Expert Analysis

5.003 Governmentwide point of entry.

The official Government Point of Entry is found at https://www.fbo.gov/


5.202 Exceptions.

FAR 19.5 provides details around small business programs: https://myfar.io/subpart/19.5


5.601 Governmentwide database of contracts.

There are many methods of identifying Government requirements, some paid and some are free. One piece of information that is often overlooked can be found at FAR 5.6 "Publicizing Multi-Agency Use Contracts"

This is a free to use Governmentwide database of contracts and other procurement instruments intended for use by multiple agencies and is available at https://www.contractdirectory.gov/contractdirectory/

Postings to this site should be made within ten days of award of a Governmentwide acquisition contract (GWAC), multi-agency contract, Federal Supply Schedule contract, or any other procurement instrument intended for use by multiple agencies, including blanket purchase agreements (BPAs) under Federal Supply Schedule contracts.


6.300 Scope of subpart.

There are 7 exceptions to competition, the most commonly used exception is FAR 6.302-1. The FAR requires an agency to post its intent to sole source and the justification for doing so at the Government Point of Entry (GPE) which is officially: https://www.fbo.gov/


8.402 General.

Having a GSA scheduled can get you into competitions run under FAR 8.4 and make for streamlined acquisitions. Take a deep breath, the process can seem daunting. If you are a small business unfamiliar with working with the federal government, it may be worth while to bring in outside expertise to get you through the process, but be wary of extremely high fees it isn’t really that hard, and it definitely doesn’t guarantee you work. There are other considerations too, such as required past performance and continued success criteria to maintain your schedule. If you sell hardware it is a “must have” but for services a company should consider when it makes sense to make this investment.


15.000 Scope of part.

Beware overuse of FAR 15

The overuse of FAR 15 and FAR 15-like procedures is part of the problem when it comes to streamlining acquisitions. While appropriate for highly complex acquisitions, before selecting FAR 15, consider what you are buying. Also, beware of "borrowing" FAR 15 best practices. GAO has long maintained that when an agency chooses to use FAR methods in other acquisitions (such as FAR 16.5) that it then be beholden to those standards.

For agile development services, you should then consider FAR 12 and 13 to make things more manageable. FAR 12.102 is applicale for the acquisition of supplies or services that meet the definition of commercial items at 2.101.

FAR Part 13 "Simplified Acquisition Procedures" prescribes policies and procedures for the acquisition of supplies an, including R&D. Now consider subpart 13.5 provides special authority for acquisitions of commercial items exceeding the simplified acquisition threshold but not exceeding $7 million. That is a lot of R&D.

Moreover, besides making a host of clauses and provisions inapplicable and therefore more approachable to non-traditional vendors;

FAR 13.103 calls for the use of standing price quotations. "Authorized individuals do not have to obtain individual quotations for each purchase. Standing price quotations may be used if— (a) The pricing information is current; and (b) The Government obtains the benefit of maximum discounts before award."


15.101 Best value continuum.

FAR 15.101 Best Value

All acquisitions conducted under FAR 15 are considered "best value." Lowest Price Technically Acceptable (LPTA) and Tradeoff are both intended to provide the best value given certain constraints.

Specifically, "An agency can obtain best value in negotiated acquisitions by using any one or a combination of source selection approaches. In different types of acquisitions, the relative importance of cost or price may vary."

For those who wonder, why an agency would ever consider LPTA, the FAR provides insight into that decision.

"For example, in acquisitions where the requirement is clearly definable and the risk of unsuccessful contract performance is minimal, cost or price may play a dominant role in source selection. The less definitive the requirement, the more development work required, or the greater the performance risk, the more technical or past performance considerations may play a dominant role in source selection."

LPTA can and should, have rigid technical qualifications, however, the agency may not make the decision to pay more for capability beyond what was required.

Tradeoff is, however, is preferred when the government would benefit from selecting other than "the lowest priced offeror or other than the highest technically rated offeror."


15.101-1 Tradeoff process.

"Apples to Apples comparison" this phrase is used constantly for describing how the source selection must be set up.

But what if I don't want to compare apples to apples? Maybe I want to consider the virtues of apples as it compares to bananas or pineapples. The point is, if I tell vendors exactly what I want and let them tell me "how they would do it and for how much" I am not evaluating the vendor as much as my requirements. A disparity in pricing says more about the clarity of my requirements then the competitiveness of the offer.

