This month we start a three-part series explaining why it is important for service contractors to understand the Federal acquisition lifecycle. Familiarizing yourself with the path you’ll walk to find, respond to, and possibly win Federal contracts is strategic. Two major advantages to businesses when they understand the lifecycle are:
● Strengthening Government Relationships. The ability to have meaningful conversations with the Government about your targeted contract actions and understand exactly where an action is in its lifecycle and the flow shows you appreciate the process and the work that goes into it from both the Government and industry perspective.
● Going In With Your Eyes Wide Open. Knowing the unique aspects of each phase in the lifecycle and its activities and sub-activities helps understand what the Government is doing and why at each phase. It pulls the curtain back and exposes the inner workings giving you the ability to be proactive, manage time and resources, and develop strategies to mitigate business risks during the process.
The lifecycle of a typical Federal services contract valued over the SAT involves three phases and many steps. The basic acquisition lifecycle for all contract actions is depicted below.
While the Government has several guides outlining either a 7-Step Process or 8-Step Process for Performance-Based Service Acquisitions (PBSAs), they focus heavily on the steps performed by the Government leading up to the solicitation of the requirement and not enough on the specific steps in the process wherein the offeror/contractor becomes involved after submission of an offer and contract execution. For that reason, our discussion will delineate those same processes using the three phases named above for clarity.
Acquisition Planning (Pre-Solicitation)
This phase is performed entirely by the Government before the issuance of the solicitation and includes input from industry as a result of market research efforts from the Government. Tasks in this phase include deciding--
● the Government’s need through market research, development of the acquisition strategy and/or acquisition plan, preparation of a random order of magnitude (ROM) or detailed Independent Government Cost Estimate (IGCE), and budget commitment.
● the Government’s requirements, including preparation of the statement of work (SOW), performance work statement (PWS), or statement of objectives (SOO).
● the extent of competition based on available competition pools and consideration of the use of set-asides to one or more of the Federal contracting assistance programs managed by SBA.
● the factors, criteria, and method of procurement to be used in the source selection process.
● the provisions and clauses for selection and use in the solicitation.
Steps in the Acquisition Planning (Pre-Solicitation) Phase
Legend: I = Integrated Project Team, P = Project Management Office / Requestor, and A = Acquisition Office
The steps, while depicted linearly, may be performed in tandem with those involved in the various steps of the pre-award phase. In the end, these tasks will culminate in an approved acquisition strategy and solicitation document to be published on SAM.gov.
Let’s discuss some specific elements of the Acquisition Planning phase for further understanding.
Market Research (FAR Part 10)
Market research is performed by the Government to “...arrive at the most suitable approach to acquiring, distributing, and supporting supplies and services.” Market research is always used, regardless of dollar value, but the extent of market research varies. Factors such as urgency, estimated dollar value, complexity, and the Government’s past experience making the same/siimilar purchases are taken into consideration.
A variety of market research techniques are available and may be used by the Government, taking into account the factors above and agency regulations and policy. They are:
● Contacting knowledgeable individuals in Government and industry regarding market capabilities to meet requirements.
● Reviewing the results of recent market research undertaken to meet similar or identical requirements.
● Publishing formal requests for information in appropriate technical or scientific journals or business publications.
● Querying the Governmentwide database of contracts and other procurement instruments intended for use by multiple agencies available at https://www.contractdirectory.gov/contractdirectory/ and other Government and commercial databases that provide information relevant to agency acquisitions.
● Participating in interactive, online communication among industry, acquisition personnel, and customers.
● Obtaining source lists of similar items from other contracting activities or agencies, trade associations or other sources.
● Reviewing catalogs and other generally available product literature published by manufacturers, distributors, and dealers or available online.
● Conducting interchange meetings or holding pre-solicitation conferences to involve potential offerors early in the acquisition process.
