If you work in the Government acquisition world, this podcast is for you. (not just for Contracting Officers!)
Kevin and Paul describe the process of amending a government solicitation. Listen and learn why (as always) early and open communication reduces the need for amendments which results in faster and cleaner source selections and timely contract award.
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Kevin Jans and Paul Schauer created the Contracting Officer Podcast to help government and industry acquisition professionals understand more about how the other side thinks. As former government Contracting Officers who have also worked on the industry side, Kevin and Paul share their perspectives in support of the podcast’s mission: Make government contracts better, one contract at a time.
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Transcript Below
Paul Schauer 0:08
Welcome to the contracting officer podcast. It’s not just for contracting officers, if you’re anywhere in the government acquisition world, this podcast is for you. Today, we’re talking about what happens when the government needs to modify a solicitation. And this podcast is brought to you by Skyway acquisition, visit Skywayacq.com to learn more. All right, let’s get started. Government contracts are not always static
Kevin Jans 0:39
contracts. I mean, they’re living documents. They’re trying to get the thing done. And that thing, sometimes changes a bit and solicitations, government RFPs are the same way. They’re not etched in stone forever. They may adapt to what’s happening.
Paul Schauer 0:52
When the needs to change a contract. It’s called a modification. When the government needs to change a solicitation. It’s not called a modification. It’s called an amendment. Sounds easy, right? Yeah, the different words for what seems to be the same thing. But it’s not before we get into how and why. Let’s stop and say thanks.
Kevin Jans 1:16
Thanks. This week goes to Dominic Rios. Dominic is an active duty contracting officer with the army. He’s currently stationed in Bavaria, Germany. I want to thank Dominic for joining the contracting officer podcast group on LinkedIn is when folks like Dominic, join our podcast group we can learn like who’s actually listening. And Thanks, Dominic, for telling us how he uses our podcast. This helps us learn more about how to make the episodes as useful as possible. And if you’re not in the podcast group, go on LinkedIn search the groups for contracting officer podcast group and hit that request to join in Amber will let you in.
Paul Schauer 1:52
All right, thanks, Dominic. Back to our topic. What is an amendment amendment is not a modification. I mean, it is it is a modification to change. It’s not the same as a modification. It’s called an amendment. An amendment is a change to a solicitation. And it’s not proper to use the term amendment when describing a change to a contract. And I remember having that conversation and annoying the crap out of people when I was a contracting officer by telling them no, no, it’s not. It’s it’s not an RFP mod. It’s an amendment. Who cares why anyway, it’s a different word for a reason. It’s covered in the far far 15.26, titled amending the solicitation.
Kevin Jans 2:36
This concept of amending the solicitation shows up throughout the far, it works in roughly the same ways. But for today, we’ll just keep it in FAR Part 15. Because it’s got a much more detailed explanation of how this is different than than changing the actual contract. But understand that far. 15 is not the only place that supplies and far 15 is contract by negotiation, the big stuff, the more complex stuff
Paul Schauer 2:59
15.206a says when either before or after receipt of proposals, the government changes its requirements or terms and conditions, the contracting officer shall amend the solicitation. Right government can’t change what they want to buy, or how they’re going to buy it and not tell anyone.
Kevin Jans 3:18
Yeah, that’s that’s the lesson here is if you’re going to change what you’re doing, you got to tell industry. Tell them as you amend this, they’ll say yes
Paul Schauer 3:25
shall amend the solicitation 15.206B. Amendments issued before the established time and date for receipt of proposals shall be issued to all parties receiving the solicitation so everybody gets the amendment before proposals are submitted. 15.206C tells you what to do after proposals are received. Amendments issued after the established time and date for receipt of proposal shall be issued to all offers that have not been eliminated from the competition. And by eliminated from the competition. We usually mean if there’s been a competitive range determination.
