Acquisition

This new rule gives contractors a way to rate the government

Federal contractors get plenty of feedback from the government. But outside of protests, the notion of a 360-degree evaluation doesn't exactly operate here, unt...

Tom Temin@tteminWFED

September 7, 2023 9:40 am

6 min read

Federal contractors get plenty of feedback from the government. But outside of protests, the notion of a 360-degree evaluation doesn’t exactly operate here, until now, maybe. It is all thanks to a new rule from the Federal Acquisition Regulation Council called, “Acquisition 360,” to encourage vendor feedback. To find out what it is all about, Federal Drive with Tom Temin talked with Centre Law and Consulting Partner Alan Chvotkin.

Interview Transcript:

Tom Temin And this rule is final, it takes place later this month. And what does it actually do here?

Alan Chvotkin Well, for the first time in a long time, it’s been five years in gestation. The FAR council now wants to encourage federal agencies to solicit vendor feedback at the conclusion of a procurement to assess how well the agency has performed, and to solicit input from the vendor community, both those who participated, as well as ideally those who did not participate as to why. How can they improve the process? So not that the end result is a perfect process, but that the agency has an opportunity to improve the results of the procurement.

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Tom Temin What possible forms could that take?

Alan Chvotkin Most of these are in the form of a open ended survey, and the FAR Council is going to work on a set, of course, survey questions for vendors. They already solicit some open forum questions for contracting officers to comment on the program office, and for the program office to comment on the contracting office. This is really the outreach to the vendor community for comments about the entire process.

Tom Temin Because if a vendor is really unhappy with the process, there can be a protest at the point of the solicitation has offered, and then there can be another protest after the contract is awarded. And that’s feedback. But if everything goes protest free, what could a vendor typically or potentially comment on that the agency does? What about a procurement could they comment on?

Alan Chvotkin Well, they might say, for example, that the agency was too slow in responding to solicitations or came too late in responding to vendor questions. So that made an impact on an ability of a company to put a team together or to draft their solution. They might comment on the number of changes that went through or a shift in personnel. Again, this is not to evaluate or rate an agency or a contracting officer, it’s not a scorecard about them. It’s really about the process, but there are innumerable issues that might affect how a vendor views the process that don’t go to the heart of the solicitation and evaluation.

Tom Temin And what about the requirements themselves? Often, I think vendors, contractors may have the sense that they know what the government actually needs, but they also know what the government put in its requirements. And as we all know, there’s a long history there of variance. Could that be something that could be surveyed?

Alan Chvotkin Well, it could be. There’s a lot of open ended questions where that information could come in. This is not a substitute or replacement for any of the anything else. So in the situation you mentioned. If asked, I’d always encourage companies to get in early on their communication and not wait for this post-hoc evaluation. But here again, if that’s the only chance a vendor has, they might choose to not respond in that way during the procurement, but want to let the agencies know why they didn’t pursue it because they weren’t satisfied with the requirements or didn’t think they were adequately described.

Tom Temin We’re speaking with Alan Chvotkin. He’s a partner with Center Law and Consulting, and long term observer of all things, federal procurement. What about debriefings? How do these differ from debriefings? And is there a opportunity in a debriefing to get some of this information to the government?

Alan Chvotkin Well, there are debriefings. Typically, the government talking to the vendor about why they did not win a procurement. Occasionally a vendor, I encourage vendors who win procurements to seek a debriefing. You always want to understand the agency’s decision making. This is not the best time for making those comments because the focus here is the agency sharing with the vendor their evaluation, their conclusions about the value and quality of the vendors procurement solution. But every opportunity to engage with the government, in my view, is an opportunity to inform them about how the process has worked and what opportunities the vendor has had to fully and fairly participate in them.

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Tom Temin And to whom would these reverse debriefings, I guess you might call them, apply. That is, the contracting officer is one party to all of this, but there’s a source selection team. There is a requirement setting team, which could be the program or the technology office. Would all of those people be able to see these results?

Alan Chvotkin Yes. The goal here under the rule is to anonymize the response so as to encourage feedback unless the submitter chooses to be identified. But yes, all of those parties, the contracting officer, the requirements team, the program office, all part of the draft questions from the earlier proposed role remains to be seen. The FAR council still has to write the final questions based on this final rule, and that should come in the next 30 to 60 days. Yes, all of those. Every party to the acquisition on the government side should be subject to this set of comments.

Tom Temin Right. So I guess if there’s some really strong feedback or there are some flaws that are of a serious nature that might have been indicated by the survey, that nevertheless didn’t derail the procurement, you can learn a thing or two from that type of feedback. Is your sense the government will take this in stride and well, OK, we’re going to fire contracting Officer X,Y,Z because of this. That’s not what anyone wants to happen.

Alan Chvotkin No. And that again, the goal is not that there’s those kinds of issues. I would wait for this kind of feedback, the 360 review the vendor comments to be the source of that. Those ought to be identified and escalated up the contracting chain. If you believe a contracting officer acted improperly or violated some other of the procurement rules or some other failure of the acquisition system. This is really designed to get at a systemic set of issues, even though it’s going to come one solicitation, one procurement at a time.

Tom Temin Right. Will these be accumulated? And will it be possible, do you think, for either industry or the government to aggregate findings over time, learn about trends and really get at systemic issues with how a particular agency goes about procurement and acquisition?

Alan Chvotkin I would expect that would be the ideal outcome. They promised to make the results available in the aggregate, and that’s the goal to improve procurement outcomes via an improved procurement process.