● Reviewing systems such as the System for Award Management (SAM.gov), the Federal Procurement Data System (FPDS), and the Small Business Administration's (SBA's) Dynamic Small Business Search (DSBS).
The Contracting Officer is allowed to use market research that is conducted within 18 months of an award for orders if the information is still current, accurate, and relevant. However, with large complex acquisitions that are recurring in nature (i.e., Governmentwide Acquisition Contracts (GWACs), Best in Class (BIC) contracts) it is not unheard of for market research to start anywhere from 24 to 30 months forward before the planned award date of a contract.
Acquisition Plan (FAR Subpart 7.105)
Aside from the statement of need, the contents of a written acquisition plan are lengthy at best. As someone who has written my fair share of acquisition plans and been the approving official on others, the list below shows the detailed considerations made by the Government when a written acquisition is required by the agency:
● Requirements for compatibility with existing or future systems or programs.
● Known cost, schedule, and capability or performance constraints.
● Life-cycle cost and how they will be considered, to include the cost model used.
● Design-to-cost objectives and underlying assumptions to include economic adjustment factors.
● Application of should-costs analysis to the acquisition.
● Required capability or performance characteristics.
● Basis for delivery or performance-period requirements.
● Trade-offs among the various cost, capability or performance, and schedule goals.
● Technical, cost, and schedule risks and efforts to reduce risk as well as the consequences of failure to achieve goals.
● Acquisition streamlining plans and procedures.
● Summary of prospective sources of supplies or services to meet the need to include:
○ Required sources of supplies and services (FAR Part 8).
○ SBA Federal Contracting Programs and use of set-asides.
○ Consolidation and bundling and how it may affect participation of small businesses.
○ Market research results.
● Competition requirements in terms of how it will be sought, promoted, and sustained through the acquisition lifecycle.
● Rationale for the contract type selected.
● Source selection procedures to be utilized.
● Acquisition considerations like multi-year contracting, multiple-award contracting, use of orders and/or options, other special contracting methods under FAR Part 17 to be used, special clauses or solicitation provisions, deviations, use of negotiated procurements, and/or lease or purchase of equipment.
● For Information Technology acquisitions:
○ Capital planning and investment control requirements.
○ Internet Protocol (IP) compliance requirements.
○ Accessibility standards.
● Budget estimates and funding sources.
● Product and service descriptions.
● Priorities, allocations, and allotments rationales for urgent requirements with a short delivery or performance schedule.
● Consideration of Office of Management and Budget (OMB) Circular No. A-76 regarding contractor versus Government performance of the work.
● Determination that the work is not inherently governmental (i.e., must be performed by a Government employee due to the nature of the duties performed or work requirements).
● Management systems that will be used to monitor the contractor’s effort, including Earned Value Management Systems (EVMSs) and the methodology to be employed to analyze and use the data to assess contractor performance.
● Make or buy decisions.
● Test and evaluation programs to be employed.
● Logistics considerations.
● Indication of any Government-furnished property to be used during performance.
● Environmental and energy conservation objectives and the applicability of any environmental assessment (EA) or environmental impact statement (EIS) on performance.
● Security considerations to include dealing with classified information, cybersecurity, physical security, and control of data to include Privacy Act Data.
● Contract administration procedures to be used including inspection and acceptance, enforcement of performance criteria, quality assurance, and identification of critical items.
● Other considerations, as applicable, such as:
○ Standardization concepts.
○ Industrial Readiness Program.
○ The Defense Production Act.
○ The Occupational Safety and Health Act.
○ The Support Anti-terrorism by Fostering Effective Technologies (SAFETY) Act of 2002.
○ Foreign sales implications.
○ Special considerations for contracts performed in a designated operational area or supporting a diplomatic or consular mission.
● Additional information related to major systems development or production contracts.
● Milestone schedule for the acquisition cycle.
● Identification of participants in the preparation of the acquisition plan.