Kevin Jans 4:02
What this means is after the proposals are received, so if we say proposals are due on January 1, whoever submitted a proposal on January 1, if we amend the solicitation on January 3, you didn’t submit records on January 1, you’re not you’re by definition eliminated from the competition. It might be after competitive range might be after other stuff. The reason it doesn’t get into specificity is it’s like if somebody’s eligible to compete, I either gave you a proposal and you amended solicitation, you got to tell the way this plays out is you don’t actually have to post it publicly anymore. Because if you didn’t submit a proposal, and we’re past the proposal due date, you’re no longer an interested party. And if I post it to you, all of a sudden you’re going to start sending me all kinds of stuff.
Paul Schauer 4:41
Right? Right. That makes sense.
Kevin Jans 4:44
The details of what needs to be an amendment are listed out in paragraph g of 15.206. Yeah, it’s prescriptive list.
Paul Schauer 4:51
Most of it is pretty basic stuff like you have to include what solicitation numbers you’re actually amending. The important thing to include is if they There is a revision to the solicitation closing date, the proposal due date. That’s important to get out there.
Kevin Jans 5:07
Yes, that’s, that’s the first thing people scan looking for.
Paul Schauer 5:11
You mentioned paragraph G, we’re going to jump back, talk about a couple of the earlier paragraphs. Again, we did a, b and c, paragraph D of 15.206 tells the contracting officer that if a proposal of interest to the government involves a departure from the stated requirements, the contracting officer shall amend the solicitation provided this can be done without revealing to the other offers the alternate solution proposed or any other information that is entitled to protection. This is super important. And I don’t remember this being in the far in the good old days back when I was a contracting officer, but it tells the government if you get something that you want to buy, you shall amend the solicitation, if you can do it without screwing up the whole competition.
Kevin Jans 6:01
And this is a great example of communicating with industry after RFP drops. Because again, this is a thinking job, right? So the fact that they use the words if the proposal of interest, which defined that right, involves a departure from the stated requirement. What’s departure mean? It’s like there’s a lot of judgment calls in this. But in other words, if the customer if the government’s customer says I didn’t think they would do it this way, this way is better. Can we change the solicitation to make this this way? A better evaluation criteria or something like that. There’s lots of ways you could deal with this. But all of those are judgment calls. And you’re right, I didn’t use this as much as a contracting officer. It was not worded this way, when I was a contracting officer. But it does specifically say as long as you don’t go outside of the lines, and the lines are clearly stated here in far 15 207, which basically says you protect proprietary information, and 15.306, which says that you can’t treat the company or contractors differently. After you hear me stressing that after receipt of proposals. Yeah, that’s where we are here, we’re after receive your proposals. Now you have to treat them equally. There’s a whole rabbit trail that we’re not gonna go down today. That is in this particular part of the far
Paul Schauer 7:18
paragraph e of 15.206 takes you on a different route, if in the judgment of the contracting officer, based on market research, or otherwise, an amendment proposed for issuance, after offers had been received is so substantial as to exceed what prospective offers reasonably could have anticipated. So that additional sources likely would have submitted offers, had the substance of the amendment been known to them, the contracting officer shall cancel the original solicitation and issue a new one, regardless of the stage of the acquisition. That is a mouthful. So to say it simply, if you’re changing the solicitation so much that some people that didn’t submit a proposal would have or conversely, some people that did submitted a proposal wouldn’t have if it’s such a big change, you need to start over amendment isn’t going to fix it.
Kevin Jans 8:14
And to add to that, you remember a few minutes ago, I talked about the you have to notify somebody who has already submitted a proposal of the amendment, which means that you didn’t submit a proposal, you don’t get a notification of the amendment. Well, here’s that scenario plan out where if you didn’t submit a proposal, and that only the people that submitted a proposal, get the amendment, but the amendment changes the evaluation criteria so much that different companies would have bid. This is the forum telling you Look dude, you got to start over. Because you’re not even telling the people that you change evaluation criteria, who probably would have been anyway? Yep. Again, thinking job.
