendments can also be issued after the close of receipt of offers/proposals. However, per subparagraph (e) of the referenced FAR Subpart, if the CO/KO determines that such an amendment “...is so substantial as to exceed what prospective offerors reasonably could have anticipated so that additional sources likely would have submitted offers had the substance of the amendment been known to them”, the CO/KO must cancel the original solicitation and issue a new one, regardless of the stage of the acquisition.
An oral notice may also be used when time is of the essence, which is then formalized by a written amendment issued by the CO/KO.
The worst possible thing is to finish a proposal and realize you haven’t taken an amendment into account. Failure to acknowledge an amendment can be grounds to eliminate your proposal from consideration right out of the gate!
#3 - Understand the Basics of Different Source Selection Techniques (FAR Subpart 15.1)
Techniques for the selection of sources under competitive procurements fall within a range called the Best Value Continuum. This range equates to the Government’s perceived risk of unsuccessful performance which is then translated into the prioritization of technical factors and cost or price factors and their individual and collective importance.
An agency may use only one or a combination of the Tradeoff Process and the Lowest Price Technically Acceptable Process to arrive at the determination of the best value for the Government. The characteristics of each are found in the table below.
Tradeoff Process
- Allows selection of other than the lowest-priced or highest technically rated offeror using tradeoffs between technical superiority and cost or price, as described in the solicitation.
- The technical factors and significant subfactors that affect contract award and their relative importance are disclosed in the RFP.
- The RFP also includes a statement whether all evaluation factor factors other than cost or price (aka “technical factors” when combined, are–
- Significantly more important than cost or price,
- Approximately equal to cost or price, or
- Significantly less important than cost or price.
- Past performance is a required evaluation factor.
- Factors and significant subfactors establish a list of criteria describing required or desired skills and experience against which the proposal is subjectively evaluated.
- Technical ratings are subjective and use a rating scale of adjectival descriptors, colors, numerical weights, or original rankings. Cost or Price is evaluated, not rated.
- Provides the greatest flexibility for the Government to achieve the best balance of technical and cost/price acceptability.
- Any perceived benefits of a higher-priced proposal require supporting documentation to quantify the payment of any additional cost in terms of specific benefits to the Government.
- The point-by-point tradeoff decision is documented and reviewed as required by FAR, any agency FAR supplement, and agency policy.
Lowest Price Technically Acceptable Process
- Requires selection of the technically acceptable proposal with the lowest evaluated price
- Technical factors are not ranked by relative importance.
- Failure of a proposal to meet the minimum technical acceptability standard of any technical factor or subfactor automatically eliminates the proposal from further consideration.
- Past performance is not a required evaluation factor.
- Factors and significant subfactors establish objective thresholds of technical acceptability (measures) against which the proposal is evaluated.
- Technical ratings are objective and use a go/no-go, pass/fail, or acceptable/unacceptable scale. Cost or Price is evaluated, not rated.
- Provides the ability to achieve a minimum technical acceptability level on all technical factors and significant subfactors and achieve the lowest evaluated price.
- Only the lowest-priced proposal of the proposals found to be technically acceptable is considered for award.
- Tradeoffs are not allowed.
#4 - Award Without Discussions or Competitive Range? (FAR Subpart 15.306(c))
The Government has a choice. It can choose to make a contract award decision based solely on initial proposals and not engage with offerors, or it can establish a competitive range to conduct discussions (aka, negotiations) before an award is made.
What’s a competitive range? Based on the ratings of each proposal against all evaluation criteria, the CO/KO will establish a competitive range comprised of all of the most highly rated proposals; those most likely to receive the contract award. It’s a down-selection. The competitive range can be further reduced for purposes of efficiency when documented with the rationale why and the solicitation so states.
The solicitation will disclose the Government’s choice. This choice is important. An award without discussions means you get one shot – the first shot – to get your proposal right. There are no fixes or changes allowed later. However, even when the Government chooses “award without discussions,” it always reserves the right to open discussions with offerors if it is in the Government’s best interest to do so. But don’t rely on it happening. If the Government can avoid discussions before the award, it will; trust me on that. It saves weeks of work and documentation when discussions are avoided.
Now that we understand the processes that can be used in source selection, let’s talk about how it gets accomplished.
Source Selection Evaluation Board (SSEB). Before the solicitation ever hit the street, the Source Selection Evaluation Board (SSEB) members were chosen. Who are those people? Let’s talk about that and what they do in the evaluation in general.
Technical Evaluation Board (TEB). Comprised of technical and subject matter experts familiar with the work to be performed who are trained in the technical evaluation processes to be used, and supported by the CO/KO and the Small Business Specialist, who assist when subcontract performance is included as an evaluation factor. The TEB chair is most often the project lead who will oversee the daily work during contract performance AND will likely be assigned as the Contracting Officer’s Representative (COR). (See FedSubK Feature: “Hate the Game, Not the Players: Know the Roles in Federal Contracting” for more about the roles in Federal contracting.)
