Which Parts of the Federal Acquisition Regulation Matter to Small Businesses?

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Which Parts. of the Federal Acquisition Regulation Matter To Small Businesses

Small businesses need to understand the Federal Acquisition Regulation (FAR) #federalacquisitionregulation #far in order to compete on government contracts.  After all government contracting and the Federal Acquisition Regulation is complicated. #governmentcontracting.  It can take years to understand the federal acquisition process.

The Federal Acquisition Regulation, otherwise known as the FAR, is massive.  It contains 52 parts, which detail how government officials write the solicitations and the contracts. However, there is one part of the Federal Acquisition Regulation that is written and pertains to Government Contractors.  Please make sure you stay till the end so that you, which Part of the Federal Acquisition Regulation it is!!! The FAR is more than compliance; it also can give contractors a severe advantage in government contracting.

Understanding how contracting officers build the contracts can help you with your bidding, marketing, and networking.  The clauses and provisions detail what not only you but the government representatives can and cannot do.  Plus, they can help you speak the language of government contracting.

Where to Start?

The first place to start is with the System for Award Management (SAM).  SAM requires that you acknowledge some critical sections of the Federal Acquisition Regulation before you are allowed to compete on federal contracts.  It is important to note that you will have to recognize these FAR clauses contained in your SAM registration at least three times:

  • Initial Registration
  • Each renewal period
  • Each time you compete on a federal contract.

Start by reviewing for Representations & Certifications.  Your SAM profile will not only provide the Federal Acquisition Regulation Clause and title, but it also has a link to the FAR for more information.  Please do not skip this step of reading and understanding each Clause contained in your representations and certifications.  You are responsible for ensuring that not only do you comply but meet the certification requirements.

Describing Agency Needs

Now let’s review Federal Acquisition Regulation Part 11 entitled “Describing Agency Needs.” The first thing that I want to point out is the Policy FAR Part 1.002.    This subpart specifies the procedures for procuring supplies and services.  It also tells you that the government intends to promote full and open competition, or maximum practicable competition when using simplified acquisition procedures for procuring supplies or services.

The only time the government should restrict any solicitation is to the extent necessary to meet the agency’s needs or as authorized by law.  Why am I bring this up?  Because you need to understand that the government wants full and open competition always to get the best price possible.  You must keep this in mind, especially if you are an 8(a) contractor.  Even if you are not an 8(a) contractor, it helps understand the government’s mindset.  Knowing this can help you when marketing to the government.  You can bring up ways your product or service can save the government money, time, or even streamline processes.

Use of Brand Name or Equal Purchase Descriptions

The next subpart 11.104, is “Use of a brand name or equal purchase descriptions.”  When the Government wants to purchase a brand name product, it must include not only the brand name but also a general description of the physical, functional, or performance characteristics of the brand name item.  Also, the Government needs to make it clear in the solicitation that an identical item would be acceptable if it meets or exceeds the specifications.  Thus contractors can provide an item as long as it is equal or better than specified in the solicitation.

Many small businesses will run into the following problem when trying to bid on items through the Defense Logistics Agency (DLA) DIBBS (DLA Internet Bid Board System) system.  When you go into the system, you can see the solicitation but not the technical data as it is locked.  To be able to review the technical data, you need to have a certification first.  This certification is called the Joint Certification Program or JCP for short. 

So, when reviewing solicitations, be sure to check the technical data so that you know if the product that you are providing is equal to or better than the goods needed by the government.

What if the Item is Peculiar to One Manufacturer?

The government cannot write a requirement for a particular brand name, brand, or feature of a product that is peculiar to only one manufacturer because it does not allow consideration of a product from another manufacturer.  However, as with everything in life, there is always an exception.  The government can write a solicitation for a specific product IF the other products lack a particular feature, do not meet, or be modified to meet, the agency’s needs.  Now the government can solicit a good that is limited to one manufacturer if they obtain approval, and the acquisition is above $25,000. 

Bio-Based Products Federal Acquisition Regulation 11.302

If you sell bio-based products, then you need to be familiar with Federal Acquisition Regulation 11.302.  Government agencies cannot require you to provide more data than would be typically offered by other business entities providing products for sale to the agency, other than data confirming the biobased content of the product. For more information, see 7 CFR 3201.8.