Paul Schauer 8:46
Alright, last thing, and then we’ll get out of the far for the moment. Paragraph F says oral notices may be used when time is of the essence, the contracting officer shall document the contract file and formalize the notice with an amendment. So if something is critical to get out there, you can call the offers or tell them at a conference, whatever you need to do, you can say there’s going to be a change. This is what it’s going to be about. This is the new solicitation duty or proposal due date. But you can’t just say it, you got to write it eventually. You have to actually, if you’re issued, eventually, as soon as possible, I’d say. Yeah, that’s a better way to say all right, when in the acquisition process, does this happen time zones, where time zones time is what I was gonna say their acquisition time zones. This is during the RFP zone. So what we’re talking about here is an amendment after the release of the solicitation. And if you’ve listened to the acquisition time zones episodes, you know that the RFP zone begins when the solicitation is released.
Kevin Jans 9:56
So, by definition, the amendments are happening during the RFP zone
Paul Schauer 10:00
Now if we were talking modifications like we did in previous episodes, modifications occur during the execution time zones, this is the performance zone during contract performance right. So amendments during the RFP zone modifications to the contract during the performance zone.
Kevin Jans 10:18
If you’re not familiar with the acquisition time zones, we cover those in episode number three, and then execution time zones are episode 372. We also talked about contract what is a contract modification in Episode 120.
Paul Schauer 10:32
Alright, government folks, there are a lot of things that can drive the need to for a change to a solicitation for an amendment to a solicitation. The first is clarification. When the offers read your solicitation and get working on their proposals, there may be things that are unclear to them, that are important enough that everyone needs to understand them clearly. Right? The it may be about your evaluation criteria, your evaluation process, the proposal requirements, right the proposal writing instructions, or it could be a clarification of the requirements.
Kevin Jans 11:10
It could be about past performance requirements, those questions that you get from industry during the after release of the solicitation, all those questions you’re getting the way to fix those is to clarify them is through an amendment.
Paul Schauer 11:24
You may also need to amend the solicitation to fix an error. Right, make a correction. And that that’s another very common I think clarifications and corrections are the most common. It’s it’s difficult to write a very large complex RFP complex, difficult those kind of go together, right.
Kevin Jans 11:45
Frankly, it’s, I’ve done small ones, and I still managed to screw this up.
Paul Schauer 11:49
Right? It’s it’s it’s pretty common that that when industry dives in and starts to write their proposal, they find things and the government says, yep, you’re right, we missed that one. Here. We’re going to we’re going to clear that up and issue an amendment.
Kevin Jans 12:04
There. We talked about that in the front, like the fresh air test, like when when you release it, it’s like you’ve exposed it to fresh air and industry is gonna see stuff that surprisingly, you didn’t see it because you’ve been staring at it for right or whatever.
Paul Schauer 12:14
When there’s a change in the requirements of what you’re asking a contractor to do. This is where an amendment gets serious. This is where you have to start to consider how big is this change? Like we talked about back and forth time? Does this change impact the the landscape of offers whether whether more people would have proposed, or some people that did propose wouldn’t have proposed your change could could have impacted the bid no bid decision that industry makes prior to putting in all the time and energy to write that final proposal?
Kevin Jans 12:49
Or does the change favor one offer over another or perceived to favor one offer over another? That’s a change that will be noticeable and will probably cause additional questions.
Paul Schauer 13:01
With questions or even even protests, right? If if you make a change, and all the offers can look at it and say, Wow, that means that Steve’s gonna win this one. Right? That’s gonna be a problem.
Kevin Jans 13:15
Yeah, if suddenly the requirement is you have to have a patent for this particular software or his particular technical solution, or you have to have have served eight years in this agency and be a retired enlisted. Like when you start to see that specificity. That’s when people’s spidey senses start to go off.
