Last month, we discussed opportunities for federal contractors to expand their business prospects during a crisis such as the current coronavirus pandemic. These opportunities are found in FAR Part 18, Emergency Acquisitions, and increases to the thresholds for micro-purchases, simplified acquisitions, and some commercial items.
This month, we focus on two important factors to consider when prospecting new work during this difficult time: communication and innovation. We suspect your marketing efforts will need to keep these two factors in mind because you may well be in the position of trying to convince a contracting officer to award work based on rarely used FAR authorities in an agency culture that may be hesitant to step out of its routine.
Communication
There is a common misconception that the government cannot meet one-on-one with a potential offeror. This is incorrect. FAR 15.201(a) encourages “exchanges of information among all interested parties, from the earliest identification of a requirement through receipt of proposals, are encouraged…Interested parties include potential offerors, end users, Government acquisition and supporting personnel, and others involved in the conduct or outcome of the acquisition.”
Government officials can generally meet one-on-one with potential offerors prior to the issuance of a solicitation, as long as no vendor receives preferential treatment. Furthermore, engaging in these discussions allows the government to obtain feedback on terms and conditions, pricing structure, performance metrics, evaluation criteria, and contract administration matters that will improve the award and implementation process.
The workloads of agency procurement staff might make them reluctant to spend time on information exchanges with contractors. To confront this reluctance, the Office of Federal Procurement Policy (OFPP) has issued guidance to agency procurement staff in the form of several “Myth-Busting” memorandums that address some common excuses a contracting officer may use to avoid meeting with you.
For example, a contracting officer might claim that the agency’s program people have already talked to industry so the procurement staff need not get involved. However, according to OFPP, regardless of these mutual technical exchanges, “the contracting officer should communicate to vendors as much information as possible about the government’s needs as early as possible. As a result of early communication, the contracting officer may learn some things that suggest that an approach somewhat different than planned may cause increased competition, more small business participation, lower prices, or even a better definition of the government’s technical requirements.”
Contractors, for their part, should also consider OFPP advice on contractor communications with the government. For example, contractors should consider bringing their subject matter experts to meetings with the government, and not just the business development and marketing staff who are focused on the sales pitch. Also, agency personnel have a responsibility to protect proprietary information from disclosure outside the Government and will not share it with other companies.
Innovation
It’s also possible that Covid-19 marketing efforts might run into the government argument: “where does it say we can do that?” According to FAR, that’s the wrong question. The right question is “where does it say we can’t do that?”
According to a little-known provision of the FAR, innovation in government contracting is FAR policy. FAR 1.102 stresses that innovation is a “guiding principle” for government procurement. If something is not prohibited by law, executive order, or other regulation – it is allowed even if not expressly addressed by the FAR. Thus, the correct question is “Where does it say we cannot do it?”
Reverse auctions are a good example of the FAR innovation policy in use.
Even more surprising, perhaps, to contractors and contracting officers alike, is that FAR gives contractors a role in procurement innovative. According to FAR 1.102(c), “The Acquisition Team consists of all participants in Government acquisition including …the contractors who provide the products and services.”
As for contracting officers, they should know that FAR expects them to be the leader. According to FAR 1.201-4(e), “Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.”
These core FAR principles should come in handy for contractors trying to get work during the pandemic crisis. Make sure that agency procurement staff know that FAR (1) encourages contractor communications with them and (2) they should be innovative in developing procurement strategies that are in the best interest of the government.
Terry O’Connor is a Partner and Director of Government Contracts at Berenzweig Leonard.
This article was written on June 19, 2020 and represents Berenzweig Leonard’s interpretation of the law and circumstances at the time of publication. As the situation surrounding the COVID-19 pandemic is changing on a daily basis, new or additional developments may impact matters discussed in this article. Please contact Berenzweig Leonard’s attorneys for up-to-date information.