Special Requirements for Paper. Federal Acquisition Regulation Part 11.303

When agencies want to purchase paper, they must follow FAR 11.303, which states that 30% post-consumer fiber content standards, as I mentioned before, there are always exceptions.  The government can use paper with less than 30% as long as it has more than 20% post-consumer fiber. And pricing is reasonable, and the paper meets the performance requirements.   The government can use paper as low as 20% post-consumer fiber when the other paper jams in the printers or causes the printer not to function as intended. 

Things to think about with Delivery Schedules. FAR 11.402

The solicitations need to state the time of delivery or performance requirements clearly.  Contracting Officers are to ensure that these schedules are realistic and meet the requirements of the acquisition.  These solicitations with short or difficult to attain schedules restrict competition are inconsistent with small business policies and result in higher contract prices. See Federal Acquisition Regulation Part 11.402 for more information.

 

General Delivery or Performance Schedule

When establishing a contract delivery or performance schedule, the government needs to look at the following factors:

  1. The urgency of need;
  2. Industry practices;
  3. Marketing conditions;
  4. Transportation time;
  5. Production time;
  6. Capabilities of small businesses
  7. Administrative time of obtaining and evaluation offers and for awarding contracts;
  8. Time for contractors to comply with any precedent to contract performance; and
  9. Time for the Government to perform its obligations under the contract, i.e., furnishing Government property.

As you can tell, many factors go into developing a delivery or performance schedule. Now let’s look at what needs to review when developing a construction delivery schedule.

Construction Performance Schedule Federal Acquisition Regulation part 11.402(b)

Now let’s look at the construction industry.  When the Government is establishing a completion time on a construction contract the contracting officer has to look at the following factors:

  1. Nature and complexity of the project;
  2. Construction seasons involved;
  3. Required completion date
  4. Availability of materials and equipment;
  5. Capacity of the contractor to perform; and
  6. Use of multiple completion dates.

A contract may have many completion dates depending on the items of work required. Any changes to the completion date of one task may impact the completion date of other tasks. 

Now we will look at Supplies and Service Schedules.

Supplies or Services Schedules FAR Part 11.403

The contracting officer may express contract delivery or performance schedules in terms of

  1. Specific calendar dates;
  2. Or Specific periods from the date of the contract; i.e., from the date of award or acceptance by the Government, or the date shown as the effective date of the contract;
  3. Specific periods from the date of receipt by the contractor of the notice of award or acceptance by the Government (including notice by receipt of contract document executed by the Government); or
  4. A specific time for delivery after receipt by the contractor of each individual order issued under the contract, as in indefinite-delivery type contracts and GSA schedules.

Now the Government should not curtail a contract against the contractor if the delay is due to the Government not providing the notice of award.

Delivery Schedule Federal Acquisition Regulation Part 11.403(d)

If the delivery schedule is based on the date of the contract then the contracting officer must mail or otherwise furnish to the contract, notice award, acceptance of the proposal, or other contract documents not later than the date of the contract.

Invitation for Bid (IFB) FAR 11.403(e)

For Invitation for Bid contracts the delivery schedule is based on the date of the contract and a bid offers delivery based on the date the contractor receives the contract or notice award.  Then the contracting officer must add 5 calendar days (as representing the normal time for arrival through ordinary mail.). Now if the contract or award notice has been electronically transmitted the solicitation has to state that; and the contracting officer has to evaluate the delivery scheduled based on the date of contract receipt or notice of award by adding one-working day.

Simplified Acquisition Procedures (SAP) Federal Acquisition Regulation FAR Part 13

The government often has to speed up and simplify their acquisition.  This is a great benefit to small businesses as it makes it easier to win government contracts.  Acquisitions below $250,000 are considered eligible for simplified acquisition procedures. Here are the benefits of the SAP:

  1. Reduced administrative costs;
  2. Improved opportunities for small, small disadvantaged, women-owned, veteran-owned, HUBZone, and service-disabled veteran-owned small business to obtain government contracts;
  3. Promote efficiency and economy in contracting; and
  4. Avoid unnecessary burdens on agencies and contractors

It is important to note that agencies can elect to use the following contract options for solicitations under the SAP.

  1. Required sources of supply (Federal Prison Industries, Committee for Purchase from People Who are Blind or Severely Disabled, and Federal Supply Schedule contracts);
  2. Existing IDIQ contracts; or
  3. Other established contract.

Now what is nice about the SAP is that the acquisitions of supplies or services that have an anticipated dollar value above the micro-purchase threshold, but at or below the Simplified acquisition Threshold must be set aside for small businesses.