(HINT: If the Government held a pre-proposal conference, members of the TEB were likely involved in the Government presentations. You likely introduced yourself or engaged in chit-chat. But don’t think you can ask, and Government personnel will tell you they are on the TEB; they are required to sign a Non-Disclosure Agreement to participate. If someone tells you they are a TEB member, report it to the CO/KO immediately.)
The technical evaluation is completed fully independent of the price evaluation. The TEB membership is provided only with a copy of those portions of the proposals that address the technical factors only; the TEB is not privy to the costs or prices proposed at any time during the evaluation. Each member of the TEB first completes an independent individual evaluation of each proposal. Then the TEB meets to agree on a single consensus evaluation as a group; there is no voting.
- Tradeoff Process – TEB members document in detail the strengths, weaknesses, significant weaknesses, and deficiencies of each proposal against the evaluation criteria disclosed in the solicitation and apply a rating.
- LPTA Process – After comparing the technical proposal to the measure for each factor and significant subfactor an objective rating is given (i.e., pass/fail).
The output of the TEB is an evaluation report of initial proposals supported by individual and consensus rating sheets for each technical proposal along with a list of any questions the TEB may have for offerors about their technical proposal.
Price Evaluation. Price evaluation is typically performed by the CO/KO with support from other subject matter experts such as a cost estimator, data analyst, auditor (and audit report), or cost/price analyst. Price is not rated but evaluated according to the solicitation. That evaluation is most often based on competition which is used to establish price reasonableness. However, in some situations, cost analysis may be required when prices appear skewed dramatically between offerors or when a cost-reimbursement contract is being used. In the case of large solicitations or those with multiple awards, a Price Evaluation Board (PEB) may be seated to streamline the price evaluation process. A full discussion of the price and cost analysis techniques that the Government may use are found in FAR Subpart 15.404 and 15.407, in case you need a sleep aid some night.
While all this evaluation is going on, it’s a waiting game. But there are a couple more things about the process to know.
#1 - What Exchanges Can Occur with the Government after Submission of Proposals (FAR Subpart 15.306)
[My advice…don’t pick up the phone and start bugging the CO/KO about what they thought of your proposal, ask when the selection will be done or a status update, or remind them of the proposal period that is ticking away. One, they will definitely remember you, and not in a good way. Two, they can’t tell you anything.] There are, however, three (3) types of exchanges that can occur with the Government after you submit your proposal. They are:
- Clarifications – clarify only certain aspects or resolve minor or clerical errors.
- Communications before the establishment of the competitive range (discussed below) – used to address adverse past performance information to which the offeror has not had the opportunity to respond.
- Exchanges after establishment of the competitive range – these are negotiations (aka, Discussions) tailored to each proposal.
#2 - Negotiations (Discussions)
After the initial proposal evaluations are complete, negotiations are exchanges that are undertaken with the intent of allowing the offeror to revise its proposal. At a minimum, the CO/KO must discuss with each offeror still being considered for award any deficiencies, significant weaknesses, and adverse past performance information to which the offeror has not yet had an opportunity to respond. The CO/KO is encouraged to discuss other aspects of the offeror’s proposal that could, in the opinion of the CO/KO, be altered or explained such that it materially enhances the proposal’s potential for award. However, the CO/KO is not required to discuss every area where the proposal could be improved. The scope and extent of discussions are a matter of the CO/KO’s judgment.
In discussing other aspects of the proposal, the Government may, in situations where the solicitation stated that evaluation credit would be given for technical solutions exceeding any mandatory minimums, negotiate with offerors for increased performance beyond any mandatory minimums, and the Government may suggest to offerors that have exceeded any mandatory minimums (in ways that are not integral to the design), that their proposals would be more competitive if the excesses were removed and the offered price decreased.
During all exchanges with industry, Government personnel need to exercise caution so as not to engage in any conduct or communications that-
- Favors one offeror over another,
- Reveals an offeror's technical solution,
- Reveals an offeror’s price without that offeror’s permission,
- Reveals the names of individuals supplying reference information about an offeror’s past performance, or
- Knowingly furnish protected source selection information (i.e., IGCE, acquisition strategy discussions, identities of evaluators, etc.).
#3 - Proposal Revisions (FAR Subpart 15.307)
Should the Government decide to establish a competitive range, proposal revisions may be requested in response to the Government’s initial evaluation findings. Every offeror still included in the competitive range will have the opportunity to provide a proposal revision. After negotiations, the Government will allow offerors to submit a Final Proposal Revision (FPR). Typically, the Government will set a firm date/time for the FPR submission.
We are at the point in the process where we need a drum roll, please. A DECISION!
Source Selection Decision (FAR Subpart 15.308).
