Effecting Change One Unsolicited Proposal at a Time

The theme “Effecting Change” conjures up images of transforming the way the U.S. Government does business. From time-to-time, steps are taken in that direction. In the early 1990s, for example, a commission called the “Section 800 Panel” made recommendations that led to the Federal Acquisition Streamlining Act of 1994, a law that some consider the most significant acquisition reform between the passage of the Armed Forces Procurement Act of 1947 and today. The same decade saw the sweeping “FAR Part 15 Rewrite,” which changed how many procurements were conducted.

More often, however, change is incremental. That’s not to say that the Government doesn’t invite new ideas from contractors. To the contrary, Federal Acquisition Regulation (FAR) 15.602 says:

It is the policy of the Government to encourage the submission of new and innovative ideas in response to Broad Agency Announcements, Small Business Innovation Research topics, Small Business Technology Transfer Research topics, Program Research and Development Announcements, or any other Government-initiated solicitation or program. When the new and innovative ideas do not fall under topic areas publicized under those programs or techniques, the ideas may be submitted as unsolicited proposals.

Thus, the Government recognizes that contractors may have better ideas about how the Government should do things.

The programs listed in the above FAR provision have different purposes and involve varying degrees of formality. A Broad Agency Announcement (BAA) details the procedures for the acquisition of basic and applied research and that part of development not related to the development of a specific system or hardware procurement. According to FAR 35.016, BAA’s may be used by agencies to fulfill their requirements for scientific study and experimentation directed toward advancing the state-of-the-art or increasing knowledge or understanding rather than focusing on a specific system or hardware solution. The BAA technique may only be used when meaningful proposals with varying technical/ scientific approaches can be reasonably anticipated. When a BAA is used, the primary bases for selecting proposals for acceptance are supposed to be technical factors, importance to agency programs, and fund availability. Cost realism and reasonableness also should be considered to the extent appropriate.

The Small Business Innovation Research (SBIR) Program is designed to strengthen the role of innovative small business concerns in Federally-funded research or research and development (R/R&D). Specific program purposes are to: (1) stimulate technological innovation; (2) use small business to meet Federal research and research and development (R/R&D) needs; (3) foster and encourage participation by socially and economically disadvantaged small businesses and women-owned small businesses in technological innovation; and (4) increase private sector commercialization of innovations derived from Federal R/R&D, thereby increasing competition, productivity and economic growth. Federal agencies participating in the SBIR Program are obligated to follow the guidance provided by the Small Business Administration in the SBIR Policy Directive.

As noted, when new and innovative ideas do not fall under any of the programs or acquisition techniques described above, the ideas may be submitted as unsolicited proposals. FAR 15.603(a) says:

Unsolicited proposals allow unique and innovative ideas or approaches that have been developed outside the Government to be made available to Government agencies for use in accomplishment of their missions.

FAR 15.603 further explains:

(c)   A valid unsolicited proposal must:

1. Be innovative and unique;
2. Be independently originated and developed by the offeror;
3. Be prepared without Government supervision, endorsement, direction, or direct Government involvement;
4. Include sufficient detail to permit a determination that Government support could be worthwhile and the proposed work could benefit the agency’s research and development or other mission responsibilities;
5. Not be an advance proposal for a known agency requirement that can be acquired by competitive methods; and
6. Not address a previously published agency requirement.

Different from an “unsolicited proposal” is an “alternate proposal.” It is not uncommon that an offeror wants to respond to an RFP with a technical solution or a pricing method that would not be compliant with the solicitation. In such a situation, the answer may be to submit two proposals–one proposal that complies with the RFP, and a second proposal, the “alternate proposal,” which offers something completely different. Before submitting an alternate proposal, offerors should confirm whether the solicitation permits or prohibits them. And, appropriate language should be included in the compliant proposal confirming that the offeror is willing to play by the Government’s rules if that is what the Government prefers.

One final note: There are situations in which a contractor that proposed a new way of doing things could be disqualified from implementing its own suggestions due to an organizational conflict of interest (OCI). That’s too big a topic for this article, but be aware!

This article originally appeared in the March 2019 eZine of the Association of Proposal Management Professionals - National Capital Area Chapter.

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Shlomo D. Katz

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Kenneth B. Weckstein

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