For more information on please see FAR 13

Another Federal Acquisition Regulation Reference FAR 15 Contracting By Negotiation.

As a government contractor, you are going to want to become an expert on FAR Part 15 Contracting By Negotiation.  This part of the Federal Acquisition Regulation discusses the following:

  1. How solicitations for full and open are developed?
  2. Analyzing proposals
  3. How offers are ranked?
  4. What makes up a responsive bid?

As you can tell this Federal Acquisition Regulation reference can be instrumental in developing your proposal, how to rank well on your proposals, and ensuring that your bid is considered responsive.

As a small business you need to become familiar with Government Contracting Small Business Programs FAR Part 19. These programs include the 8(a) Business Development seta-sides which has a 5% prime contracting goal; The  HUBZone Program with a 3% prime contracting goal; the Women-Owned Small Businesses with a 5% prime contracting goal; and Service-Disabled Veteran Owned Small Businesses which has a 3% prime contracting goal..  If you are certified in one or more of these programs then you are going to want to become familiar with FAR Part 19.

Next up is Sole Source Contracts, which contain in Federal Acquisition Regulation Part 19.  Remember that there will be situations when small businesses can benefit from streamlined “sole-source” contracts.  These contracts do not have to go through traditional processes.  You need to understand the circumstance when a sole source contract can happen.

Labor Laws – Government Contracting FAR Part 22

As a government contractor, you will have to understand the applicable labor laws that apply to government contracts.  These labor laws are outlined in FAR Part 22.  The labor laws can be different depending on the industry that you are in.  If you are in the service industry, you will want to pay attention to this FAR Part.  Wage Determinations is the minimum wage as determined by the Department of Labor.  You must pay any workers working on a federal contract a salary designated by the Department of Labor. The Davis Bacon Act applies to construction contracts above $2,000.  You will need to become well versed in this Act if you are in the construction industry.

Up next is Federal Acquisition Regulation Part 44 – Subcontracting Policies and Procedures.

Many government contractors have gotten started as a subcontractor.  The list of applicable FAR references would not be complete if I did not include FAR Part 44 Subcontracting Policies and Procedures.  Contracting Officers must approve all subcontractors.  There is actually a checklist that they use for the approval process.  This checklist is contained in FAR part 44.  Also, depending on the product’s usage in your contract, you may or may not have to declare the manufacturer as a subcontractor.

Quality Assurance FAR Part 46.

The Government takes quality assurance very seriously.  They have to as they do business with all types of entities.  The government has to have a way to guarantee quality or they would be putting themselves in situations with subpar deliverables.  See FAR Part 46 for more information. 

Let’s face it quality assurance for products differs from quality assurance on services.  In fact, the Government has a separate checklist for each type of contract.  Check out FAR Part 46 for the checklists that you will need.

Quality Assurance Surveillance Plans known as QSAP. It falls upon the government to create Quality Assurance Surveillance Plans but because they are not an expert in your field, they may ask for your contribution to this plan.  You may be able to point out flaws in their plan.  In contrast, understanding the government’s provided QSAP will help you better meet their needs.

Federal Acquisition Regulation Part 52 Clauses and Provisions

Now on to FAR part 52 Clauses and Provisions.  The Federal Acquisition Regulation Part 52 applies to government contractors, whereas all other parts of the FAR apply to government officials.  All solicitations will have clauses and provisions from FAR Part 52 referenced.  The references will be a series of numbers with short titles.  Once you find them in the solicitation, you need to see them in the FAR.

FAR Part 52 is enormous.  One of the provisions and clauses it covers pertains to Ethics.  Ethics is big in government contracting.  After all. You are dealing with matters of national importance once you enter into a government contract.  For this reason alone, you need to understand the ethics clauses contained in FAR Part 52.

In addition to the ethic clauses FAR Part 52 also contains pricing standards.  Here are a few pricing considerations included:

  • Invoicing
  • Fast Payment Procedures
  • Taxes

Also, FAR Part 52 contains bidding clauses and provisions.  As you can imagine, this will affect every offer that you submit.  Following the instructions is a make or break for government contractors. 

And More

I have, by no means, provided an exhaustive list of policies and procedures.  After all, the FAR contains over 1,800 pages and varies depending on the agencies’ needs.  This list, however, will get you started.  I am sure it will take you a few weeks to get through all parts of the FAR that I have listed today. 

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