Negotiations are done, FPRs are submitted, and the dust starts to settle as the Source Selection Authority (SSA) makes the source selection decision. The CO/KO is designated as the SSA unless the agency head appoints another individual for a program or category of contracts.
The decision is typically based on a comparative assessment of proposals as completed by the TEB and PEB. While the SSA most often uses Board reports and analyses to make the decision, the decision must represent the SSA’s independent judgment. If, by chance, the SSA disagrees with any of the assessments done by others, it typically sends the reports back to the Board(s), pointing out errors or discrepancies for re-review and correction.
However, the SSA may also decide to do an independent assessment of the facts and proposals without sending the information back to the Boards. The SSA would then document the discrepancies found, its assessment, the supporting information and facts used, and its reliance on its assessment in the final source selection decision. (This latter scenario rarely happens. However, when it does, it opens a HUGE protest door. I’ve seen a protest won on a very large Governmentwide contract because the SSA did not properly document the reason for its disregard for the TEB’s evaluation nor provided the supporting documentation relied upon for the decision made.)
The source selection decision is documented and includes the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs.
You’d think once a source is selected, it would be easy after that, right? Well, the source selection only identifies the “otherwise successful offeror(s).” There is still a lot for the CO/KO to do before the selected source(s) can be awarded a contract.
Responsibility Determination (FAR Subpart 9.1)
Once a source is selected, the CO/KO must make an affirmative written determination of responsibility. The general standards of responsibility are:
- Having adequate financial resources to perform the contract, or the ability to obtain them (FAR Subpart 9.104-3(a));
- Being able to comply with the required or proposed delivery or performance schedule, taking into consideration all existing commercial and governmental business commitments;
- Having a satisfactory performance record (FAR Subpart 9.104-3 (b) and FAR Subpart 42.15).
- Having a satisfactory record of integrity and business ethics (FAR Subpart 42.15);
- Having the necessary organization, experience, accounting and operational controls, and technical skills, or the ability to obtain them (including, as appropriate, such elements as production control procedures, property control systems, quality assurance measures, and safety programs applicable to materials to be produced or services to be performed by the prospective contractor and subcontractors). (FAR 9.104-3(a).)
- Having the necessary production, construction, and technical equipment and facilities, or the ability to obtain them, as applicable (FAR 9.104-3(a)); and
- Being otherwise qualified and eligible to receive an award under applicable laws and regulations.
For small businesses, this responsibility determination includes the ability to meet the limitations on subcontracting found in FAR clause 52.219-14.
Congressional Notification (FAR Subpart 17.108)
CO/KOs must make information available on contract awards valued over $4.5 million (or at a threshold established by the agency) in time or the agency to announce it by 5 p.m. Eastern on the day of the award and agencies cannot make separate announcements before that time. Notifications excluded are:
(1) Those placed with the SBA under Section 8(a) of the Small Business Act;
(2) Those placed with foreign firms when the place of delivery or performance is outside the United States and its outlying areas; and
(3) Those for which a synopsis of the solicitation was exempted.
AND PAPERWORK (for the CO). But…before the ink has dried on that freshly signed contract…one thing must happen...
Notification of Unsuccessful Offerors and Debriefings (FAR Subpart 15.505 and 15.506)
Offerors eliminated from the Government’s competitive range may request a pre-award debriefing. The Government may refuse a pre-award debriefing request for compelling reasons if it is in the best interest of the Government. Offerors also should note that the information shared by the Government in a pre-award debriefing may be limited compared to the information the offeror will receive in a post-award debriefing.
The Government must conduct post-award debriefings with both successful and unsuccessful offerors upon receipt of a timely request (i.e., a request received within 3 days after the date on which the offeror received notification of a contract award). However, offerors are entitled to no more than one debriefing for each proposal, meaning if your firm received a pre-award debriefing the Government is not required to provide the business with a post-award debriefing. Offerors should consider the information available in each type of debriefing and decide when best to submit their debriefing request, pre- or post-award.
Offerors who submit an untimely debriefing request lose their right to a pre- or post-award debriefing.
AND another we pray doesn't.
Protest (FAR Subpart 15.507 and Subpart 33.1)
A Protest is a written objection by an interested party to any of the following a solicitation, cancellation of a solicitation, award or proposed award of a contract, or termination or cancellation of an award. Protests can be filed before the award or after the award. Protests can be filed to the agency or the Government Accountability Office (GAO) depending on circumstances.
Protests based on alleged apparent improprieties in a solicitation must be filed before bid opening or the closing date for receipt of proposals. Protests are often filed after the award and must be made within 10 days after the contract award or within 5 days after a debriefing date offered to the protester for any debriefing that is required, whichever is later. Performance is immediately suspended pending resolution of the protest unless continuing performance is in the best interest of the Government or urgent and compelling circumstances exist that will not allow waiting for a decision.