Paul Schauer 13:32
Yeah, you may also need to amend the solicitation if you change your acquisition strategy. If you’re changing, like the contract type, for instance, if it was cost plus something, and now you want to change it to time and materials, or the other way around, that could be a big enough change that you need to cancel the whole solicitation and start over. Right, that that’s something that may seem minor, but could cause a huge change in who proposes and how, right if you go to, from a time of materials to a cost plus strategy, there may be contractors that don’t have the accounting systems that aren’t able to do cost type contracts.
Kevin Jans 14:19
Those kinds of changes. As a contracting officer, I didn’t always see the impact of the rate, because I hadn’t done it from that side. Right. And and now that we see it from both sides, something like changing from three years of experience required to five years. In theory, that’s not a big deal. But what if the person that they had intended the offer had intended to use for this position is 3.2 years of experience. Now they’re going to find a new person. That’s not easy, regardless is particularly uneasy in the job market we have right now. Right? So that’s an implication that, Oh, this isn’t a five minute conversation for the contractor just this could derail their whole strategy. And then like, like you said, changing the contract type T&M go Back to that one. Let’s say you change it to T&M. After you’ve released the RFP, well, for some companies T and M is where they want to be. But if they hadn’t bid, they would know you change into T&M. Yep. So that goes to that issue of somebody. Well, they would have been if they knew, and it was T&M. So now you have to cancel and start over. And so yet, it’s a rocket upon, you have to be careful how big of a rocket is.
Paul Schauer 15:20
Yeah those ripples spread. It’s important to think about how much time industry needs to respond to your change, right? If they’re in process writing their proposal, it’s one thing if they’ve already submitted their proposal, it’s it’s it’s an even bigger thing. It’s not a change to proposal. It’s it’s almost a new proposal. In some cases, the best way to find out how long it might take to respond to this change is to ask industry, ask them whether three days is enough, or whether they need five or whether they need two months to change their proposals. Part of it comes down to how late in the proposal process are you issuing this amendment, the later it is in the process, the more time you may need to give offers to recover, right, if they haven’t written much of their proposal, and you change something, they might be able to complete it in roughly the same time. If it’s two days before the due date, and you change something that causes a major rewrite, or major pricing change. Oh, boy, right, they’re gonna scramble and you’re gonna get a bunch of non compliant proposals as a result, pricing is something you always have to recognize, if you have really complicated pricing instructions, which sometimes the government does, on FAR Part 15 acquisitions, sometimes even on other acquisitions, the government asked for a whole lot of pricing, detail and backup, that can take more time to update.
Kevin Jans 16:41
They’ll take it even further. If you have even a perfect space current, even a firm fixed price contract for a commercial service. When you ask a contractor in June, how much it will be to do this. And then Time goes by so but the proposal Lots of things have happened now it’s like October, things may have changed for them. Their overhead rates may have changed, they may have had a growth spurt, things may be different. And now for them to give you the same price because you change the requirement. It might be a 10 minute conversation, but it might be well wait a minute, we’ve hired 10 new people since then, and this person isn’t available anymore.
Paul Schauer 17:14
Inflation may have skyrocketed since then.
Kevin Jans 17:17
For example, yeah. So it’s the things that I thought were static, especially when working with small businesses that they’re not, I mean, if they hired five people, and they went from 20 to 25 people, their risk profile change, their overhead rates changed. So even if it’s a firm, fixed price, commercial service, and you say, Hey, can you replace this by tomorrow? They’re gonna freak out. Because that’s really hard. And maybe not even maybe not even possible.
