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Fear of the FAR – Is It Getting in the Way of Doing Business?

Fear of the FAR imageDo 1,883 pages of Federal Acquisition Regulations (FAR), comprised of 53 different Parts, dozens of forms, and a correction page feel like something to be feared? Does it keep you from buying what you need to support your agency?

Many government decision-makers look at the FAR as a significant obstacle to their acquisitions, but at its core it provides a consolidated framework for conducting the business of acquisition in a fair, predictable, and repeatable manner while protecting the interests of both the federal government and the people who would like to do business with it, while reinforcing good use of taxpayer funds.

Let’s look at the effect of the current environment on federal contracting, and why the FAR can be made to work for you, not against you.

Scrutiny of Contracting Makes Stakes Higher

One of the most worrisome concerns when trying to complete a successful contract action is having it protested, which can be a significant setback to obtaining necessary goods and services.  Beginning with this past fiscal year, the Government Accountability Office (GAO) has begun providing the most prevalent reasons for protests in its Bid Protest Annual Report to Congress.  The GAO presented the following reasons as most prevalent in FY13:

  • Failure to follow the solicitation evaluation criteria
  • Inadequate documentation of the record
  • Unequal treatment of offerors
  • Unreasonable price or cost evaluation

Just this past year, 46 different companies protested the EAGLE II Functional Category I, Unrestricted award (which went to 15 bidders initially).  Speculation for protest grounds included a perception that the awards were made based on a lowest-price, technically acceptable (LPTA) evaluation, when DHS had announced that it was going to be best-value (as reported in this Federal News Radio article).  This is a perfect example of what GAO covered in its report.

The stakes have gone up in federal contracting due to leaner budgets, so it’s only logical that each new contracting action will come under greater scrutiny, thereby putting more pressure on acquisition officials to get things right, from the planners to the executors.  Acquisition officials now seem to shy away from competitive sourcing, when that’s the most effective way to get the best price for what you need.  Fear of under-thinking the acquisition approach or making a mistake in the process can be a natural consequence, as can be an over-thinking of various procurement factors, resulting in “analysis paralysis.”

FAR Provides a Road Map

Perhaps the time is right then to return to fundamentals.  So, at the risk of sounding like I’m beating the drum for a one-size-fits-all, schoolhouse solution, use the FAR as it was intended, to be a road map for the textbook solution.

Subchapter B, Competition and Acquisition Planning, has everything you need to lay the groundwork for a successful acquisition.

  • Part 7 covers Acquisition Planning
  • Part 8, Required Sources of Supply/Services
  • Part 10 covers Market Research, which can include seeking industry feedback and buy-in (which helps avoid nasty surprises)
  • Part 11 covers building good Requirements
  • Part 12 has the preferred procurement method of Acquisition of Commercial Items.
  • Once you know what you want and how to get it, publicize and give everyone who’s qualified a fair shot, drawing from Part 5 Publicizing Contract Actions, and Part 9 Contractor Qualifications

Once planning is complete, it’s time to pull the trigger and buy.  Move on to Subchapter C, Contracting Methods and Contract Types.

  • Selecting the right Contract Type (Part 16) can be tricky, but the homework would have been done to help during the market research, requirements definition, and acquisition planning steps to support the choice made
  • Part 15 lays out all the steps necessary to doing a competition right, including:  Source Selection planning and preparation; source selection execution; and Pre-award, Award, and Post-Award actions, including pitfalls to avoid

So, consider approaching the FAR as an arcane cookbook, rather than some mythological creature to be feared.  When you find that the typical competitive commercial contract doesn’t fit, there are usually sufficient alternatives in the FAR to give agency procurement officials the flexibility to meet their needs without fear of misapplying the regulations.  Make the FAR work for you rather than against you.

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