When filed with the agency, it is in the parties’ best interest to resolve all concerns raised by an interested party using “open and frank discussions” and the protestor may request an independent review of their protest at one level above the contracting officer by an employee with no previous personal involvement in the procurement. Agencies must make all efforts to resolve agency protests within 35 days after the protest is filed. When filed with the GAO, a recommendation on the protest is due within 100 days from the date of filing or within 65 days under the express option.
Phew! We made it!
Whether it was done in a month or over several (because it CAN take some time depending on the number of proposals received), it’s a meticulous process that is closely guarded by the CO/KO to move forward expeditiously to where meeting the mission starts and the customer gets what they need. Understanding this process helps you anticipate pitfalls as you prepare your proposal, navigate them when they occur, have a realistic expectation for the timeline, and celebrate your victory or move on with critical information for the next proposal.
Join us next month as we wrap up this series with the Contract Administration (Post-Award) Phase.
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Market Research Isn't About Checking A Box (Weathering the RFO - Part 4)
"I guess FAR Part 10 is gone."
I've seen statements like that in a few posts floating around LinkedIn. And yes, on the surface that's true.
But in practice, market research just became more important and has moved upstairs to live with FAR Part 7 where it belonged all along, in acquisition planning. It's now woven directly in there and no longer seen as a separate activity. I mean, as a Contracting Officer, this is how we have approached it for decades. Good acquisition planning always depends on good market research. You can't develop a sound acquisition strategy without understanding the marketplace you're buying from.
From my perspective, that's not a bad thing.
While acquisition planning encompassing market research is a change in structure, we really need to take it a step further and look at...Why did the Revolutionary FAR Overhaul (RFO) bring them together while simultaneously reducing much of the prescriptive language that historically guided how market research was conducted and documented?
For years, we taught acquisition planning and market research as two separate FAR parts. But they never really lived separately, though industry might think that:
“First, the Government conducts market research then it plans the acquisition.”
Not so quick.
If you’ve been around the inside of the Federal acquisition lifecycle as a member of the acquisition team – the requiring activity, the small business specialist, the end user, or in contracting – you know that's not how good acquisitions worked for real. Planning never stops once a need is put into the budget. It only ramps up on a trajectory that gets faster and steeper the closer to you to either the need date or the end of fiscal year. That trajectory includes market research throughout the pre-solicitation phase.
We used market research to shape, then adjust the acquisition strategy and acquisition plan with what we learned. And that learning didn’t always come in the form of an RFI. We refined requirements, reconsidered contract types, identified capable small businesses we hadn't previously considered, discovered commercial solutions that changed the direction of the procurement, and poured through acquisition history in our agency and others.
In other words, market research isn't one step.
It is always on your mind as the budget becomes known, the requirements start to materialize, and the opportunity becomes known to industry.
The RFO recognizes that reality by integrating market research now into FAR Part 7. That's a positive evolution. It reflects how acquisition professionals do the work.
But something else changed, too.
The rewritten framework is noticeably less prescriptive…intentionally. The FAR Council has been very clear that one of the objectives of the FAR re-write is to reduce unnecessary procedural requirements, simplify the regulation, and place greater reliance on professional judgment.
I understand that objective and I support it. BUT… I keep thinking about the fact that federal contracting isn't just about making good business decisions. It's about making decisions that are FAIR.
And those two things aren't always the same.
When people outside Government hear the word “process”, they often think “bureaucracy”. Federal employees like little hamsters on wheels running the cogs of a system where they are looking for ways to slow down, do less, take up more time, eat up more industry dollars, and short cut the system.
As a Contracting Officer, “process” to me meant “fairness”. And it provides certain tests you have to meet.
Could another company look at this acquisition and conclude it had a fair opportunity to compete?
Could GAO understand why we selected this acquisition strategy?
Could an Inspector General reconstruct our thinking?
Could my supervisor understand my rationale for this acquisition strategy?
Could I defend this decision six months from now if someone challenged it?
THAT STILL MATTERS.
Those questions are part of what makes federal procurement DIFFERENT from commercial buying, EVEN WHEN the Government's version of commercial processes are used.
It’s precisely why market research evolved into more than simply learning about the marketplace.
It also became one of the ways agencies demonstrated that acquisition decisions were informed, deliberate, and fair.
Not perfect, but fair.
From the Contracting Officer's Chair
One of the themes you'll continue to see throughout Weathering the RFO is a simple question: Why was this process or procedure there in the first place? That's very different from asking whether it was statutory.
Many of the historical procedures surrounding market research weren't created simply to generate more documentation. They evolved because they promoted thoughtful decision-making, encouraged agencies to explore commercial solutions, supported small business participation, and helped acquisition teams avoid unnecessarily restrictive requirements.
And most importantly, they created a record explaining how the Government arrived at its acquisition decisions.
