Expand Your Federal Contracting Knowledge

Before I got my first warrant to sign contracts, I was a Contract Specialist writing my first acquisition plan. I started out believing that acquisition planning was one of those things we did just because the FAR said we had to. Over time and with experience I learned that acquisition planning is the foundation for every successful procurement.

Meetings, checklists, market research, and accompanying analysis. It could feel like a lot of “process” before we ever got to the "real work" of awarding a contract.

Then, 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 far 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. Months 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 the solicitation is issued and proposals arrive. And long before anyone files a protest.

Problems 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 behind.

And that's why this topic in federal acquisition and the proposed RFO rules deserves careful 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.

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Was Acquisition Planning Always the Goal?

One of the things I want to do in this series is separate activities from objectives. Acquisition planning is a perfect example to use for that purpose.  

Congress never cared whether agencies produced acquisition plans. Congress cared whether agencies made good acquisition decisions. That means--

• Competition.

• Stewardship of taxpayer dollars.

• Thoughtful use of small businesses.

• Commercial buying, where appropriate.

• Performance-based acquisitions.

• Risk management.

Those are the objectives.

Acquisition planning was the primary tool for achieving them. That’s important to understand. The plan itself was never the goal, but the effort behind the plan…well…that is the goal.

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 FAR 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?

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Here's What Changed for Me

As I started reading the proposed revisions affecting acquisition planning, I found myself jotting notes into the margins of the files about…

Where is the Government expecting contracting specialists and contracting officers to learn how to think through these decisions?

I mean, from the working level perspective of the acquisition workforce, that's a genuine question.

One of the themes we've already talked about in Parts 1 and 2 in this series is that the FAR Council is intentionally moving away from detailed procedural direction in favor of shorter regulations supported by guidance outside the FAR. That's a reasonable policy choice and may, over time, prove to be a good one. But it also changes something important.

Historically, the FAR didn't just tell contracting officers what to do.

It often explained how to do it and what questions to answer.

Those aren't the same thing.

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‍Experience Eventually Replaces Procedure

One thing every experienced contracting officer learns is that judgment can't be regulated. You stop relying on checklists and start recognizing patterns. You know which questions to ask your end users, requiring activities, legal counsel, budget, and small business specialists because you're seeing these patterns. And most importantly, you know very well where acquisitions tend to go off track because you've lived through it.

That's experience.

The challenge is that every acquisition workforce also includes people who haven't accumulated that experience yet. They're learning. For many of them, the FAR has been much more than a rulebook but a teacher.

As the FAR becomes shorter and the fall out of the acquisition workforce churn from a year ago are still all in flux, one question seem so obvious.

Where will the next generation of acquisition professionals learn the judgment that used to be reinforced through regulation?

Maybe the answer is the FAR Companion. But in reading it, there isn’t enough risk cover in it for a shifting acquisition culture.

Maybe it will be agency guidance. However, we all know that guidance is developed far enough away from day-to-day acquisition execution that it risks missing practical realities.  

Maybe it's stronger mentoring. But the acquisition workforce churn is forcing some into leadership that have lost their own mentors. Who fills the shoes for them?

Will it still live in the acquisition file without a written acquisition plan?

For decades, institutional knowledge lived in regulations, agency guidance, experienced mentors, and official contract files.

Today, every one of those is changing at the same time.

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For Me, It's About Institutional Knowledge.

Every profession has it and the contracting craft is no different. We have knowledge written into statutes, regulations, and learned information passed 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.

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 is:

• Rationales,

• Alternatives considered,

• Risk discussions,

• Disagreements,

• Lessons learned,

• Why things changed from the last procurement,

• What outside influences impacted current decisions.

Acquisition plans in their written form allow that information to be inherited by future acquisition teams.

And going back to the point earlier on the next generation of acquisition professionals, again, where will they learn what is best considered, recorded, and preserved (and how)? This question deserves more attention than it's receiving in the RFO.

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From the Contracting Officer's Chair

Let’s start with a discussion about curiosity. Everything that is going to go right with an acquisition (or wrong) starts long before a contracting officer clicks on the acquisition.gov website or sticks their acquisition question into the latest AI tool at the agency. It starts with asking 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?

While the FAR guides those conversations. It can't replace them.

Acquisition planning was never about the laundry list of what had to go in the plan.  It IS 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.

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My Perspective

Acquisition planning has never been valuable because the FAR required it. It's valuable because thoughtful and deliberate planning consistently produces better procurement decisions.

Reducing unnecessary regulation is a worthwhile goal but doing it at the expense of losing institutional knowledge isn't.

If the FAR is going to become shorter, the acquisition workforce needs an equally 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 makes profession harder to master.

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What’s Coming Next -- Article Four: Market Research Isn't About Checking a Box

If acquisition planning is where the Government decides how it's going to buy, market research is where it discovers what's possible. We'll explore why market research has become one of the most influential and underestimated activities in federal acquisition, how it affects competition, commercial buying, and small business participation, and what changes in the RFO may mean in practice.

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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

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In my last article, I suggested that 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 brings us to one of the words that appears throughout any conversation or Government briefing about the RFO.

