There are four sources of authority which every federal proposal professional must understand and be able to explain to clients. These market research resources for government contract proposal managers are statute, regulation, policy, and court decisions.
You need to know these concepts because they affect the request for proposal (RFP) or solicitation format, offer and negotiation process, and the client’s behavior in selecting or not selecting your proposal. Millions of dollars are at stake! Don’t lose a big effort because you don’t understand the rules.
By Christoph Mlinarchik, JD, CFCM, PMP | Owner, www.Christoph LLC.com
Statutes, laws, or legislation
Statutes are legislation passed by Congress and their catchy names usually end in “Act.” Examples include the National Defense Authorization Act and Competition in Contracting Act. When permanently codified in the United States Code, each Act will be assigned two numbers which sandwich the abbreviation, “U.S.C.,” which stands for United States Code. The first number refers to the Title in the U.S.C. and the second number refers to either the Chapter or the Section in the U.S.C., for example, 41 U.S.C. §7101.
Look out for: The National Defense Authorization Act (NDAA) is published annually, and it almost always affects government contracts in a big way. Search for key words in your industry, like “information technology” or “cybersecurity.”
Are you trying to win more government contracts? Need help with your proposal or capture strategy? Hire an expert to give you valuable insights and save you the time, cost, and frustration of big problems in the future! Contact Christoph@ChristophLLC.com for expert advice in government contracts.
Similar to statutes, regulations have a numbering system. Regulations are not legislation passed by Congress. Instead, regulations are promulgated by Executive Agencies. Regulations are more specific than statutes, because they implement the broader statutes passed by Congress. For instance, the Competition in Contract Act is implemented in several sections of the Federal Acquisition Regulation (FAR).
The FAR is the most important regulation for federal proposal professionals. The FAR is found at Title 48, Chapter 1 of the Code of Federal Regulations. A general citation to the FAR is 48 C.F.R. Chapter 1. A precise citation to FAR 13.500 is 48 C.F.R. §13.500.
Look out for: Watch the Federal Register, which tracks and publicizes changes to the FAR. Follow closely any changes to solicitation provisions or contract clauses, such as those found in FAR Part 52.
Court decisions include federal courts like the Court of Federal Claims, the Court of Appeals for the Federal Circuit, the Supreme Court of the United States, and various state or federal courts where government contracts or private (subcontractor) disputes may be adjudicated. Court decisions also include quasi-judicial forums like bid protests at the Government Accountability Office (GAO) or the various boards of contract appeals.
Look out for: GAO decisions affect critical stages of the proposal process, like solicitation rules, evaluations, and negotiations (called “discussions” in GAO parlance). You can sign up for a daily digest of the GAO bid protest decisions here. If you email me, I will send you a free copy of my bid protests article, which won “Best Article of the Year” from National Contract Management Association (NCMA).
Policy is the wildcard
Policy is the most nebulous and confusing source of authority, and the most dangerous to the proposal professional. There are several policymaking bodies for the federal government. Office of Federal Procurement Policy (OFPP) issues policy for all federal contracting. The artist formerly known as Defense Procurement and Acquisition Policy (DPAP) is now Defense Pricing and Contracting (DPC) and does the same for Defense agency contracting.
Look out for: Individual agencies create policy as well, and directorates within agencies, and even local offices within the directorates. Any practice, procedure, guidance, or policy created by an Executive Agency or organization thereof that does not rise to the level of a regulation can be considered policy. This can be a formal memorandum with the signature of the senior procurement executive or chief of policy. It can also be an informal e-mail sent by an official with policymaking authority within the agency. This source of authority is the most difficult for proposal professionals to track and document, mostly because these policy documents may not always be available to the public.
Personal authority is NOT valid!
In the government contracts profession, personal authority does not exist. This is a paramount lesson for the proposal professional. Whenever I write articles, speak to fellow professionals, teach courses, or provide expert advice to clients, this is a consistent theme. Authority is derived from legitimate sources which can be verified, challenged, referenced, and discussed. Anything else is just “What Fred said.” Nothing but hearsay, speculation, and opinion!
The superstar proposal professional discriminates between answers that provide intelligent, well-researched, coherent, actionable, and accurate advice resting upon relevant authority versus glib opinions based on hearsay and so-called “best practices.” Do your best to improve the proposal profession and its body of knowledge. The future of the proposal profession depends on it! For more information about government contracts, please contact me at Christoph@ChristophLLC.com.
Christoph Mlinarchik, JD, CFCM, PMP is the owner of www.ChristophLLC.com, providing expert advice in government contracts: consulting, professional instruction, and expert witness services. Contact Christoph at Christoph@ChristophLLC.com.