Understanding why they evolved in the first place is equally important as putting process and procedure through a woodchipper. Because we all know – because it’s been said – that this is all about clearing perceived dead wood. But dead wood holds history. Trees grow through resilience. Every ring a year; a set of seasons that tested its endurance. The nonstatutory language shifted out of FAR holds years of lessons learned, protest wins and losses, shifting markets, and economic and national crises. While some may still be in the FAR Companion and Practitioners' Albums, they no longer carry the same weight.
It should carry some weight. It must inform judgement -- good judgement.
"Trust the acquisition workforce" is now basically what the RFO says.
The rewritten framework relies more heavily on judgment – but not professional experience, education, business acumen, and common sense.
Just less prescriptive lingo and little to no instruction.
Experienced Contracting Officers are capable of not missing a beat and exercising that good judgment. Many do daily. The larger question is how we develop that judgment across the workforce. Judgment doesn't appear because regulations shrink. It comes from experience, mentoring, training, discussion, successes, mistakes, and protests.
If we reduce regulatory prescription, we need equally strong investments in developing professional judgment. They go hand in hand.
As a Chief, I never just asked, “Did you complete your market research?"
This list of questions were almost always asked to at least one project manager in our Advanced Acquisition Planning Boards (AAPBs) in USACE and FAA.
“What do we know about the differences in the market between this procurement and the last.”
“Who is in the market now and who has left? Who is emerging?”
“What economic factors could change this acquisition throughout its lifecycle?”
“What are current trends and market indicators in this industry telling us?”
“What don’t we know and how are we getting that information?”
If the answer was, "Nothing," I usually wasn't encouraged but I also didn’t just let it slide because good judgement and due diligence demands these questions be asked and the answers found and considered.
Good market research should occasionally prove us wrong. It should challenge assumptions. It should make us rethink a requirement, reconsider a contract type, or discover capability we didn't know existed.
If market research never changes the acquisition strategy, we need to ask ourselves if we are really studying the right marketplace or simply documenting decisions we've already made to fit a solution we already know we want.
The VALUE of market research is that the "THINKING" piece of it MADE ACQUISITIONS BETTER. The report you spit out to check a box is not the value.
What I see working through the RFO is that there is strength in integrating market research into acquisition planning. However…we need to pay close attention is the corresponding reduction in prescriptive procedures. Those procedures didn’t only historically tell contracting officers what to do. They promoted consistency, transparency, and fairness in how acquisition decisions were made and documented.
The question isn't whether procedures should remain. It’s whether acquisition teams will continue to approach market research with the same discipline now that the RFO has created a less prescriptive process.
If acquisition teams can maintain discipline, consistency, transparency, and fairness, then the RFO changes have real potential to improve acquisition planning. But if market research becomes something we document after the important decisions have already been made, we'll have missed the opportunity the RFO, I believe, intended to create.
Ultimately, success won’t be measured by deleting FAR Part 10 and shifting it to FAR Part 7 to say we eliminated redundancy for some quick Administration win. It needs to be measured by whether acquisition planning becomes more informed because market research is fully integrated into it and not treated as a compliance exercise that happens alongside it.
Some measures of RFO success related to market research include assessing if:
• Agencies create ways to encourage thoughtful market research while reducing costs for industry. No more RFIs that are mini-RFPs.
• Tools, training, and leadership develop the critical thinking skills needed for newer contracting professionals in a less prescriptive market research environment. Moving beyond checklists to business acumen.
• Agency acquisition strategies demonstrate fairness and consistency.
• Market research is integrated into acquisition planning earlier, resulting in more meaningful engagement -- and new methods for that engagement -- with industry.
• Five years from now, acquisition professionals aren’t viewing market research as a report but an innate requirement for good acquisition planning.
It’s up to industry and Government to keep market research fair and real versus it being relegated to a claim of less pages or a shorter FAR.
What’s Coming Next -- When Judgment Carries More Weight
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Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
Getting Started in Federal Contracting: fedsubk.com/begin-your-journey-here
Solutions and Our Trusted Support Provider Network: fedsubk.com/solutions-services
Insights from a Contracting Officer: fedsubk.com/insights
Free Webinars and Resources: fedsubk.com/webinars-training
Where Good Procurements Really Begin (Weatherly the RFO - Part 3)
Before I got my first warrant (required to sign contracts), I was a Contract Specialist writing my first acquisition plan. It was for a large Total Environmental Restoration Contract (TERC) that included A-E, Services, and Construction terms and conditions. I was told, "follow FAR Part 7." I thought, "Okay, looks like I'll be doing a lot of these in the coming years. Figure it out." With a few years under my belt, I learned quickly that acquisition planning is the foundation for every successful procurement.
