One of the more intimidating aspects for a contractor new to the federal marketplace is the area of communicating with the Contracting Officer (CO). The Federal Acquisition Regulation (FAR) describes these communications as ‘exchanges,’ and devotes several paragraphs of rules and procedures in FAR Part 15 – Contracting by Negotiation, to explaining them and prescribing limitations and prohibitions for their use. In accordance with the separate phases of the acquisition process, the FAR similarly denotes the different types and timelines of government’s exchanges with industry.
The first phase covers pre-solicitation activities, such as synopses for upcoming solicitations, Requests for Information (RFIs), and unsolicited comments or queries. FAR Part 15.201(c) states that “agencies are encouraged to promote early exchanges of information about future acquisitions. An early exchange of information among industry and the program manager, CO, and other participants in the acquisition process can identify and resolve concerns regarding the acquisition strategy… the feasibility of the requirement… the suitability of the proposal instructions and evaluation criteria… the availability of reference documents; and any other industry concerns or questions.”
Synopses are advanced notices of upcoming solicitations that the CO uses to mobilize industry, generate interest and strive for the maximum available competition. They are required by the FAR (except in very limited circumstances as listed in FAR 5.202) and serve to aid the various contractors in deciding whether or not to pursue the requirement. Moreover, they afford contractors time to develop business options, including partnerships, joint ventures, and financing arrangements prior to attempting business capture.
The CO issues Requests for Information (RFIs) in order to gauge the market interest and capability for an upcoming requirement. They help the CO determine the level and type of competition, and can provide valuable feedback that helps shape the overall acquisition strategy. Additionally, RFIs provide contractors the opportunity to influence the procurement process, by offering information, suggestions and warnings about various aspects of the requirement and the proposed procurement. FAR Part 15.201(e) states “RFIs may be used when the Government does not presently intend to award a contract, but wants to obtain price, delivery, other market information, or capabilities for planning purposes. Responses to these notices are not offers and cannot be accepted by the Government to form a binding contract. There is no required format for RFIs.”
The third pre-solicitation communication results from unsolicited queries or comments from the contractor. FAR Part 15.201(f) states that “general information about agency mission needs and future requirements may be disclosed at any time.” If not related to a specific procurement action, the CO may opt to ignore the exchange, especially when it involves an unsolicited offer. But sometimes, the CO may be looking to add prospective contractors to his contact file, especially if the contractor’s prospectus offers a new or innovative capability. Essentially, the CO has the latitude to disregard communications not related to a specific procurement, but may elect to engage in communications if it proves to be in the best interests of the government. And if the exchange does involve a specific procurement, then the CO must share its contents with the general public, to avoid even the appearance of an unfair advantage for that contractor, as referenced in FAR Part 15.201(f).
In summary, pre-solicitation communications are important, for both the government and the contractor. The government gets to initiate the procurement process, alert industry to future requirements in such a way that maximizes preparedness and competition, and affords the contractors the maximum time for proposal preparation. Contractors benefit from that early warning, as well as the opportunity to ask questions, and when appropriate, to even influence the acquisition strategy and the solicitation that results. In all cases, the communications must be fair, impartial and non-exclusive.
Check out next week’s blog which covers the next phase of “exchanges” – after solicitation.