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David F. Boleyn, Esq., PLLC
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More Federal Government Contracting Information

(Continued from Welcome page…)

The following is provided to give you some exposure to the statutory foundation of federal government contracting law, and to shine a light on the use of federal procurement regulations to implement and advance many of America’s economic and social policies. It will also give you an opportunity to look at sections of the Federal Acquisition Regulation system, which is the single, most important set of regulations you will want to be familiar with as a federal government contactor.

Also, the following may be thought of metaphorically as something not unlike skipping a stone across the water. In this analogy, however, each time the stone makes contact with the water, there is a glimpse at what lies beneath, and what lies beneath is substantial.

Federal government contracting law, as it exists today, is mostly attributable to three major statutes of the mid and late 20th century. They are: (1) the Armed Services Procurement Act of 1947 (ASPA); (2) the Federal Property and Administrative Services Act of 1949 (FPASA); and (3) the Competition in Contracting Act of 1984 (CICA).

ASPA governs the acquisition of all property (except real estate), construction, and services by defense agencies, specifically the Department of Defense (DOD), the Coast Guard, and the National Aeronautics and Space Administration (NASA).

FPASA, on the other hand, governs acquisitions by civilian agencies, meaning mostly executive departments and agencies other than those governed by ASPA.

CICA applies to both defense and civilian agencies, requiring them to seek and obtain "full and open competition" wherever possible in the procurement process. CICA also, for the first time, gave the General Accounting Office — now the Government Accountability Office (GAO) — and the General Services Administration (GSA) Board of Contract Appeals the ability to hear and decide bid protests.

These three statutes — ASPA, FPASA, and CICA — have been amended, or otherwise affected, by additional legislation including the following (as amended):
  1. The Small Business Act of 1953 (SBA);
  2. The Truth in Negotiations Act of 1962 (TINA);
  3. The Office of Federal Procurement Policy Act of 1974 (OFFP);
  4. The Federal Acquisition Streamlining Act of 1994 (FASA);
  5. The Clinger-Cohen Act (CCA), formerly known as the Information Technology
    Management Reform Act of 1996 (ITMRA);
  6. The Federal Acquisitions Reform Act of 1996 (FARA); and
  7. The Services Acquisition Reform Act 2003 (SARA).
Not many people, other than lawyers practicing government contracting law, are familiar with these statutes. However, all government contractors are (or should be) aware of at least one product of the OFFP (as amended) and that is the Federal Acquisition Regulation system — more commonly known by its abbreviation as the "FAR" — which first became effective on April 1, 1984.
The FAR 1 was intended to greatly simplify and improve the federal procurement process, making it more efficient and less expensive. It has, to a large extent, accomplished these goals. Although intimidating to the uninitiated, the FAR is one of the most well-written systems of regulations in the entire Code of Federal Regulations (CFR). Yes, it is complicated, but not as difficult to use as many may think. However — and somewhat ironically given the intention to simplify the federal procurement process — a number of agencies (e.g., DOD, Department of State, Health and Human Services, GSA, NASA, et al.) have their own supplements to the FAR. Indeed, there are 31 such supplements in the CFR. Consequently, should a contractor seek a contract with one of these agencies, that agency's supplemental regulations must be met in addition to those in the FAR itself. And, if that weren't enough, the FAR and agency supplements to the FAR are constantly updated. Those changes are published in the Federal Register (which is the daily journal of the U.S. government).
There are three broad phases in the federal procurement process: pre-award; solicitation and award; and post-award. Pre-award is when the agency, becoming aware of a need, begins acquisition planning. Solicitation and award constitute the second phase where contract formation takes place and contract administration begins. Post-award involves ongoing contract administration and, at the end of the contract, termination and closeout.

“Full and open competition" is the clarion call of the federal government procurement process. In regard to fair and open competition, CICA codified three levels of competition policy, specifically:
  • Fair and open competition;
  • Fair and open competition after the exclusion of other sources; and
  • Other than fair and open competition.