When I moved into leadership roles, we built acquisition planning into our entire program and project lifecycle. We implemented Advanced Acquisition Planning Boards (AAPBs) before writing lengthy acquisition strategy and planning documents. We invited stakeholders like Contracting to attend the budget request preparation meetings for the next FY. We started shaping an understanding and a plan of action months and years in advance of analyses and research.
Anyone who has spent time around acquisitions in the Federal space knows that most procurement problems begin at the beginning, before any procurement forecast goes into Acquisition Gateway or on the agency’s small business page, or any Sources Sought notice is issued in SAM. Long before a solicitation is issued and proposals arrive. And long before anyone files a protest.
You can almost always pin-point where, if you are going to have a problem, it will begin.
When an agency hasn't fully thought through what it's buying, why it's buying it, how the requirement should be structured, who might be capable of performing it, or what risks need to be managed before the acquisition ever reaches the marketplace.
Acquisition planning is preparation. If that’s not what we’re doing, we’re already creating problems for every acquisition phase that follows.
And that's why this topic in federal acquisition and the proposed RFO rules deserves attention, especially now that FAR Part 10, Market Research, has been combined with FAR Part 7, Acquisition Planning. Combining acquisition planning and market research recognizes something practitioners have known for years -- they're inseparable.
But it also means that changes to planning now ripple directly into how agencies understand the marketplace before they ever write a solicitation.
Congress never cared whether agencies produced acquisition plans. Congress cared whether agencies made good acquisition decisions. They care about competition, stewardship of taxpayer dollars, thoughtful use of small businesses, commercial buying, performance-based acquisitions, and risk management.
Those are the objectives.
Acquisition planning has been the primary tool for achieving them. But the plan itself was never the goal. The effort behind the plan was. Acquisition planning is simply one of the first steps in the procurement process. It is the place where the most important decisions have already been made.
Consider the examples I gave above about the discussions in the AAPB and budget request preparation. All of that is well before anything was put into writing. And heck, by the time the RFI was released (if we released one), just about every big question was already answered.
• Will this be a small business set-aside?
• Have commercial solutions been considered?
• Should the requirement be bundled?
• What's the acquisition strategy?
• What contract type makes the most sense?
• How will proposals be evaluated?
• How much performance risk is acceptable?
Those decisions are a product of discussions very early in acquisition planning. By the time industry reads the solicitation, many of the biggest decisions have already been made. The solicitation simply makes those decisions visible. So that begs the question…
…If acquisition planning changes, doesn’t everything downstream change, too?
I have a ton of notes in the margins of my electronic copies of the RFO parts issued so far. Most center around... Where is the acquisition leadership expecting contracting specialists and contracting officers to learn how to think through these decisions? I'm not talking training sessions, listening sessions, leadership briefings, webinars, the FAR Companion, Practitioners' Albums.
We are overwhelmed by data these days -- there is no shortage. Collection of data isn't the issue. it's what to do with it once we have it. What is meaningful and what isn't? That's a legitimate concern from the perspective of a contract specialist working different types of contracts in their cradle-to-grave office set-up. Or the specialist or contracting officer moved as a result of agency realignments and now buying something new, with no training whatsoever.
With the FAR Council is intentionally moving away from detailed procedural direction in favor of shorter regulations supported by guidance outside the FAR, we have to acknowledge that, historically, the FAR didn't just tell contracting officers what it needed to comply with, but often explained how to ensure compliance and answered questions about how to get it done.
From the Contracting Officer's Chair
Let’s start with a discussion about curiosity. Bring me a purchase requestion and I would have a list of questions ready for you. I know from experience that my answers and how this action continues hinges on what those answers are. That includes everything that goes right and wrong, long before I use any AI tool and ask questions.
• What problem(s) are we trying to solve?
• Is there another way to buy this?
• Has it been purchased before?
• Who in industry might already be doing it and how is it procured?
• What risks are we creating and mitigating?
• What opportunities are we overlooking and creating?
• What is it that we don’t know yet but need answers for?
And then the standard "dollar value", "when do you need it", and "do you have money yet" questions.
Every profession has it and the contracting craft is no different. Knowing what questions to ask is part of the craft. Also part of the craft is learning how best to pass information from one experienced professional to the next. The RFO is forcing us to reconsider where and how that institutional knowledge should live going forward. And, how we preserve it in market research and acquisition planning.
Written acquisition plans preserve all discussion and decisions points. It is the ultimate fallback for the building of the solicitation and the justifications of what we are doing and why in the pre-award phase leading to the solicitation. It is never seen by industry but relied upon by acquisition. Making preservation discretionary means documentation practices could vary significantly across agencies, depending on each agency's implementation decisions and tolerance for risk.
What gets lost are rationales, alternatives considered, risk discussions, disagreements, lessons learned, why things changed from the last procurement, and what outside influences impacted current decisions. Acquisition plans in their written form allow that information to be inherited by future acquisition teams. This deserves more attention than it's receiving in the RFO.
