CHAPTER 9 INVOLVING CONTRACTORS IN ACQUISITION PLANNING

The FAR calls any written or oral interaction between the government and contractors that either are competing for or might be competing for a specific contract an exchange. Within FAR-restricted limits, exchanges may take place before a solicitation is issued or at various times following the issuance of a solicitation.

FAR 15.201 specifically encourages “exchanges with industry before receipt of proposals.” When these preproposal exchanges are conducted before a solicitation is issued, they are known as presolicitation exchanges.

As we have noted previously, the FAR encourages contractor participation in acquisition planning. But this raises two questions: (1) Why? (2) What are the limits of contractor participation? The answer to the first is fairly apparent. These exchanges are meant to improve the agency’s and potential offerors’ understanding of both government requirements and industry capabilities. Potential offerors can then judge whether or how they might satisfy the government’s requirements. These exchanges can also help the government be a smart buyer and prevent it from making erroneous assumptions that could result in numerous amendments to solicitations, aborted procurements, or both.

The answer to the second question regarding limits requires a more in-depth discussion. Some elements of the answer might even be surprising.

PRESOLICITATION EXCHANGES

According to FAR 15.201, presolicitation exchanges involving contractors may address concerns regarding:

• The acquisition strategy, including the proposed contract type, terms and conditions, and planning schedules

• The feasibility of the requirement, including performance requirements, statements of work, and data requirements

• The suitability of the contemplated proposal preparation instructions

• Evaluation criteria

• The approach contemplated for assessing past performance information

• Any other industry concerns or questions.

The venues and methods the FAR lists for conducting presolicitation exchanges include:

• Industry or small business conferences

• Public hearings

• Market research

• One-on-one meetings

• Draft requests for proposal

• Requests for information

• Presolicitation conferences

• Site visits, where appropriate.

The potentially surprising aspects of presolicitation exchanges involve one-on-one meetings where the FAR now seems to allow a great deal more latitude than in the recent past. The FAR now permits one-on-one discussions regarding any or all the concerns mentioned previously, including the feasibility of the requirement, proposal preparation instructions, and evaluation criteria. (Chapter 10 discusses one-on-one meetings in more detail.)

Agencies routinely hold conferences and hearings to inform industry of current and planned government acquisitions. These meetings are most fruitful when time is allotted to give potential contractors a chance to voice opinions and ask questions of agency representatives on a one-on-one basis. This is so because contractors are often reluctant to bring some issues up in open forums in front of competitors.

DRAFT RFPS

Draft RFPs allow contractors to consider in depth what the government is considering to include in the final RFP. Thus, they are most valuable when they contain the proposed statement of work, proposal preparation instructions, evaluation factors (and, when appropriate, the relative importance of those factors), data requirements, and the like. Nonetheless, some agencies require special approvals at a level above the contracting officer in order to include contemplated proposal preparation instructions or contemplated evaluation factors in a draft RFP, even though it would seem that the more information exchanged, the better off all parties involved (government and contractor) will be.

Overworked government contracting personnel are sometimes reluctant to issue a draft RFP, apparently feeling that they have barely enough time to issue one RFP, let alone two. Notwithstanding this reluctance, the use of draft RFPs may save time in the long run and certainly leads to better source selections through more competently crafted final RFPs reflecting realistic requirement statements and more meaningful evaluation factors. The challenge for government planners is, of course, to determine which of the comments received from potential contractors are meaningful and which are merely self-serving. Separating the wheat from the chaff is essential.

Requests for information (RFIs) are normally prepared using agency-prescribed formats and usually include a disclaimer that the government will not be obligated in any way for contractor participation. This disclaimer means the government will not be obliged to choose one of the contractors that submits information and that the government will not pay for the information developed and submitted in response to the RFI or otherwise reimburse the contractor in any way.

There is, of course, a line that must not be crossed. While contractors are part of the FAR-defined acquisition team, government planners must avoid both improprieties and the appearance of improprieties. While walking arm in arm with their acquisition partners—contractors—government personnel are still expected to keep the traditional arm’s-length relationship.