In our line of work, we regularly litigate protests, appeals, claims, etc., against the Government. But often, procuring and contracting issues can be resolved without the need for litigation–via a little-known method we like to call “talking things out with your CO.” There are also opportunities to communicate with your contracting officers for networking and marketing purposes that many contractors (often unnecessarily) shy away from. This article is the first of three articles that will provide you with some tips for when and how to communicate with your contracting officer at different steps of the procurement process. This article will focus on pre-solicitation and solicitation communications; the next will focus on proposal submission communications; and the third will focus on contract performance communications.
Don’t be Afraid to Ask Questions–Even Unsolicited Ones!
Most of us are familiar with formal Q&As during the Government’s solicitation procedures. When offered, formal Q&As give offerors the opportunity to: (1) clarify ambiguities or uncertainties in the solicitation; (2) encourage amendments or changes to the solicitation; and/or (3) resolve potential protest issues. So, without a doubt, you should always take full advantage of Q&As when they are an option for you.
Many times, the agency is simply unaware of inconsistencies or errors in its own solicitation–typically it wasn’t even the one who wrote it. As a responsible offeror, carefully reading the solicitation and identifying those issues to the agency in a non-adversarial manner can lead directly to their resolution–via an amendment or other change to the solicitation’s terms. A formal Q&A can provide the perfect avenue to address these issues in an amicable setting and, again, even potentially get them resolved.
And one pro tip for formal Q&As is to ask targeted questions to resolve your uncertainties.
But a formal Q&A is not always offered. So, many think, “no formal Q&A means no questions!”
Even if one is offered, the Q&A is almost always limited to a specific window of time. So, another thing we hear a lot is, “if the Q&A period has expired, I cannot ask my questions!”
Well, generally speaking, neither one of these have to be the case! Don’t be afraid to contact your contracting officer before or after a formal Q&A for any questions your have that don’t conveniently fit into the formal Q&A window. Worst case, the Government ignores you or says “no” to giving you an answer. Best case, the Government gives you the answer you need or realizes it must resolve an issue on its own end. As long as the Government is giving all offerors the same information and the same opportunities to revise or fix their proposals, it is fine to reach out with questions or concerns on your own, outside the formal Q&A. Of course, your mileage may vary with whether and how fast the Government responds. But it never hurts to ask.
The FAR explains:
After release of the solicitation, the contracting officer must be the focal point of any exchange with potential offerors. When specific information about a proposed acquisition that would be necessary for the preparation of proposals is disclosed to one or more potential offerors, that information must be made available to the public as soon as practicable, but no later than the next general release of information, in order to avoid creating an unfair competitive advantage. . . When conducting a presolicitation or preproposal conference, materials distributed at the conference should be made available to all potential offerors, upon request.
So, basically, as long as information clarifying the solicitation or its requirements is provide fairly and evenly, the Government should be able to do so (again, provided all the FAR’s improper business practices rules are followed in the process)!
Now, there are, of course, situations where the agency is unresponsive or being a bit difficult when it comes to getting answers or pointing out issues in the solicitation. In which case, the pre-award protest avenue may be the best option. But the point is, you may be able to avoid such litigation by simply asking your questions first!
You May Be Able to Meet One-on-One with the CO for a Solicitation you are Pursuing.
We see a lot of hesitation in our line of work when it comes to contractors marketing themselves to the Government. And don’t get me wrong, there is good reason for such caution–given the bevy of procurement integrity rules out there for federal contracting, of which you should be very familiar in all your endeavors (with conflicts of interest and undue influence, to name a few). But generally, such concerns may not prohibit quite as many communications as many believe they do.
From market research to more general pre-solicitation and solicitation discussions with offerors, the Government has policies in place that actually foster open communication! The Government’s communication policy is set forth in the FAR:
The Government must not hesitate to communicate with the commercial sector as early as possible in the acquisition cycle to help the Government determine the capabilities available in the commercial marketplace.
So, the million dollar question is, when is it ok, and when is it not? Now, that is always going to come down to a fact specific analysis–and one that is often very wise to have counsel guide you through. But there are some great resources out there, that many are unaware of, wherein the Government gives us some guidance on this matter.
In a 2011 Memorandum by the Office of Management and Budget’s Office of Federal Procurement Policy (OMB OFPP), the agency explained that, generally, Government officials can meet one-on-one with potential offerors, provided that none of the offerors receive preferential treatment. The agency noted that many offerors fear that such pre-solicitation discussions could exclude them from participating in the competition. But that is not necessarily the case.
The OMB OFPP explained an important distinction between a vendor working on a solicitation for the Government and other pre-solicitation communications, stating, “a vendor who, as part of contract performance, drafts the specification for a future procurement will almost certainly be barred by OCI rules from competing for that future procurement[.]” But “pre-solicitation communications are generally less structured, less binding, and much less problematic.”
Where a contractor is drafting the specifications for an upcoming acquisition, it is crucial that the vendor provides impartial advice regarding the requirements used to meet the Government’s needs. To do so, the vendor should not be motivated by a desire to win that contract. But as the OMB OFPP explained:
This differs dramatically from the pre-solicitation context, [wherein] the Government is not looking for impartial advice from one source, but is instead looking for a variety of options from a variety of sources, each one understandably, and reasonably, attempting to demonstrate the value of its own approach. These marketing efforts, in themselves, do not raise OCI concerns.
Sure, this memorandum is over a decade old. But it is absolutely worth a read. It is full of helpful nuggets of information just like this one.
So, marketing your company to the government may not be a bad thing–and in fact, can be extremely beneficial for both your company and the Government, as it tries to determine what is out there in structuring its acquisitions.
Promoting your Company to Your Contracting Officer Can Actually Benefit Everyone!
In accordance with the FAR, the Government must conduct “appropriate” market research for its acquisitions. Now, this can take the form of Requests for Information (RFIs), Industry Day, etc.; but the agency has very broad discretion. In a nutshell, market research is used to determine whether (among other things): (i) there are capable sources out there; (ii) commercial items will meet the Government’s needs; (iii) a set-aside will be required, and if so, which one; and (iv) bundling is appropriate. We could definitely talk about market research all day, and won’t do so here, but the point is, when you communicate with the Government about your company’s capabilities, as we have discussed throughout this article, it gives the Government valuable information in structuring its acquisitions.
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So, the takeaway here is that talking with your contracting officer can be hugely beneficial for you, for other offerors, for the industry at large, and even for the Government itself–as long as you aware of and careful to abide by the rules for doing so properly and fairly.
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