Nonstatutory.

It's become one of the most misunderstood words in the current conversation.

At first, I thought it was pretty straightforward. Like most people, the first time I read that the FAR Council intended to remove nonstatutory requirements from the FAR, my reaction was pretty simple. “If Congress didn't require it, why should it stay?" Then I caught myself. That assumes something that isn't necessarily true; if Congress didn't specifically require a procedure, the procedure probably isn't very important.

After spending most of my career implementing procurement policy rather than simply reading it, I'm not sure that's always the right conclusion.

One of the things working as 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:  

"Did Congress require this? " That's a legal question.

The second question is: "Why did this procedure exist?" That's an acquisition question.

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 get there consistently and effectively across Government.

That's an important distinction.

Congress rarely tells Contracting Officers exactly how to conduct acquisition planning.

Or exactly how to perform market research.

Or exactly how to document 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.

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How FAR Actually Evolves

One thing I wish more people understood is that the FAR didn't appear one day as a finished document. It just evolved. Every acquisition professional has lived some part of that evolution. Legislation, FAR, protests, IG reviews and reports, best practices and lessons learned. Over time, what is learned can migrate into regulatory language. Not because Congress required it but because acquisition learned something.

But think about it this way...

‍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 working groups to write FAR changes that include parameters and PROCESSES for implementation. These acquisition professionals from across government talk interpretations and context. And sorting out a commonality to that is why 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 is not taken lightly.

Over time, once rules become final and their processes were implemented, they become tied to other processes and you get a series of procedures for things like market research (what determines its enough), acquisition planning (documenting the thought process behind the acquisition), bundling analyses (to ensure it can withstand scrutiny), and documenting acquisition decisions (to ensure the Government followed the process and procedures it said it would along with being compliant with the regulation and laws).

See how those processes and procedures help create a thread of consistency across government?

But that doesn't automatically mean every procedure put into action should remain forever.

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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 you learn? By making bad decisions and getting your neck chopped in a time of threats to your livelihood coming from several directions? Government leadership isn't being real. Behavior isn't likely to include a new level of taking risks in that environment.

Now, I'm not arguing against simplification. Frankly, it is the exact opposite. I've worked with the FAR long enough to know that it contains language that could be easy to understand, better organized, or removed without affecting outcomes. I've wanted a more readable and user-friendly FAR for years. Industry also. In part, the RFO is responding to that need.  And I think that part of the RFO is worthwhile.

But I go back to -- the question isn't whether simplification is good. The question is how we distinguish between simplifying regulations and building better outcomes. It's 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.

Now that “X” has disappeared, what else disappears with it?

Will Contract Specialists and Contracting Officers still have the same training, historical knowledge, management support, and tools available?

But do you notice what's missing in those questions? 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 how to sort those out and not throw the baby out with the bathwater is exactly the responsibility we have as we evaluate the RFO as contracting professionals. We must be honest that, in many cases (and you know you did this) having process to fall back on actually helped with decision-making, efficiency, and consistency.

I’m interested in understanding the role that “nonstatutory requirements” played in the acquisition system. Talking only about statutory information that remains 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 is might still be needed. We need that both perspectives as we move forward reviewing proposed RFO changes.

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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

‍"Shauna, what do you think about the Revolutionary FAR Overhaul?"

It's a fair question.

Sometimes I ask, "Which part?" Then I wait, maybe shuffle around, and take a deep breath.

The reason I ask – and display some body language that shows I’m anticipating the answer -- is because the Revolutionary FAR Overhaul (RFO) isn't one change. It's dozens of changes wrapped inside a much bigger conversation about what the FAR should and shouldn't be.

Depending on who you ask, it's “the most significant acquisition reform in decades”,  a “risky departure from the procurement system we've relied on for more than forty years”, or a big “nothing-burger”. And I understand all of those perspectives.

If you haven't noticed, I do occasionally shoot from the hip. But before I deciding whether I fully agree or disagree with any particular change (proposed or in progress), I want to ask one simply question each time:

‍What problem is the FAR Council trying to solve?

Procurement regulations don't appear or disappear by accident. Some exist because Congress required them. Some were added after GAO decisions exposed weaknesses in the acquisition process. Others grew out of Inspector General findings or years of agencies wrestling with the same recurring problems.

Procurement policy leaders need to admit that much of the language in the FAR that is now being stripped out was put there by them to force consistent behavior and interpretation. THEY PUT IT THERE. And that caused the avenues to innovative acquisition to tighten and close.  Processes and procedural junk has mucked up the FAR long after anyone could clearly explain why they were still there -- except maybe someone like me who has been living the FAR since 1990.  

The biggest challenge RFO writers faced was knowing why something was put in the FAR. But many writers simply did not have the history from the working level, boots on the ground, rubber meets the road perspectives across multiple agencies. It's hard to believe that people who have spent their entire career in a single agency truly understand the way buying is actually accomplished across the Government.

That's why I decided to write Weathering the RFO. Not because I think I already know all the answers. But because I think we're asking the wrong questions about where the RFO takes us now. And it's being sold with an over-simplified message.

