Are there rules to follow in doing business with the government?
The government spends billions of dollars each year purchasing products and services, some of which your company may be able to provide. However, doing business with the government can be a cumbersome process. It is important to become familiar with the different policies and procedures with which vendors are expected to comply when selling to the government. The Federal Acquisition Regulation (FAR) is the compilation of federal contracting principles and practices. One of the many Web sites with information about the FAR is http:/farsite.hill.af.mil. State and local government agencies typically post their purchasing policies and practices on their own Web sites. Below are some of the most common government contract questions asked by businesses to date.
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How do I find out which agencies buy products and/or services similar to mine?
The Federal Procurement Data Center at https://www.fpds.gov reports statistics on procurement for more than 70 federal agencies. Some federal, state and local government agencies, military installations and prime contractors publish procurement directories and procurement forecasts on their Web sites.
Government contract questions about contracting opportunities and at what dollar threshold?
All federal agencies are required to publicize bidding opportunities on http://www.fedbizopps.gov; when the purchase is expected to exceed $25,000, so anyone with Internet access can find out about these opportunities. The dollar-level requirements for state and local agencies vary, so it is important to research this on each entity’s purchasing Web site.
Do I have to become a registered vendor with the government to win a contract?
The federal government requires the completion of two mandatory registrations: the Contractor Registration Site and the Online Representations and Certifications Application (ORCA) at https://orca.bpn.gov. Both CCR and ORCA are free registrations and must be renewed annually. Many state and local agencies require companies to become registered directly with them to be eligible vendors for contracting. This information typically can be found on the individual agency Web sites.
What certifications does the government offer?
The federal government has socio-economic programs offering certifications for small businesses that could provide contract-bidding preferences. The U.S. Small Business Administration (SBA) handles two certifications for federal government procurement programs: 8(a) Business Development and HUBZone. While completing the above-mentioned ORCA registration for federal contracting, businesses can self-certify that they are any of the following: small business, small disadvantaged business, women-owned business, veteran-owned business and service-disabled veteran-owned business. On the state and local level, each government entity may offer its own certification program. Typically, state and local certifications are Minority Business Enterprise (MBE), Women Business Enterprise (WBE) and Disadvantaged Business Enterprise (DBE). The certification programs offered also will be found on each government entity’s Web site.
Can a business apply for participation in the 8(a) Program if it has not been in business for two full years?
Yes. However, the firm must obtain a waiver of the two years in business requirement by meeting all of the following conditions:
- The individual or individuals upon whom eligibility is based must have substantial business management experience.
- The applicant firm must demonstrate the technical experience to carry out its business plan with a substantial likelihood for success.
- The applicant firm must have adequate capital to sustain its operations and carry out its business plan.
- The applicant firm must have a record of successful performance on contracts from governmental or non-governmental sources in its primary industry category.
- The applicant firm must have, or must be able to demonstrate that it has, the ability to timely obtain the personnel, facilities, equipment, and any other requirements needed to perform on contracts if it is admitted to the 8a certification program.
What is the HUBZone Program?
SBA’s HUBZone program is in line with the efforts of both the Administration and Congress to promote economic development and employment growth in distressed areas by providing access to more Federal contracting opportunities. To be eligible for the program, a concern must meet all of the following criteria:
- It must be a small business by SBA standards
- It must be located in a “historically underutilized business zone” (HUBZone),
- It must be wholly owned and controlled by person(s) who are U.S. Citizens,
- At least 35% of its employees must reside in a HUBZone.
Proposals and Bid Protest Issues
FAR Part 15 – Frequently Asked Questions
What is Best Value?
Best value is the expected outcome of any acquisition that ensures the customers needs are met in the most effective, economical, and timely manner. It is the result of the combination of: the unique circumstances of each acquisition; the acquisition strategy; choice of contracting method; and the award decision. Best value is the goal of sealed bidding, simplified acquisition, commercial item acquisition, negotiated acquisition, and any other specialized acquisition method or combination of methods. Negotiated acquisition techniques used to obtain best value may span a “continuum” from low priced technically acceptable to trade offs between price, past performance and the technical solution.
What is the Best Value Continuum?
A recognition that the Government always seeks to obtain the best value in negotiated acquisitions using any one or a combination of source selection approaches, and that the acquisition should be tailored to the requirement. At one end of this continuum is the lowest priced technically acceptable strategy and at the other end is a process by which elements of a proposed solution can be traded off against each other to determine the solution that provides the Government with the overall best value. Note that all such trade offs are conducted according to the source selection factors and subfactors identified in the solicitation.
Best Value Negotiated Source Selection
Best Value decisions, under the old source selection rules, are now called “Tradeoff” decisions. Tradeoffs are used when it is in the best interest of the Government to consider award to other than the lowest priced offeror or other than the highest technically rated offeror.
What general rules about handling solicitations and proposals have changed?
