CHAPTER 3 SOURCES OF GUIDANCE FOR THE ACQUISITION PROFESSIONAL

The acquisition professional looks for official guidance on the source selection process in:

• The Federal Acquisition Regulation (FAR).

• Agency regulations that implement or supplement the FAR. While the FAR applies to most source selections in the federal executive agencies and thus provides for consistency in the process, agency regulations may vary widely in how they implement or supplement the FAR.

• Precedent established by the Comptroller General (Comp Gen), who is head of the Government Accountability Office (GAO), in decisions made in response to preaward or postaward protests from potential or actual offerors. In essence, Comp Gen opinions interpret and, in some instances, supplement the FAR. They are published on the GAO website (http://www.gao.gov/legal/decisions.html).

• Precedent established by the federal courts (most often the Court of Federal Claims) in findings resulting from preaward or postaward protests or other legal action initiated by potential or actual offerors. Like Comp Gen decisions, protest decisions of the Court of Federal Claims also are available online (http://www.uscfc.uscourts.gov/opinions_decisions_general/Published).

• The Federal Register, a government publication that announces proposed acquisition rules and final rules that may affect the source selection process.

The FAR is periodically updated as new laws are passed or executive orders are executed, or when the federal executive agencies themselves otherwise see the need for change. Agency regulations are changed in the same manner. Interim FAR changes are made through issuance of a government publication called the Federal Acquisition Circular.

For various reasons, including efficiency and expense, disappointed contractors are more likely to seek redress from the GAO than through the courts. Thus, Comp Gen opinions generally exert more influence on the source selection process. Often precedents that have been established by the Comp Gen or the courts, sometimes referred to as case law, are ultimately reflected in changes to the FAR and in agency supplements to the FAR.

Other sources of guidance for the acquisition professional include source selection manuals published by various agencies. One example is the Army Source Selection Manual, an unusually detailed agency source selection guide published as an appendix to the Army Federal Acquisition Regulation Supplement (AFARS). NASA also has a source selection manual, and the Department of Energy has an acquisition guide that includes source selection information. All are available online and can be accessed through websites such as www.wifcon.com and www.usa.gov.

Some agency source selection manuals tend to emphasize getting organized for source selection, the channels of communication, and various logistical matters, rather than discussing in depth the many choices and business decisions that must be made by acquisition team personnel throughout the process. Nonetheless, all of these government manuals furnish valuable source selection guidance. In particular, they provide forms and formats for myriad source selection documents, and they define the source selection terminology used by the agency.

A number of commercial publications publish and discuss the most recent Comp Gen or federal court cases and the impact they may have on the source selection process. Further, a number of private-sector organizations and some government organizations offer professional and up-to-date training in the source selection process.

Numerous government websites, including the sites of the General Services Administration and the Defense Acquisition University, also offer source selection guidance, as do private websites. For example, the website Where in Federal Contracting? (WIFCON), at www.wifcon.com, includes links to numerous legal opinions and government regulations relevant to source selection. It also has a chat room for acquisition professionals to use to discuss any aspect of government contracting, including source selection.

Another private-sector source of information is the National Contract Management Association (NCMA, www.ncmahq.org). NCMA publishes Contract Management, a monthly magazine that often contains articles pertaining to government source selection.

If an offeror formally protests the manner in which a particular source selection is being or has been conducted, it may cost the government substantial amounts of money and cause significant delays, especially if the protest is upheld. Accordingly, it is crucial that government acquisition personnel remain knowledgeable and current regarding changes in regulations and any precedents that have been established by the Comp Gen and the federal courts.

Appendix IV provides a list of additional source selection resources.