It's not about--

"Why did they delete this section?"

"Why did they move this guidance?"

"Why are they shortening this part?"

(I've been catching myself because those are the wrong questions to ask.) Those questions start at the end, not the beginning. To start at the beginning you have to look to Congress.

‍Congress creates procurement policy. That's where intent lives.

The FAR implements it. That's where people tend to muck it up, layer on, and twist that intent more than is necessary.

‍I want to see GovCon start asking a different question:

What are we trying to regulate?  

‍Throughout the proposed rulemaking, the FAR Council explains that its objective is to retain statutory requirements and those processes necessary for sound procurement while removing or relocating other material that has accumulated in the FAR over time. That theme appears consistently throughout the initial set of proposed FAR cases and reflects the broader objective of simplifying the regulation.

But will the removal of nonstatutory processes and procedures drive the desired buying outcomes and behaviors?

To me, that's the more interesting and important question. Process and procedural edicts written into the FAR -- by design, by the way -- have led behavior of Contract Specialists and Contracting Officers for decades.

When process disappears overnight and leadership says "read all this great stuff we've given you to explain what we did", what leads and drives behavior then?

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From the Contracting Officer's Chair

One of the advantages of spending nearly four decades inside the Federal Government system and near all of that in acquisition is that you develop a healthy respect for unintended consequences. I've seen relatively small policy changes fundamentally reshape acquisition practices. I've also seen sweeping change generate months of angst before it quietly moves into the background with very little long-term impact.

One thing that informs how I look at the RFO was working in the policy realm at the end of my career. I got to be a fly on the wall of big regulatory meetings. The discussions on those calls wasn't about the regulation itself but around problems.  

A precedent-setting protest or case.

Agencies' varying interpretations.

Misunderstanding or lack of clarity of a requirement by industry.

Those discussions were all about preventing whatever the thing was from happening again. Putting controls in place through processes and procedures. And that's how a lot of FAR language got there in the first place.

In writing this series I’m reading through the changes with the lens of every position I've held in the acquisition workforce: the purchase card holder, the procurement technician, the Contract Specialist, the Contracting Officer, the Team Leader, the Branch Chief, the Chief of Contracting, the COR, and the Project Manager. I've lived through implementing and guiding others through big and small acquisition reforms. I'm using the experience of best practices, lessons learned, protests, contingency operations, and the “wish I could have done X” moments. I'm sifting through all of those files, moments, conversations, training materials, and experiences on why and how we were taught and shown and did what we did. And...the key...how did we absorb and implement it all as a workforce through process, procedure, behavior, and training? How did we create each new version of normal in a constantly shifting landscape?  

Oh, don't get me wrong. There are changes that I think straight up are dumb, or were overdue. There are many concern me from the position of a small business advocate. And everything else will fall somewhere in between.

Decision-making as a Contracting Officer is about balance. Competition and efficiency. Flexibility and consistency. Innovation and oversight. Speed and stewardship. Those competing priorities have always defined federal acquisition, and they don't disappear simply because the FAR suddenly becomes a shorter version of its former self.

I'm not here to say the RFO is good or bad. That's not because I don't have opinions (because you know I do, if you’ve followed me for any length of time). Anyone who has spent a career in federal acquisition has opinions. It's because good procurement decisions rarely begin with the end. It's all about understanding what we see, and what we don't see.

I hope to get you all thinking about:

-- What was Congress trying to accomplish with each law touching procurement?

-- What was their intent?

-- How has the FAR historically implemented that objective?

-- What did the FAR Council change and why does it believe the change is appropriate?

-- What does it all mean for the people who are making the decisions using these regulations and its guidance?

·        The Contracting Specialists and Contracting Officers.

·        The Program and Project Managers.

·        The Small Businesses Specialists.

·        Small and large businesses.

·        The Agency and industry attorneys.

·        The acquisition leaders at all levels in the organization, particularly those with front line responsibilities to guide the acquisition workforce daily.

Procurement policy lives in the real decisions made every day by real people. THAT....that's the ground zero of the RFO and will determine success or failure.

As an acquisition leader, I rarely acted on the strong initial push or any urge to switch courses right away when the FAR changed. It wasn't resistance. I wanted to understand the problem that the FAR was trying to solve. And I wanted to see how to best tie changes into my critical thinking and decision-making process. Then, it was about helping others do the same.

How did it make my analysis and decision process more solid but still ease my burden?  ‍

That's why I'm not going to focus on the size of the FAR. I want to focus on if we  understand why the procedures that disappeared existed in the first place. Those are two completely different conversations. And I think only one of them tells us whether the FAR Overhaul will ultimately succeed.

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What is Coming Next -- Article Two: What Does "Nonstatutory" Really Mean?

One of the phrases that shows up in every conversation and briefing about the RFO is nonstatutory requirements. Now at first glance, it seems self-explanatory, but I'm not sure it is.

In the next article, I'll try to unpack that phrase and explore why understanding it may be one of the keys to understanding the entire FAR Overhaul.

Watch for it here.

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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

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