The uniform contract format remained the same, however the mandatory forms SF 1411 and SF 1448 been deleted. Standard forms are mandatory forms designated by regulation and cannot be modified without approval of the issuing agency. The revised FAR now specifies only optional forms (OF 307, 308, 309) that can be tailored. This eliminates the need for an exemption. However, continued use of Standard Forms is permitted.
Is past performance an evaluation element when you choose a Lowest Price Technically Acceptable source selection strategy?
Past performance is, by statute, a mandatory evaluation element of all negotiated source selections. If the source selection team determines it is a discriminator in a Lowest Price Technically Acceptable (LPTA) procurement, then the criteria by which past performance will be evaluated on a past/fail basis must be articulated in the solicitation. The team can also determine that past performance is not a discriminator and document the record accordingly. One caution regarding the use of past performance on a pass/fail basis is articulated in the rule. If a small business past performance is not acceptable, and their technical proposal is otherwise acceptable, the matter shall be referred to the Small Business Administration for a Certificate of Competency determination.
How can you manage the issue of Certificate of Competency determinations and still evaluate technical proposals on a pass/fail basis?
Choose a strategy where technical proposals are evaluated on a pass/fail basis and the final source selection decision is based on a tradeoff between past performance and price. The Air Force version of this strategy is called Performance-Price Trade-Off (PPT). This is a hybrid of LPTA and tradeoff.
What happened to neutral ratings for no past performance information?
The reference to neutral ratings was removed from the final rule in recognition of the dilemma encountered by both industry and Government in defining the term neutral. The language in the final rule is extracted directly from statute stating, “In the case of an offeror without a record of relevant past performance or for whom information on past performance is not available, the offeror may not be evaluated favorably or unfavorably on past performance.” It is incumbent upon each source selection authority (SSA) to construct the past performance source selection criteria for each particular requirement to conform with the statutory direction.
What can the Government talk to industry about during presolicitation dialog?
Exchanges of information among all interested parties, from the earliest identification of a requirement through receipt of proposals, are encouraged. The purpose of these exchanges are to improve understanding of Governments requirements and industry capabilities. Information exchanged may include the acquisition strategy, contract type, terms and conditions, acquisition planning schedules, feasibility of the requirement and suitability of the proposal instructions and evaluation criteria, including the approach for assessing past performance information. Techniques may include conferences, public meetings, market research, one-on-one meetings, presolicitation notices, draft Requests for Proposal, Requests for Information, and site visits.
What can the Government talk to offerors about, after receipt of proposals if award without discussion is planned?
All proposals must first be initially reviewed and evaluated. If the Government decides that award without meaningful discussions is possible and appropriate, then the Government may decide to give offerors the opportunity to clarify certain aspects of proposals. In addition to what we could previously cover, clarifications now include the relevance of an offerors past performance information and adverse past performance information on which the offeror has not previously had an opportunity to respond. It is important to understand that this requirement does not include the assessments of the Government source selection team of the past performance information available. This addresses the FAR Part 42 requirement that contractors have an opportunity to comment on past performance evaluations conducted by the Government.
What can the Government talk to offerors about, before determination of the competitive range, when award will be made after discussions?
Once the Government decides that a competitive range will be established, communications shall not provide an opportunity for the offeror to revise its proposal, and 1. Shall address adverse past performance information on which an offeror has not had a prior opportunity to comment. It is important to understand that this requirement does not include the Governments “evaluation” of the past performance data received. This requirement only goes to that “data” received by the SSA that was not previously provided to the offeror for review and comment. 2. May only be held with offerors whose exclusion from, or inclusion in, the competitive range is uncertain. The objective is to: enhance the Government’s understanding of proposals; allow reasonable interpretation of the proposal; or, facilitate the Governments evaluation process for the purpose of establishing the competitive range. This is like fact finding.
How do you determine the competitive range?
The previous rule of “when in doubt leave them in” has been replaced with “when in doubt leave them out.” The competitive range shall now include all of the most highly rated proposals, unless the range is further reduced for purposes of efficiency. Firms do not bear the expense of unnecessary bid and proposal expenses when they are not one of the most highly rated offerors.
How will the new competitive range rules impact small businesses?
We do not anticipate that the number of awards to small businesses will change as a result of this rule. Data gathered across the Government has substantiated the fact that competitive awards are rarely made to offerors that are not initially rated as one of the most highly rated offerors, including small offerors.
Do you determine the competitive range twice if you reduce the range further for efficiency?
No. Two competitive range determinations are not required. Contracting officers should first determine which offerors are the most highly rated and then limit the number of offerors in the competitive range to the largest number that will permit an efficient competition. The rationale used to establish the competitive range should be clearly documented in the competitive range determination. Additional competitive range determinations are possible based on the result of discussions with offerors.
What are early debriefings supposed to accomplish?
