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By Brian Hebbel

Marvin Gaye sang the well-known song: “What’s Going On.” This sentiment is one commonly heard related to Government contracting today. Look around: We have the impact of the COVID-19 pandemic; changing Source Selection processes; changing contracting regulations; not to mention a new Presidential Administration. Putting all of these changes together makes it very hard for Government contractors to accurately read the tea leaves to know what Government officials are thinking and how that will impact the competition for new contracts.

Oral Presentations

One of the newer Source Selection processes being used often today, and I expect to see this trend continue, is Oral Presentations. From an “Inside Perspective”, I surmise that contracting officers are using this process for a few reasons, including the ability to down-select based on a brief technical proposal, including experience, prior to Orals. Orals allow an agency tech panel to see the solution and the key personnel in action; there is less paper to evaluate, leading to faster decision making.

This is a whole new world for most contractors. The Step 1 initial proposal review process does save industry time and money in preparation costs. In addition, the Government reduces protests by not eliminating vendors from the competition but rather, telling them their chance of receiving an award based on the initial proposal submission is minimal.

Stage Fright is Real

When it comes to Step 2, the Oral Proposal process, it is a whole new world for industry. A Government contracting Oral Proposal Expert, Julia Munro, told me recently that on various surveys, the number one fear for people is Public Speaking which makes these surveys scarier to people than spiders, snakes, darkness, clowns or heights. That’s pretty amazing. This leaves the contractor faced with a frightening prospect, and the additional burden of having to present virtually to boot.

When I retired three years ago from CMS, I saw a great need to provide industry with training about the “inside Government” perspective. When it comes to Oral Proposals however, this source selection technique has been used only sporadically for a long time and there are no in-depth “inside perspectives”. It is the wild, wild West for the most part, unless you are someone like Julia Munro.

I once heard Julia speak at a Capture Conference. Her expertise is in helping contractors create and prepare for Oral Proposals and a focus of hers for more than a fifteen years. Since Federal officials are now using this Source Selection technique more often, the opportunity to prepare so you and your team do not get stage fright during an oral presentation is critical.

Rule of Two

When it comes to changing regulations, a recent Court Decision on the “Rule of Two”  is going to shutter a lot of contracting officers throughout the Government.

When I functioned in the roles of Contracting Officer, Division Director, and Group Director, it was always a bit confusing when and if I had to receive the small business specialists review (SBS) and/or approval for GSA and/or Agency IDIQ Task Orders. At that point in time, our requirement was that the SBS had to review the acquisition strategy for new procurements (not GSA or IDIQs) to determine if an award would be set-aside for small business. The acquisition strategy would then have to be approved by the Small Business Administration (SBA) Representative.

When it came to GSA task orders (FAR Part 8) or IDIQ task orders (FAR Part 16), that was another story. For the record, prior to my retirement, there was no formal policy within HHS to have either Schedule or IDIQ task orders reviewed by the Agency small business specialist. It is my understanding that has changed since, and now, IDIQ task orders (FAR part 16) have to be reviewed by HHS SBSs. However, there was/is no requirement for GSA Task Orders to be reviewed by the SBS. Sometimes it may be done as a courtesy, resulting from market research initiated by the contracting officer, and other times it may be done to support the Agency’s small business goals. Regardless, a contracting officer is always trying to award contracts in an efficient and expedited manner but each department/agency may differ with respect to fulfilling this role.

Court of Federal Claims

Then along came the Court of Federal Claims (COFC) decision in Tolliver Grp., Inc. v. United States, No. 20-1108C, 2020 WL 7022493 (Fed. Cl. Nov. 30, 2020). This November 30, 2020 court ruling upset the applecart for contracting officers being able to select a FAR Part 16 IDIQ acquisition strategy prior to determining whether the “Rule of Two” applies. In this case, the United States Court of Federal Claims (COFC) ruled that an Agency must conduct a small business Rule of Two analysis before it can use an existing multiple-award indefinite delivery indefinite quantity (MAIDIQ) contract vehicle to procure services.

What Does It Mean?

Based on my experience, this case means that acquisition timelines in Federal Agencies will take longer, and there may be more opportunity for small businesses and less opportunity for large businesses. For certain IDIQ contracting vehicles like CMS SPARC IDIQ this might not be that big of an impact, considering that 24 of the 27 task orders awarded in FY 2020 were set-aside for other than large businesses. Great job supporting small business CMS!

It may take time for contracting officers to apply the Rule of Two on their IDIQ procurements. Considering the impact of the COVID-19 pandemic, in which one agency I know awarded 25% of their FY awards in the last two weeks of the FY, this decision will not help agencies’ abilities to award contracts in a more efficient manner. It now requires one more stop in the Procurement Action lead Time (PALT) to get an acquisition approved. This is not good considering the slowdown I see resulting from COVID.

A New Administration

And now, 2021 begins with a new Administration. How will your targeted agency be impacted? From what I hear, talking to former colleagues with Federal budget office expertise, the tea leaves of the Federal finance offices/budget shops won’t begin to show the future until sometime in April. That leaves us with three more months of uncertainty. However, the agencies need to continue running, so they will continue work on existing contracts and most programs. Stay-tuned!

What does all of this mean? David Bowie might have said it best in his song “Changes”: Every time I thought I’d got it made, It seemed the taste was not so sweet. The next three months may not feel so sweet, but hopefully by the end of FY 2021, each of you have more of a sweet taste than a taste that is sour. All the best in FY 2021.  

About Brian Hebbel

Brian Hebbel had more than 34 years of Federal contracting experience, prior to his retirement in 2017. He was a Senior Acquisition Official (Group Director) at the Centers for Medicare & Medicaid Services, Office of Acquisition and Grants Management. Prior to his retirement, he was the longest serving contracting official at CMS, and provided oversight to three contracting divisions awarding $1,500,000,000 in contract awards in FY 2017 and providing guidance to acquisition strategies and schedules, solicitation requirements, source selection and resolving complex contracting issues. He is an author of “How to Market & Sell to the U.S. Government, A View from the Inside”. Brian is the President of BARC Business Advisors LLC, to Bring Acquisition Results to Contractors (BARC).

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