Paul Schauer 17:44
Yeah, it could could be a huge challenge. So government folks consider whether you’re asking for a minor tweak that just requires text updates, or is it? Is it a redesign from an engineering perspective? We had one solicitation where they asked for this, I’m just going to genericized it, this this piece of machinery that had two main parts. Consider like two tires on the car. Right? So you design your system around two tires. And then with a week to go before the proposal due date, they said, Oh, no, we only wanted to have one tire. Okay, well, that’s that’s not just, oh, just just take one out. That’s a complete redesign of the whole system. Right? It was all bait built around two tires. And now Now you only need one. It’s a whole new proposal and to the to tire design. It wasn’t tires, of course, that’s just my weird example. The two tire design we’d been working on for months before the solicitation came out, because that’s what they’re signaling the whole time. Is we want the two tire design, right? And then Oh, yeah. So week to go. Just Just give me one tire? No, no, that’s not how it works. Right. They ended up canceling the whole procurement. Because it was such a huge change. That industry couldn’t respond in time.
Kevin Jans 19:11
This is the kind of stuff that as a contracting officer, I didn’t have context on what it took to go from something as big as two tire design to one tire design or something as small as just just update your pricing. Both of those can be heavy lifts. Because, again, I didn’t I didn’t know any different.
Paul Schauer 19:26
When in doubt, ask industry will tell you what it’ll take right. They’re not going to tell you longer than required because they don’t want to give their competitors any more time than necessary. Yeah, well said. That’s just just ask. Alright, last thing, government folks. Don’t change the solicitation after you’ve released it. Just because you realize that your preferred vendor is not going to win. And we all know the government has companies that they hope submit a good proposal and win this thing, especially in FAR Part 15. Bigger competitions are usually familiar with the offers. They have favorite human nature. But if you realize afterwards that if we change these things, then Steve would win this one. That’s a bad situation to be in. Because all of the non Steve offers mountain Steve’s, they’re all going to submit protests, or at least a couple of them are gonna submit, you’re gonna get protest is the point if you make it so that you’re favoring one vendor over the other. And I don’t know why I chose to call that vendor Steve. person, not a company. But maybe there’s a company called Steve.
Kevin Jans 20:31
The bigger impact of that is there are agencies that have a reputation for doing that. And as a result, people don’t believe them. So it is bigger than just them protesting.
Paul Schauer 20:40
Alright, industry, folks, be sure to track solicitations on the sam.gov contract opportunities site or whatever tool the government used to release it. Be sure to track for amendments, it’s up to you to find them. Once the government releases it on there. They don’t have to call you and tell you be sure to check for amendments. Exactly. That can hold your hand, they may be hoping that some people don’t check it and submit non compliant proposals. So they don’t have to evaluate so many things, right. But it’s up to you to pay attention. Make sure you’re aware of amendments. Also be sure once you get the amendment, be sure to review the entire amendment, all of the changes may not be apparent, right use that compare feature in software to compare the previous document with the the amended document. And think through how the changes you see impact every section of your proposal, not just the section, that that’s relevant to the part of the solicitation that was changed, right, it could ripple through everything.
Kevin Jans 21:44
Yeah a proposal is it’s a spiderweb. And you start pulling on one side, the other parts of the spiderweb. We’re going to move.
Paul Schauer 21:50
Industry folks, when there’s an amendment get to work, it probably means that there’s more proposal work remaining than you had planned for, and never seems like they extend that proposal due date long enough to really do a good job with these amendments, especially when they come late in the cycle. And if for any reason, you have more time than you think they extended the due date by five days, and you didn’t need that much. Be careful not to get sucked into that endless revise and improve cycle, right, just get it updated, review it, call it done. Take a nap.
Kevin Jans 22:26
Sometimes the reason that’s relevant is to come to the officer might just extended the due date by a couple of days because somebody asked, you know, whatever, the requirement didn’t change. So you’re done. So to your point, Paul, going back and we have two more days to review it. Oh, they gave us two more pages, let’s add some more blah, blah, it’s like no, that’s not making it better. So there is there isn’t, again, is proposal writings and thinking job too. It’s like you have to think through has this amendment impacted us enough that we have to actually change our proposal or it was good enough and moved on anyway.