Instead I should describe my vision, my objective, and how much I am will to invest initially. Only then can I really asses a vendors unique capability for meeting my needs. Instead of having them bring me a rock and guessing what I want to pay I would prefer they bring me what they consider the best tool for the job at a price I am willing to pay.

Value is not the cheapest way to get it done, it is getting the most done for what you are willing to pay.


15.200 Scope of subpart.

Exchanges with Industry

Are you taking advantage of FAR 15.201 "Exchanges with industry before receipt of proposals?"

FAR 15.201 (a) encourages information exchanges from identification to proposal receipt between interested parties, including "end-users."

FAR 15.201(b) identifies the purpose of the exchanges are to improve understanding of both the requirement and industry capabilities, and to help industry judge how and if they can meet the requirements.

FAR 15.201(c) encourages early exchanges to resolve concerns regarding "acquisition strategy, including proposed contract type, terms and conditions, and acquisition planning schedules; the feasibility of the requirement, including performance requirements, statements of work, and data requirements; the suitability of the proposal instructions and evaluation criteria, including the approach for assessing past performance information; the availability of reference documents; and any other industry concerns or questions."

If you are not taking every advantage alloted to shape an acquisition and learn what is really being asked, there are likely 2 reasons; fear of being judged by the government or colleagues or you were unaware that you could; the former is foolish, that latter is no longer the case.


15.201 Exchanges with industry before receipt of proposals.

Ask hard questions! The government has no ability to punish you if you hurt their feelings by asking really hard questions during the acquisition process. If you see a mistake or inconsistency, trying to guess what the government intended will almost always backfire. I promise you will not be blacklisted from an acquisition, that is not a thing. Even if the person who wrote the document did take it personally they are rarely on the evaluation board and even so they are surrounded by a group of peers and an enormous bureaucratic structure that rarely would allow such pettiness into the process (yeah win one for bureaucracy). I know the temptation is to save face or protect your strategy from potential competition too, but that is a major gamble. Asking a hard question that clarifies what the government really wants will help you more than “tilting y hand” might ever harm you. In fact, by not clarifying, even if you guess right your solution may be out of scope of the written requirement; the result, even if the government is impressed with your approach they may not be able to accept it (at least not without modifying and restarting the process). So there you have it Yes selling to the government is hard, but understanding how the system works can save time and money (and hopefully help win some opportunities). No this isn’t all of the hacks, but hopefully this can help a few companies avoid making some major mistakes and even more importantly help the federal government by getting great solutions delivered to the American People!


16.000 Scope of part.

The Best Contract Type

What is the best contract type for agile development? This is sort of like asking which wine to pair with meat or fish? Well that may depend on whether your'e cooking with it or drinking it alongside. Even then it is largely up to the end user. Of course this may be a bit more complicated with regard to contract type since the implications go far beyond your tastebuds. I suppose the best way to answer this question is to start with your options. FAR 16 "Contract Types" provides all of the contract types available and recommendations on when to (and in some cases when not to) use them. In the interest of brevity I will not list them all here. I will discuss the two main types that seem to be circulating most predominantly within agile discussions.

Labor Hour or Firm Fixed Price? Labor hour contracts (e.g., Time and Materials) requires the contractor to deliver their best effort for a specific number of hours typically with predefined labor categories. Firm Fixed Price (FFP) can either be a fixed price for a defined deliverable or service. For the sake of this conversation I will be focusing on the latter. So which is better? Well the answer really is, it depends. In my experience Labor Hour contracts are better when you already have an existing team (government or contractor) and you are looking to augment the existing skill-sets. In this case you assume the process is already defined and you can specify the unique skill-sets you need and for how long. But let's say you do not have an existing team, either you are standing up a new project or are rolling an existing waterfall program into an agile one. In this case you should leverage industry's expertise and not attempt to define the process, labor categories, or hours. Instead focus on your overarching objectives. I refer you to FAR 37.6 "Performance Based Service Acquisitions" (PBSA). Let the vendors bid their unique solutions to meet your objectives using a Performance Work Statement (PWS). Per FAR 39 "Acquisition of IT" use modular contracting or incremental builds for IT. In applying these concepts, under this scenario, I would recommend the use of a FFP based on a fixed price per iteration.

