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Wednesday, December 6, 2023

Coronavirus Solutions: How to Navigate Federal Emergency Procurement Rules

It’s anything but business as usual in GovCon right now. Early in March, the president declared COVID-19 a national emergency and Congress passed an enormous spending package to fight COVID-19. Much of that package goes to helping agencies fulfill the mission that the spending package tasked their agency to deliver. They will need contractors to help them. You may be one of those contractors.

The definition of emergency is not synonymous with the Federal Acquisition Regulation (FAR). In normal times, it can take months to issue one contract for readily available goods or services. These are not normal times. Understanding FAR part 18 and how to bid for contracts using it can help you help the government right now.

FAR part 18 is appropriately titled “Emergency Acquisitions.” It contains a listing of acquisition flexibilities available for use when contracting for goods or services to be used in handling a presidentially declared emergency or in defending the nation. In general, these flexibilities allow the Contracting Officer (CO) to suspend compliance with some normal rules. Let’s look at a few of the acquisition flexibilities that may be most meaningful to you, help you grow your business and help in the fight.

  • For use during the emergency, the micro-purchase threshold increases from $10,000 to $20,000. These are often buys that are made by placing a credit card order.
  • When the requirement meets the definition of urgent and compelling, publication on www.beta.sam.gov is not required. Urgent and compelling is defined in FAR subpart 5.2. (PRO TIP: If you are not already servicing your target agency, pick up the phone and explain how your solution alleviates an urgent need. It is also a good idea to submit a brief written explanation of your solution, its benefits where you’ve implemented the solution before and how it solved the same problem.)
  • Full and open competition is not required for urgent requirements. This means that the CO can solicit orally from limited sources. See FAR 6.302-2 which includes a requirement for written justification when this is done. (PRO TIP: Help your customer identify a list of “limited” sources from which to solicit offers. And be prepared to assist them in writing the justification, demonstrating how the government would suffer serious injury – either financial or other – by taking time to conduct a full and open competition.)
  • Federal Prison Industries (FPI) is not a mandatory source when public needs require immediate delivery or performance. COs can purchase directly from the open market even when FPI offers the product or service. (FAR 8.605(b))
  • For use in the emergency, the simplified acquisition threshold is increased from $250,000 to $750,000. The threshold is $13M when purchasing goods or services that the CO determines meet the definition of Commercial Item at FAR 2.101.
  • Sole source awards may be allowed for requirements valued up to the simplified acquisition threshold. This means that if the CO determines that only one source is reasonably available due to urgency, exclusive licenses, brand name, or industrial mobilization, they may make the award and document their reasoning (FAR 13.106-1(b)).
  • Oral proposals are authorized when it is not in the government’s best interest to require a written solicitation that would delay the acquisition of goods or services. A written explanation of the rationale that resulted in not issuing a written solicitation must be in the file.
  • A letter contract may be used in situations where performance must start immediately. In this instance, the CO would issue a written direction for the contractor to start work immediately with instructions on how the CO and the contractor would finalize the terms and conditions, including price after work begins.
  • Trade agreements may be waived when using other than full and open competition or when making sole source acquisitions using Simplified Acquisition Procedures in FAR 13.501.

In addition, expect to see COs make maximum use of the sole source rules allowed in non-emergency times when making awards to 8(a) contractors, HUBZone contractors, Women-owned small business contractors, and Small Disadvantaged Veteran Owned Small Businesses. DOD has also issued a class deviation increasing the threshold for 8(a) Alaska Native Corporations (ANC) sole source awards from $22 million to $100 million.

Not all contracting professionals will be familiar with these rules. Your understanding of them could give you a leg up. While many companies will not have products and solutions that are obviously needed in this fight, many others will. It’s your job to figure out where you can help meet the needs generated by this Presidential Emergency Declaration. Engage in a good, honest assessment of any products or solutions you have that could aid in fighting COVID-19. Then position your solution in front of your prospect and include your suggestion on how they can work with you. It might be one of the emergency flexibilities. It might be making use of an existing contract vehicle or something else.

This is an unprecedented time in our country and in GovCon. Your company’s goods and services may be in a unique position to help. Your best approach is to present a holistic solution that solves their problem AND includes how they can use the rules to put your company to work solving their problems quickly.

Also be aware that there are many flexibilities available for use when we are not in an emergency. To learn which ones and how to make them a part of your capture strategy, sign up to receive a notice when our series “Speaking FARLish is fun – especially when it helps you WIN!”

Karla Williams
Karla Williams
Karla Williams is a GovCon Coach who helps companies find, win and manage government contracts. She hosts webinars frequently on topics of interest to the GovCon community. Read more about her and how she can help you at www.iamkarlawilliams.com.

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