Paul Schauer 22:56
Industry folks, you may be able to influence an amendment to the solicitation. But we talked about this a lot on the podcast, waiting until after the solicitation is released is super late in the game, right, your best chance to shape and acquisition is during the market research zone, or even the requirements zone very, very early on is your best chance to get a solicitation written that favors you.
Kevin Jans 23:23
The lesson here is that there are four acquisition time zones, requirement zone market research zone, RFP zone and selection zone. This is the third of the four. So as a contracting officer, when you come to me say Hey, can you change this to make it a small business set aside? I’m thinking there have been two entire zones before we got here that you could have brought that up and now you’re bringing it up? Yeah, no, I’m not gonna I’m not gonna change.
Paul Schauer 23:46
Nope. solicitations out you had your chance.
Kevin Jans 23:50
Yeah. So to your point, Paul, it’s, you can get them to change it, but it’s not the best place to start.
Paul Schauer 23:55
It’s more work for everyone. Right? If if the whole solicitation has been reviewed and approved and released, if people have already started to write proposals, oh, boy, more chance for protest to that you’re favoring someone. And speaking of things we favor podcasts that take less than 30 minutes. Let’s wrap this one up.
Kevin Jans 24:18
Okay. The rules for amendments are different than the rules for modifications when they happen, who can get them? It’s a different process. But it goes back to the basic element of this is a living document this solicitation until it’s close until proposals are submitted and we’re done evaluating them. This can be a living document if you’re gonna change anything about solicitation, an amendment is how you do it.
Paul Schauer 24:43
A seemingly simple change can ripple through all or many most parts have a solicitation. Yeah, so government folks, be sure you review carefully before you release the amendment. Make sure you’re not creating inconsistencies by only changing one part of it, I can’t tell you how many times I’ve seen amendment come out. And shortly thereafter there’s another amendment to amend the amendment to fix the inconsistencies that industry found was yeah, I probably did that too.
Kevin Jans 25:12
Ill. And second one for government, folks, is things take longer on industry side than you probably imagine. Yeah. Because it seems like a simple change that you’re making something as simple as, as the, the weight of the product, or the speed of the processor. That sounds like oh, yeah, it’s just an update. It might be bigger than that. So just be aware of that. And to your point, Paul, ask, ask them how much more time have mercy.
Paul Schauer 25:40
Industry folks, like I said before, be sure that you’re watching for amendments. There’s no requirement that the government confirms that everyone got the amendment and and understands it. Although I have seen the government on big proposals, make sure that everyone is aware, you don’t actually notify people that it’s out. They don’t have to. So make sure to pay attention. It’s in their own best interest. Right. Right. Make sure you get the amendment. Make sure you read the whole amendment. And think carefully about how and where it impacts your strategy and your proposal. Like you said, Kevin, amendments can cause a lot more proposal work than expected, then either side expects Yeah, either side. Yeah. So make sure you take the time to think through the impacts. If you’re the government before you release the amendment. And for industry, when you’re first reading the amendment, if you need more time, tell the government right away, hey, three days is not enough, can we get five, it’s very likely that they chose three or semi arbitrarily, it may be easy for him to give you five, it may not.
Kevin Jans 26:43
And then the last thing I’ll say about this whole concept is don’t try and amend your way to have good RFP. The best way to do this, as we’ve talked about this all the time is communicate with industry, communication between industry and government happening before the RFP releases. It’s so much easier, it’s it’s much less regulated. That’s the right term, more open communication, like in case we really didn’t get it right in the last two zones. This is how we can fix it. I’m raising my hand here. Don’t make this your plan to fix it. It’s like the strategy but we’ll fix it during our free release with amendments. Oh, that’s. It’s more painful.
Paul Schauer 27:18
Yeah, that’s a pretty solid way to wrap this up, Kevin. I’ll talk to you later. All right, I’ll see a ball All right. That’s it for today. We have this episode and other episodes organized into topical playlists. You can find those at Skywayacq.com/cop for contracting officer podcast. Thanks for joining us today, and we’ll see you next time.