The RFO made the changes in FAR Part 7 about the laundry list of what had to go in the plan.
Wrong argument.
It is ALL about careful consideration of facts and circumstances before acting. How much consideration is required to make informed decisions, preserve those decisions so we have them as a guide moving forward, and actually use them to improve and streamline the process. Contracting officers know that their judgment can't be regulated. They stop relying on checklists and start recognizing patterns. They know the questions to ask end users, requiring activities, legal counsel, budget, and small business specialists because seeing the patterns for a poor acquisition form. That's because most know where acquisitions tend to go off track from living through it.
If the FAR is going to become shorter, the acquisition workforce needs a deliberate and consistent strategy across the board for preserving the judgment, rationale, and historical knowledge that good acquisition planning has always provided.
Otherwise, while we simplify the rulebook, it will -- for now -- make the profession harder to master.
What’s Coming Next -- Article Four: Market Research Isn't About Checking a Box
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Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
Getting Started in Federal Contracting: fedsubk.com/begin-your-journey-here
Solutions and Our Trusted Support Provider Network: fedsubk.com/solutions-services
Insights from a Contracting Officer: fedsubk.com/insights
Free Webinars and Resources: fedsubk.com/webinars-training
What Does Nonstatutory Really Mean? (Weathering the RFO Series - Part 2)
In my last article, I talked about one of the biggest misconceptions surrounding the Revolutionary FAR Overhaul (RFO) is the idea that the Federal Acquisition Regulation (FAR) itself creates procurement policy. It doesn't. And if you are in GovCon, you should know that basic truth. Congress creates procurement policy. The FAR implements it. That distinction changes how we should think about the RFO. Instead of asking, "Why did they delete that?" I think we should first ask, "What purpose was that requirement serving?"
That question brings me to one of the most overused words appearing in every conversation or Government briefing about the RFO (aside from "empowering")...
Nonstatutory.
But it really is the most misunderstood word in the current conversation.
You'd think it was pretty straightforward. When you hear that the FAR Council was removing nonstatutory requirements from the FAR, the reaction was pretty simple. “Well, okay. If Congress didn't require it, why should it stay?" Just one thing...that assumes something that isn't necessarily true --
...if Congress didn't specifically require a process or procedure, the process or procedure isn't important.
Whoa! Think about that for a minute.
I spent most of my career implementing FAR, not just reading it, and that is NOT the right conclusion.
Being a Contracting Officer teaches you is that two questions can sound almost identical while leading to very different answers. And as Contracting Officers, we’ve been taught to pay attention to words very carefully.
In this case, the first question is a legal question: "Did Congress require this? " But the next is an acquisition question: "Why did this process or procedure exist to begin with?" Sometimes the answer to both questions is the same. Congress required it. Case closed. But more than not, they aren't. And that comes out when you sit in a FAR policy working group meeting. You hear the discussion and debate over what Congress said is the law and the intent of that law, versus how we implement the law and ensure compliance with the law. In that room, the conversation always went back to Congress established the objective and intent or outcomes. The FAR established the procedure with which to ensure objective or intent was achieved.
And THAT requires consistency to get there Governmentwide. So, how do you get consistency? Processes and procedures.
Ouch! There are those pesky processes and procedures again. Those "nonstatutory" actions.
Congress rarely dictates via law how to get from point A to point B for something like acquisition planning. Or market research. Or documenting a responsibility determination.
The FAR has historically translated policy into repeatable acquisition practices. And for good reason. Left to their own devices, agencies have as many ways to do acquisition as the number of acquisition professionals they have on staff.
Honestly -- how many times have you worked with two Contracting Officers in the same office that didn't do the same thing the exact same way, even with processes and procedures in place.
Often.
How FAR Actually Evolves
FAR didn't appear one day as a finished document. It evolved. And that evolution was expressly the oversight of the FAR Council which allowed the document to grow to into a perceived answer book, versus a regulation. And every acquisition professional has lived some part of that evolution. We've seen the legislation, been involved in protests, participated in IG reviews and seen the reports (and responded to them), instituted best practices and lessons learned...and more. Over time one-off procurement issues in a single agency or type of acquisition across Government become a way to migrate fixes into regulatory language in an effort to reduce risk. If Contracting Officer's weren't taking risks it was because the FAR kept the lanes narrow to the point there couldn't be an innovation race to streamline acquisition. The grey area in FAR become harder to find. Not because Congress required it but because acquisition leaders across Government kept watering the regulatory jungle of the FAR.
The thread of consistency is created in the rulemaking process.
Congress passes a law requiring agencies to maximize practicable opportunities for small businesses. Congress doesn't necessarily prescribe every analytical step a Contracting Officer should take before deciding whether a procurement should be set aside.