There are only seven sets of circumstances that permit the government to use other than “fair and open competition” procedures, all of which require prior written justification, approval and public disclosure. Those circumstances are:

  1. Only one responsible source;
  2. Unusual and compelling urgency;
  3. Industrial mobilization or research and development capability;
  4. International agreements;
  5. Authorized or required by statute;
  6. National security; and
  7. Public interest.

It should be noted that, within these circumstances — especially those under “5. Authorized or required by statute” and “7. Public interest” — the government is pursuing socioeconomic policy goals.

By way of economic policy, the SBA requires that "...a fair proportion of the total purchases and contracts or subcontracts for property and services..." be awarded to small businesses. The Small Business Administration (also “SBA”) establishes the criteria for determining whether a contractor is a small business. Those criteria include ownership, years in business, revenue, number of employees, and other factors. (Typically, the criteria are high because the government's goal is to have small businesses grow into prosperous, larger-sized businesses before disqualifying them from federal government contracting preferences or advantages they no longer need in order to prosper.)

The Small Business Administration (also “SBA”) negotiates with agencies each year to establish "fair proportion" percentage goals (in dollar amounts) for the awards each agency will make to small businesses during the next fiscal year. And, an agency's success (or lack thereof) in meeting its goal is reported to Congress.

Small business set-asides — acquisitions exclusively reserved for the participation of small business concerns — help ensure that agencies meet their percentage goals for small business awards. For example, all federal procurements between $3,500 and $150,000 are set aside for small businesses. In addition, an agency may set aside all or part of a larger acquisition for award to a small business as the agency seeks to meet its annual percentage goal for awards to small businesses.

When awards are set aside for exclusive competitive participation by small business concerns, social policy becomes more evident, particularly when the small businesses are further qualified to include: SBA Section 8(a) business development participants; historically underutilized business zone (HUBZone) small business concerns; service-disabled veteran-owned small business concerns; economically disadvantaged women-owned small business concerns; and more.
The federal government uses five procurement methods, which are:
  1. Simplified Acquisition Procedures (for which the government issues a “Request for Quotes”);
  2. Sealed Bidding (for which the government issues an "Invitation for Bids”);
  3. Two-Step Sealed Bidding;
  4. Negotiation (for which the government issues a “Request for Proposals”); and
  5. Special Procedures (used for research and development services, as well as architectural and engineering services).
Of all these procurement methods, the three that are the most common – and, therefore, the one(s) you will most likely be involved with as a contractor – are: Simplified Acquisition Procedure; Sealed Bidding; and Negotiation.

I could provide you with more information about these, but that information would come from the FAR. So, let me direct you to those sections in the FAR so you may see how these procurement methods are addressed by the federal government.
Procurement Method
Simplified Acquisition Procedures
Sealed Bidding
Negotiation
FAR Section (each link opens a new window)
Once the procurement method has been established, the contracting officer will determine the contract type to be used. There are five contract types, listed as follows. Within each type,however, they can vary greatly.
  1. Fixed-Price Contracts;
  2. Cost-Reimbursement Contracts;
  3. Incentive Contracts;
  4. Indefinite-Delivery Contracts; and
  5. Time-and Materials, Labor Hour and Letter Contracts.
These are listed at FAR Part 16—Types of Contracts (opens a new window).

The pricing arrangement needed or desired by the agency — or mandated by regulation — will drive the decision on which contract type is used. Pricing arrangements allocate risk between the government and the contractor. Generally, a fixed-price contract allocates the least cost risk to the government while, conversely, a cost-reimbursement contract allocates the most cost risk to the government.
In many ways, one of the most interesting parts of the FAR — at least from my perspective as a lawyer practicing contract law — is the standardized structure of government solicitations and contracts imposed by the FAR’s Uniform Contract Format (UCF) requirements. (You won’t find this in the private sector.) The UCF mandates that all contractual documents be organized into four parts, each of which has one or more sections, as follows: Part I—The Schedule (seven sections); Part II—Contract Clauses (one section); Part III—List of Documents, Exhibits, and Other Attachments (one section); and Part IV—Representations and Instructions (three sections).