FAR Subpart 37.102(a) dictates that performance-based acquisitions are the preferred method for acquiring services (Pub.L. 106-398, section 821) and must be used to the maximum extent practicable except for architect-engineer services, construction, utility services, and services that are incidental to supply purchases.
Did you realize that the Requiring Activity and Contracting Officer documented all those considerations? The Acquisition Plan is the “go-to” document when questions come up later in the acquisition process. I can’t tell you how many times as a Contracting Officer I had to remind the team when someone would get an idea to evaluate some new factor or change the competition pool – “What does the Acq Plan say?”
Competition Requirements
With certain limited exceptions, Contracting Officers are to promote and provide for full and open competition in soliciting offers and awarding Government contracts. Those exceptions include:
● Establishing or Maintaining Alternative Sources
Agencies may exclude a particular source because doing so would increase or maintain competition and likely result in a reduced overall cost for the acquisition, be in the interest of national defense, ensure the continuous availability of a reliable source of supplies or services, satisfy projected needs based on a history of high demand or satisfy a critical need for medical, safety, or emergency supplies.
● SBA Federal Contracting Assistance Programs
To fulfill the statutory requirements related to small business, 8(a), HUBZone, SDVOSB, WOSB, or EDWOSB concerns, contracting officers may set aside solicitations to allow only those businesses to compete with no separate justification needed to do so.
● Other Than Full and Open Competition
The Government may also use other statutory authorities to support other than full and open competition. The Department of Defense, Coast Guard, and National Aeronautics and Space Administration are subject to 10 U.S.C. 3204. Other executive agencies are subject to 41 U.S.C.3304. Contracting without providing for full and open competition or full and open competition after exclusion of sources is a violation of statute unless allowed by one of the exceptions below.
○ Only one responsible source and no other supplies or services will satisfy agency requirements. (FAR Subpart 6.302-1)
○ Unusual or compelling urgency. (FAR Subpart 6.302-2)
○ Industrial mobilization; engineering, developmental, or research capability; or expert services. (FAR Subpart 6.302-3)
○ International agreement (FAR Subpart 6.302-4)
○ Authorized or required by statute (FAR Subpart 6.302-5)
○ National security (FAR Subpart 6.302-6)
○ Public interest (FAR Subpart 6.302-7)
Solicitation Terms and Conditions
Solicitation terms and conditions are prescribed by the FAR and agency FAR supplements (see FedSubK Feature - Agency Supplements: The FAR and Its Child Regulations for more info on FAR supplements). A tip for understanding why a clause is included in a solicitation or contract is to read the prescription and any cross-reference material the prescription points to in the FAR.
The prescription for each provision or clause is found in FAR Part 52.2 and stated before each clause. For example:
Clicking on the hyperlink for the prescription will take you to the FAR subpart that explains the applicability of the clause and likely references to further information related to the clause and compliance.
Terms and conditions-like statements may also be found in the Statement of Work (SOW), Performance Work Statement (PWS), or Statement of Objectives (SOO) about site security, safety, badging, facilities access, and more. Be sure to understand those requirements as well as the compliance and reporting requirements of FAR provisions and clauses.
Under the Christian doctrine, a mandatory government contract clause that was not included in a government contract may be assumed included in the contract by operation of law, even when the clause is not written into or referenced by the contract. For example, under the Christian Doctrine, if the Buy American Act clause was inadvertently left out of a construction contract, the Act still applies to the Federal contract.
Summary
There’s a lot involved in the acquisition planning for a solicitation. Sometimes these steps take years to many months for major systems and highly complex acquisitions. For smaller or routine purchases, they can be accomplished in a matter of 45-90 days. But each new contract for services follows the same general Acquisition Planning (Pre-Solicitation) path.
The next time you talk to the Government about an upcoming acquisition, you can ask about where in the process the action is and know the path ahead. Next month we will talk about the next phase of the acquisition lifecycle; Contract Formation & Source Selection (Award).
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