I’ve known Jonathon Douglas (JD) Long for several years. Originally written for his blog, this piece is based on some DAU material along with additional amplification based on his experience. I asked him if I could share it here in SSD as it’s always good for industry to see an insider’s perspective regarding contracts. For those of us that aren’t contracting professionals or members of industry, it’s a great learning opportunity. Thanks Jonathon!
From the Defense Acquisition University we are reminded about the “Ten Commandments of Effective Contracts.” Although seemingly simple and straightforward, the Ten Commandments could be a great facing page for any acquisition professional creating or responding to DoD procurement efforts.
1. “Read the contract.” That includes reading the request for information, request for sources sought, request for bid and or proposal (RFB/RFP) and responses to contractor questions after a RFB/RFP has been published. That means everyone on the source selection panel must read the contract and associated requirements documents before initiating a source selection. that means that industry should read their bid proposal along side the RFB/RFP to ensure they have answered all the government’s information requirements.
2. “The contract is interpreted as a whole.”
3. “Only the Contracting Officer may change or agree to changes in the Contract.” So to my colleagues in industry, it doesn’t matter what the helpful contract specialist or the quality assurance representative agreed to, until that agreement is institutionalized as an amendment to an RFB/RFP or a modification to a contract – its doesn’t count (meaning not legally sustainable). Remember – proposal requests are amended and contracts are modified.
4. “Requirements or material changes must be approved and documented.” While it might be acceptable following contract award and early in the spin-up towards manufacturing; to place advanced orders for material changes – you must follow-up quickly with the Contracting Officer (KO) in writing to describe what those changes are and which government official directed you to make that change. This ensure that the KO will follow-up with a signed modification as documentation. Don’t move forward and invest significant sums or manufacturing change plans until you have the signed modification in hand.
5. Approved and documented requirements take precedence over verbal requests.” See my comment above in number 4.
6. “No funding means no requirement.” Note to business developers – unless your customer has a validated requirement and associated funding, you don’t have real future business. The government cannot award a contract without a validated requirement and a valid funding Line of Accounting – not going to happen. This brings about the discussion on how best to meet future government needs. I have experienced two strategies: (1) Anticipate government requirements early on as described in some Advanced Planning Brief to Industry document or a Preplanned Product Improvement with the advantage being that both have an initial requirement concept in mind and likely some funding, or (2) “Build it and they will come” strategy. I believe that there was much more room for strategy (2) over the last twelve years of constant combat when the military services (mainly ground combat forces) refreshed much of their basic equipment, were open to new concepts and were well funded. However, I do not believe that this trend is continuing and with the draw-down in Afghanistan and US combat operations ending in 2015, I think focusing on existing requirements or incremental improvements is a more sustainable business development approach. I have heard the term “cost neutral improvement” several times.
7. “The contract schedule takes precedence over the contract clauses.”
8. “Contract clauses take precedence over the other documents, exhibits and attachments.” The contract clauses flow from the Federal Acquisition Regulation (FAR) and contain statutory language and direction that cannot be overwritten by a text narrative to do something otherwise. In reference to specifications – according to the uniform contract format, specifications are last in the order of precedence following documents, exhibits, and attachments (see commandment 9. below).
9. “Other documents, exhibits and attachments take precedence over the specifications.”
10. “Plain English takes precedence over technical language. Ambiguous language is interpreted against the drafter.” Now while I am not exactly sure about the practical application I believe this is similar to the baseball analogy that “tie goes to the runner!”
Now if we can just get the total solicitation page count decreased and the contract award cycle time faster, we would be doing great!
