Master the Far and Go Further

I have a confession to make. For the first 20 years I was in federal contracting, I had almost no interest in understanding the FAR, the Federal Acquisition Regulation -- the rules and regulations that under gird how the government buys stuff. The FAR governs how agencies buy everything from paperclips to aircraft carriers. It is a remarkable body of regulations. My relationship with the FAR has evolved from contempt to appreciation— maybe you will see yourself in the 4 chapters of my story.

Chapter 1: Keep that thing FAR from me! I figured, why try to figure something out that is so dense and complex—leave it to the experts. My job was just to write the winning proposal, which meant craft the technical volume, and figure out the cost inputs so my pricing specialist could build a budget. Once we had the contract, as the technical lead on execution I focused my energy on doing that well. Most of the time I tried to avoid learning about the details of all the contract-ese and regulations that go with a federal contract and count on Jason, my contracts manager, to keep me out of trouble. Sometimes I would try to figure out the work-arounds to the contract requirements so that Jason would stop bugging me with details. I was especially devious when it came to procurement of vendors and subcontractors. Who wants to bother with all those procedures? I know who I want to work with, after all! And honestly, I resented all of the rules and documentation requirements that went along with them.  

Chapter 2: Trouble comes our way. Then the company where I had worked for 13 years ran into trouble with its primary government agency for a violation of procurement rules, and was put under suspension. If you have ever been in a contractor under suspension, you know how scary that is. Not only can the government no longer award new contracts, they cannot execute any contract actions –including option years in your current contracts. Think about how that affects cash flow, credit worthiness and eventually the ability to make payroll. My company had won a competition for a huge multi-year contract with the Department of Education; and the day before the CO was to sign it the suspension hit, and there was no jolly signing ceremony in the conference room that day. Dozens of employees associated with that contract needed to find a new job. Proposals we were working on had to be shelved. Suspension feels a lot worse – a LOT worse – than simply losing a bid, or losing a contract because of a protest. Eventually the only way the company could get out from under the suspension was to allow itself to be acquired.

Chapter 3: Compliance>>Peace. I then joined a publicly traded multi-billion-dollar government contractor that made full compliance Job 1.  Their proposal and contracting shops followed all the rules and procedures to the hilt and we were reminded over and over again that full adherence was expected of each of us. After my previous experience, I learned to appreciate the peace of mind that comes from knowing the rules and following them.

While I was there, my new employer was unexpectedly found to be in violation of federal competition regulations: a senior leaders used inside information from his previous job as a Fed to the advantage of the company. But because this company had such a stellar reputation for compliance and for having strong systems and procedures in place, it was not difficult for them to prove that this person was a lone operator; and consequently the sanctions to the company were limited and short-lived.

Chapter 4: The FAR is my Friend. Then I became an independent consultant for small companies, including more than a few businesses that are completely new to the federal market. Because they know so little about how government contracting worked, to be of value to them I had to know more about the FAR. Jason, you see, was no longer available to me. I sure didn’t want them to run into compliance problems on my watch.  

One of my 2020 resolutions was to get more conversant on how the FAR works. I don’t aspire to replace Jason, only to be able to confidently answer the simple questions and to recommend an expert for the subtler ones.

I also recently received a book as a gift, Government Contracting In Plain English by Christoph Mlinarchik. tThis book is an easy read for a non-lawyer like me, and it explains the most important concepts in federal contract law. For instance:

The FAR is not written to apply directly to federal contractors, but rather,to the government procurement professionals who procure goods and services for the government. This means that not all of the FAR applies to your contract, because the FAR’s purpose is to guide (via “prescription clauses”) the government’s contracting professionals about when to insert specific clauses into a contract. A prime contractor can dispute that insertion by citing the relevant prescription clause.

The FAR applies even less to subcontractors. A subcontract is an agreement between two commercial entities, and as such is not directly governed by the FAR. Beware of prime contractors who tell you that they are going to incorporate all the requirements of their contract with the government into your subcontract. Some FAR requirements have to flow down, and some do not. If someone inserts a FAR clause into your subcontract you can refer back to the relevant prescription clause or the prime contract to see if it is really has to be there.

The 7 justifications for a sole-source award are clearly stated in FAR Sub-Part 6.302. How many times have I had a client or co-worker suggest that we can just get the government to sole-source work to the company?  If your sale does not meet one of these FAR criteria, then don’t ask! Or get your company qualified for one of the SBA set-aside programs covered in FAR Part 19.

Simplified Acquisitions are the New Contractor’s Friend. Under FAR Part 13, the government can award a contract under much reduced competition requirements (and these are intended to benefit small businesses.) What a great way to get a past performance reference in an agency!

Don’t Sound like a Fool! Know How to Talk about the FAR. You know how when you know a particular subject re-e-e-ally well, you can tell when some fast-talker is bluffing because they don’t know the lingo? The FAR is divided into “Parts”: FAR Part 15 on Competitive Proposals, and the FAR Sub-part 13.2 on Micro Purchases. Within Sub-Parts are sections and sub-sections. I don’t want to sound foolish and refer to “FAR Sub-Part 33.1 Protests” as “FAR Part 33.1.” Then everyone will know I am an impostor!

Thank you for reading to the bottom of this admittedly geeky blog post. My appreciation for the FAR and how to use it to my advantage – and the advantage of my clients – grows by the day. I hope you will take take the time to bone up on your Parts and Sub-Parts!

How about you? What are some of your FAR experiences? What part or Part of the FAR do you find most surprising and useful? Let me know in the comment box below.