But take that law, give it to SBA, they write a rule, and upon finalization...if the FAR Council believes it should be incorporated into the regulation, it creates a FAR case and tasks one of two councils – the Civilian Agency Acquisition Council (CAAC) or the Defense Acquisition Regulations Council (DARC) – to lead the process of drafting, coordination, and agreement on the text of the rule.
The entity on point (CAAC or DARC) and its co-chair (whichever isn't the lead) herd procurement analysts in working groups to write FAR changes that include PROCESSES for implementation. These acquisition professionals from across government talk about interpretations and context. And they are sorting out the commonality all of what they all do. That's where process and procedure start to become important.
Interpretation and context is everything in the acquisition business. The words are chosen carefully and the decision to create a process or procedure within the FAR is the way to ensure consistency and the outcome / intent is achieved.
Once rules become final and their processes were implemented, they become tied to other processes and you get a series of procedures that tie across types of contracts, use of certain funding, types of buying methods, and types of evaluation processes... and more.
Those processes and procedures become threads of consistency across government.
But that doesn't mean every process or procedure put into place should remain forever. I mean, the RFO just now got rid of the American Reinvestment and Recovery Act (ARRA) language from awards made in 2009 and 2010. Why did that take so long?
From the Contracting Officer's Chair
We need to understand what role processes and procedures have been playing before deciding they are no longer needed. Particularly with an acquisition workforce turned upside down through "The Fork" and DRP and people jumping ship. We don't have the same level of historical knowledge now. Face it. Things are different. Not bad, just different.
Without process and procedures in place, how do they learn? By making bad decisions and getting your neck chopped in a time of threats to your livelihood coming from several directions? Behavior isn't likely to include a new level of taking risks in that environment.
Government acquisition leadership (and some of those hosting Government acquisition leaders in their think-tanks) simply aren't facing reality.
Now, I'm not arguing against simplification. Frankly, it is the exact opposite. Ive wanted a more readable and user-friendly FAR for years. That part of the RFO is worthwhile. But simplification being good, isn't what this is all about. It's about -- Now that “X” has disappeared, what else disappears with it? It's about distinguishing between simplifying regulations and building better outcomes. It's really easy to simplify something when you're looking at it from 30,000 feet. It's much harder when you're the Contracting Officer responsible for defending the acquisition file two years later.
Will Contract Specialists and Contracting Officers still have the same training, historical knowledge, management support, and tools available in while operating in the shell of the former workforce capacity -- especially at the end of fiscal year?
Did you notice the thing missing in my take versus the FAR Council's take?
I'm not asking whether the provision was statutory.
I'm asking questions the acquisition workforce is asking.
If someone had walked into my office twenty years ago and said, "Shauna, this thing you're making me do, it isn't statutory." My next question probably would have been, "Okay...but it helps accomplish X, so why wouldn't we use it?" Not because I was defending regulations but because I was trying to understand whether not doing something changes how I approached an acquisition and create efficiencies. Should I push back and how far can I push the envelope? Or could I defend taking a different action and argue I'm still compliant?
Some procedures existed because they genuinely improved decision-making. Others existed because they reflected old ways of doing business that no longer made sense. One of the responsibilities of a good Contracting Officer is learning to tell the difference. Working in the grey area. Understanding where it lives and not get rid of it when it is needed to achieve the outcomes intended by Congress.
That is our charge as acquisition professionals - exercising business judgement. That often involves a process to ensure we hit the mark and do our due diligency. And you Contracting Officer's know just how often you used processes and procedures in the FAR to fall back on when they actually helped streamline decision-making, efficiency, and consistency.
The RFO now revolves the conversation around statutory information that remains which short-circuits the discussion we need to have.
Statute tells us where a requirement came from, but experience helps us understand why the nonstatutory stuff mattered. And why it might still be needed.
We need that both perspectives as we move forward reviewing proposed RFO changes.
What's Coming Next -- Article Three: Where Good Procurements Really Begin?
One of the first places it gets real is acquisition planning. The FAR has historically translated procurement objectives put in place by Congress into how we determine acquisition planning requirements. And that influences everything from competition to market research to small business participation.
Next, I’ll be talking about why acquisition planning became one of the foundations of federal procurement and what it means when many of those implementation details move from regulation to guidance…again, two very different things.
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Author: Shauna Weatherly, President, Federal Subcontract Solutions LLC (dba FedSubK). Shauna is a small business advocate and owner of FedSubK. FedSubK exists to simplify federal contracting, empowering small businesses with practical, understandable resources. We bring first-hand experiences in Federal contracting from multiple perspectives derived from roles held both in and out of Government over almost four decades of Federal service.
Visit us at fedsubk.com to learn more about--
Getting Started in Federal Contracting: fedsubk.com/begin-your-journey-here
Solutions and Our Trusted Support Provider Network: fedsubk.com/solutions-services
Insights from a Contracting Officer: fedsubk.com/insights
Free Webinars and Resources: fedsubk.com/webinars-training