There are two UCF tables in the FAR. The first is “Table 14.1—Uniform Contract Format,”2 which is under Part 14—Sealed Bidding, at Subpart 14.201-1. The second is “Table 15.1—Uniform Contract Format,”3 which is under Part 15—Contracting by Negotiation, at Subpart 15.204-1. Following each UCF table are the parts and sections referenced in the table itself. However, while these UCF tables may appear to be identical to the uninitiated, they most assuredly are not. Table 14.1 applies to contract solicitations, and Table 15.1 applies to contract negotiations.

In each case, the involved parts and sections require the government — “to the maximum practical extent” — to prepare contracts in accordance the UCF. This has resulted in the great majority of “provisions” (used in solicitations) and “clauses” (used in contracts) becoming standardized as the government seeks and secures supplies and services from the private sector.
The above represents only a small sampling of the many laws and regulations every federal government contractor must successfully navigate to compete in the multibillion-dollar marketplace that provides supplies and services to the federal government.

The fact of the matter is, the procurement process is highly regulated, starting well before the contract is reduced to writing, continuing throughout the contract’s period of performance, and extending well after that period of performance has ended. Moreover, the requirements for responding to contract announcements — be they Requests for Quotes, Invitations for Bids, Requests for Proposals, or solicitations for Special Procedures — are stringent. You have got to get it right the first time or — with very few, and very narrow, technical exceptions — your efforts will be for naught.

The government is required by law to make certain fair and open competition is accorded each and every bidder responding to a solicitation for supplies or services being sought by the government. As a consequence, the government will not deviate from the rules and regulations that ensure fair and open competition. So, if you do not provide what is required, or if you do provide it but fail to do so on a timely basis, you will be disqualified from competing further on the involved contract. And, of course, that means your company will have lost a substantial amount of time, effort and money.

To help you avoid such an outcome, I can:
  1. Help your company recognize, understand and adhere to the many complex rules and regulations governing the federal procurement process;
  2. Help make certain your company's response to a given solicitation is properly completed and timely submitted; and
  3. Should your company be awarded the sought after government contract, provide you with legal counsel before, during and after the contract's period of performance.
I would very much appreciate the opportunity to assist you in your efforts to compete successfully for the government contract your company wants to win.
David F. Boleyn, Esq., PLLC
David F. Boleyn, Esq., PLLC is a Virginia professional limited liability company, registered with the Virginia State Corporation Commission. Mr. Boleyn is a member of the Virginia State Bar and the District of Columbia Bar.
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David F. Boleyn, Esq., PLLC
5622 Columbia Pike, Suite 207
Falls Church, VA 22041-2718
Telephone: (703) 489-8877
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In 2008, Mr. Boleyn made government contracting a primary practice area in his law practice. Subsequently, he earned a Master’s Certificate in Government Contracting from The George Washington University School of Business in 2012.
  1. Footnote 1: The Federal Acquisition Regulation is available online at: https://www.acquisition.gov/?q=browsefar (opens a new window). You may download a complete copy in PDF or HTML for use offline. If you do, however, be certain to double-check any provisions you are relying upon before submitting any final bid or any related final documents. The FAR, and agency supplements to the FAR, are constantly updated.
  2. Footnote 2: Due to the way the acquisition.gov site is set up, a direct link to “Table 14-1—Uniform Contract Format” cannot be provided. So, first go to FAR Part 14—Sealed Bidding (opens a new window) and then click on “Subpart 14.201-1 Uniform Contract Format.” Once you have clicked through to that subpart, scroll down to “Table 14-1—Uniform Contract Format.”
  3. Footnote 3: Due to the way the acquisition.gov site is set up, a direct link to “Table 15-1—Uniform Contract Format” cannot be provided. So, first go to FAR Part 15—Contract by Negotiation (opens a new window) and then click on “Subpart 15.204-1 Uniform Contract Format.” Once you have clicked through to that subpart, scroll down to “Table 15-1—Uniform Contract Format.”