Fiction: “I always thought that our country was built on experimentation and enterprise: Unless something is prohibited by law, you can do it! But our government contracting system doesn’t seem to operate that way. Everything has to be ‘by the book.’ Unless the FAR specifically spells it out, no one is willing to try a sensible business approach.”
Fact: It’s understandable why you feel that way. In a rule-based environment, it can be so difficult learning the rules and regulations that apply that one doesn’t have time to “think outside the box.” And by the way, that can be true in the private sector as well – remember the old saying, “no one ever got fired for buying from IBM”? [Personal note: That slogan still sticks in my craw, since I worked for a competitor of IBM!]
The reality, though, is more promising. The FAR itself sets the standard on the very first page:
The role of each member of the Acquisition Team is to exercise personal initiative and sound business judgment in providing the best value product or service to meet the customer’s needs. In exercising initiative, Government members of the Acquisition Team may assume if a specific strategy, practice, policy or procedure is in the best interests of the Government and is not addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, that the strategy, practice, policy or procedure is a permissible exercise of authority.
In other words, unless an action is explicitly prohibited, it is permitted. Of course, even a permitted action should be taken by a contracting officer only if it’s in the best interests of the United States.
There are programs and awards given to agencies that take special initiative. And yes, agencies and acquisition teams do “think outside the box.” A good example of this is the “Cost-Plus-Award-Term” contract, under which the agency rewards contractors for excellent performance by extending the period of performance (without a new competition), rather than through a higher fee. [In the private sector, the slogan used to be, “if you do a good job, you get to keep it.”] First used by the Air Force, the Cost-Plus-Award-Term contract type has also been used by the Army, Navy, NASA, and GSA. Nowhere in the FAR will you find a description of this contract type – but it is not prohibited!
So – if your agency seems to be more rule-bound than necessary, help them recognize that the “box” is more porous than they might fear.
This is part two of a multi-part series. If you are new to the series, we welcome you to check out part one.