Allow the vendors to propose their process, their team, and their price to deliver a repeatable process resulting in functional code. This code will be based on User Stories at the start of each iteration, ensuring that each release (6-8 weeks) you are providing the end-user with useable code based on their priorities within the overarching scope/objectives. So which is better, red or white, FP or T&M? The answer may simply be in how you intend to use it and which will provide the best experience to the end user


16.402-4 Structuring multiple-incentive contracts.

Incentives drive behavior and artificial incentives tend to drive one behavior at the expense of another resulting in unintended consequences.

If the behavior you truly are looking for is high performance overtime as defined by quantity (code or physical), quality, and cost; then incentives should align to the providers self-interest to maintain all three. If you incentivize one over the other then the unintended consequence will be the compromise of one for the benefit of the other. Unless you truly value one greater, then you must ask yourself, "what incentive would drive all three equally?"​

Answer: The opportunity to continue to deliver in an environment that enables success.


19.201 General policy.

The "Rule of Two" as it is commonly referred to, is a statutory requirement to set aside an acquisition where there is a reasonable expectation that two or more small businesses are capable and interested in bidding.


19.701 Definitions.

For a small business interested in getting into the federal space there may be a strong desire to want to be the “prime contractor” and really showcase your company. There are a lot of good reasons to want to be the prime, such as for past performance, direct customer engagement, avoiding past through costs to improve competitiveness, and general control over the contract. However, before you dig your feet in on this one, consider that proposing as a subcontractor has its advantages as well. First, if you are unfamiliar with working for the federal government, having a large prime contractor can take a lot of the burden off your company. This is not only in the business capture phase but also in execution. I know it may be frustrating but a small prime can develop past performance for future acquisitions and build strong relationships and reputation within an agency if you deliver. Second, as mentioned above, government requirements change and it is easy to find yourself overwhelmed or under water. Having a partner with a strong bench can be useful in ensuring successful delivery (which is what this is all about).


32.703-3 Contracts crossing fiscal years.

Are Agile Development contracts severable?

Severability is a very important term in government contracting as it governs how contracts are funded and potentially how contractors are reimbursed.

Simply put, a severable contract is one in which performance could stop and the government will be whole at that point, typically services.

Nonseverable contracts require full performance and completion for the government to receive value, think waterfall systems.

If agile development is a repeatable process for the delivery of a functional product, which is it? This depends largely on how the contract is structured. Fundamentally I would argue that it is severable, in that each iteration delivers functional product; if at any point the development stops, the Government should have functionality that is not dependent on additional development. T&M is clearly severable, as it is the best effort.

However, you could argue that each iteration is itself a completion item which is nonseverable (timeboxed). Therefore if the contract were FP per iteration then each iteration would be nonseverable (they could essentially be viewed as individual options), but the larger contract is actually severable in that completion is not dependant on future iterations.


34.201 Policy.

Agile EVM

Yes you can implement EVM on an agile program, the question you should be asking is , "should you?"

Reporting such as EVM was designed to make sure we are getting what we are paying for. I often tell folks, " I do not need a report to tell me I ate lunch, I ate it and I am either satisfied, or I am not"

If you are delivering on a regular cadence and evaluating the quality of the delivery, excessive reporting adds little value. Of course if you are using a cost reimbursement model (I will address my view on this in a different post) then you should absolutely track you spending, but it should be against your return on investment not tied to an integrated master schedule.


39.000 Scope of part.

The General Accountability Office (GAO) issued a formal opinion on the use of agile and modular contracting. The report can be found at http://www.gao.gov/assets/600/593091.pdf


39.102 Management of risk.

By its very nature, the use of modular contracting reduces risk, because you are not locked into a solution for extended periods, vendors are incentivized to provide top performance.

Combining with iterative development, the modular contracts can focus on delivering the highest value functionality first. This means, that even if you run out of time or money, functional products have been delivered to the end user.


39.102 Management of risk.

Reducing risk can be accomplished through shorter periods of performance. This encourages the vendor to provide peak performance to receive future option periods. Additionally, this allows the agency to make modifications, if necessary, to future option periods based on lessons learned.