Early, or preaward debriefings introduced by the Clinger-Cohen Act, are conducted at the offerors request. The purpose of these pre-award debriefings is to provide early feedback to industry concerning why the proposal failed to be competitive. This early debriefing, while limited in scope and content, will provide sufficient information to offerors about their proposal evaluation to allow them to benefit from the exchange and to apply that information to other competitions in a timely manner. Offerors will not receive a comparative assessment of the other offerors proposals in an early debriefing.
What can you talk about during discussions?
The primary purpose of discussions is to maximize the Governments ability to get the best value. You must conduct discussions with every offeror in the competitive range. The objective of discussions is to reach a complete agreement between the Government and the offeror regarding the requirements in the RFP and the offerors proposed solution. In the commercial world, this is often referred to as a “meeting of the minds,” an essential element in the contracting process.
This is the opportunity for the Government to engage in “hard bargaining” to ensure that the Governments requirements are met subject to specific limitations (e.g. favoring one offeror over another; revealing an offerors solution, technology, or intellectual property to another offeror; revealing an offerors price without that offerors permission; revealing the names of individuals providing past performance information; or knowingly furnishing source selection information). While the content of discussions is a matter primarily within the discretion of the contracting officer, discussions must be both meaningful and fair.
To be meaningful, the negotiations must identify all deficiencies, all significant weaknesses and concerns about past performance information received by the SSA. Ensure discussions are meaningful by identifying to the offeror all evaluated deficiencies; significant weaknesses, including weaknesses that when accumulated, increase the risk of unsuccessful contract performance; and other aspects that could be improved to enhance an offerors award potential .
Deficiencies – A material failure to meet a requirement. It is a deficiency whenever the offeror specifically says a requirement cannot or will not be met, offers an approach that clearly doesnt meet a requirement, or submits a proposal that contains a combination of significant weaknesses.
Significant Weaknesses – Include non-cost and cost weaknesses that appreciably increase the risk of unsuccessful contract performance. It is a weakness whenever the proposal has a flaw important enough to cause a factor to be rated marginal or poor, or the probability of meeting a requirement to be rated high risk or moderate to high risk.
This includes even relatively minor weaknesses if their cumulative impact is significant. For example, if an approach affects several areas of the evaluation, but makes no individual factor rating marginal or poor, you should include it in discussions if the cumulative impact is significant enough to affect the overall rating.
Past Performance Information – Include any concern about an offerors past performance, including relevancy and any adverse past performance information on which the offeror has not previously had an opportunity to comment.
Uncertainties or apparent mistakes – Include any suspected errors, significant omissions, and uncertainties necessary to understand what is being offered. Confirm all information obtained through discussions by requesting proposal revisions.
Can the competitive range be changed during discussions?
Yes, it may be amended. The contracting officer must first have had an opportunity to discuss with each offeror, significant weaknesses, deficiencies, and other aspects of its proposal. If the contracting officer then decides that an offerors proposal should no longer be included in the competitive range, the proposal shall be eliminated from consideration for award, and a written notice of the decision provided to the offer.
What happened to Best and Final Offers?
The revised rule allows the Government and industry to tailor the number of requested or allowed proposal revisions to each offerors proposal. This change recognizes the fact that proposals are rarely alike, nor are the depth and range of negotiations.
After the Government has completed discussions with all offerors and has exercised the opportunity to obtain revisions, as appropriate, all offerors shall be given an opportunity to revise their proposals simultaneously.
This final proposal revision opportunity shall use a common cut off date and time to ensure a fair competitive environment, especially for time critical commodities. Most importantly, if after receipt of final revised proposals it becomes necessary to subsequently clarify matters, you can without any additional request for final offers from all offerors. If you need to further expand negotiations, a second final offer opportunity must be extended to all offerors, however, this should be unlikely if the initial revisions are managed well.
What can the SSA rely upon and what must be documented when a source selection decision is made?
The source selection decision shall represent the SSAs independent judgment, although reports and analysis prepared by others may be relied upon. SSA documentation shall include the rationale for any business judgments and tradeoffs made or relied on by the SSA, including benefits associated with additional costs. This documentation need not quantify the tradeoffs that led to the decision.
Whats new with Past Performance?
The rule asserts that the Government will not rely on adverse past performance information that contractors have not had an opportunity to comment on and establishes revised thresholds for collection and use of past performance. The rule also expands the coverage regarding what information can be considered for those contractors with no relevant past performance history, to include key personnel who have relevant experience, information regarding predecessor companies, and subcontractors who will perform major or critical aspects of the requirement.
Were changes made to the way contractors submit proposals?
The new rule has eliminated the need for contractors to submit Standard Forms 1411 and 1448. The SF 1411 was used when cost or pricing data was required and the 1448 accompanied proposals that contained information other than cost or pricing data. Both forms have been deleted and the information they contained may now be submitted in plain paper format.