Okay: Fair opportunity explained

Many of us have watched in recent months as companies competed to win a spot on the two Networx contracts — Universal and Enterprise. Now that both contracts have been awarded, the real competition is just beginning. The latest battle comes under the innocent-sounding process known as “fair opportunity.”The term might be common in federal acquisition language, but there doesn’t seem to be a common understanding of what needs to happen next. Based on recent discussions my colleagues and I have had with people in government and industry, I worry that certain myths and misperceptions could make the next few months more difficult than they should be. In this column, I’ll try to shed some light on this critical step that precedes the transition to Networx by answering some typical questions that agencies might have.  There are two good reasons for an agency to exercise fair opportunity. First, the Federal Acquisition Regulation requires it. The relevant FAR clause is simple: All contractors in a multiple-award contract must be given a fair opportunity to be considered for an order placed under that contract (FAR 16.505[b]). The General Services Administration included that citation in the requests for proposals for both Networx components, which means federal agencies may not place orders against either contract until they have completed a fair-opportunity process for the services they plan to order. The second reason to exercise fair opportunity is to ensure that you will be getting the best deal for your agency. As a buyer, you strengthen your bargaining position when you give all of the awardees on the contract a chance to compete.In the end, some agencies will select their incumbent provider while others will choose to award some or all of their requirements to a new player. Whatever the outcome, a truly fair fair-opportunity process will give everyone — you, your boss, your agency customers, GSA and all of the Networx winners — assurance that you made the right decision for the right reasons. The most fundamental rule is to create a level playing field for all companies that hold the chosen contract, in this case either Universal or Enterprise. That approach follows the reasoning behind the FAR rule that states an agency may not aggregate orders or split orders to pre-select a particular contractor. Furthermore, an agency may not formulate a statement of work to give an unfair advantage to one contractor. In addition, the total price or cost to the agency must be a factor in the decision to select a vendor. Price may be the only factor, or the agency may use a combination of technical capabilities, past performance, and price or cost. A good business approach would be to base the selection criteria on the features of each particular case. For example, technical factors might be more important for complex services that cover a wide geographical area, while price might be the overriding factor for a commodity service such as a data circuit between two offices.  The FAR offers a high-level overview. The Networx request for proposals cites the applicable FAR clause and repeats the relevant information. GSA presented briefings on the subject at each of the Networx transition summits held in September 2006 and this year. The planning and execution details are left to agencies’ Networx contracting officers, with whom GSA has met to discuss that topic on more than one occasion, most recently in May. The FAR identifies agencies’ designated Networx contracting officers as the people responsible for fair opportunity. The details of planning and executing the process are left to the discretion of the lead contracting officer who is authorized to use the overall contract. That person will be responsible for fair opportunity in each of the respective departments and agencies.  In practical terms, the agency’s telecom employees — especially the transition manager — will work closely with the contracting officer to plan and carry out fair opportunity. For example, the transition manager would be the most knowledgeable expert on the agency’s network architecture, current services, short- and long-range telecom plans, and requirements that Networx should satisfy.On the other hand, the transition manager would be the best person to identify Universal or Enterprise as the contract of choice for a particular set of requirements. In most cases, fair opportunity will involve collaboration among telecom managers in the various organizational units, the lead transition manager and the agency’s contracting officer.  Networx is so different from FTS 2001, the GSA telecom program that is near its end, that a simple transition is mostly a fantasy. Compared with that contract, Networx offers more services and many different contract line-item numbers, prices, service-level agreements, and ordering and billing procedures. The question also implies a simple like-for-like transition, which might not be the best long-term strategy. The transition-planning period is an excellent time to evaluate your agency’s telecom requirements for the next three to five years and examine the full range of services available under Networx. In many cases, like-for-like choices won’t be the optimal solution.Finally, talk with some of the survivors of the last transition who remember that many Sprint customers on FTS 2000 selected the company as their FTS 2001 carrier. They expected an easy transition of merely writing new service orders. However, the experience proved much more complex and time consuming than they expected, and the change to Networx will make that earlier transition seem easy.  The FAR does not prohibit meeting with contractors prior to completing fair opportunity. In fact, GSA’s guidelines say that agencies may hold oral discussions with all contractors that offer the services they wish to order. This is a matter of discretion, and an agency’s fair opportunity plan should address it.  Agencies should make their contractor choices based on as much information as they can assemble and analyze in a reasonable time. Meeting individually with all selected Networx contractors is a sound business practice. It is a good way to learn the details of each company’s services and its plans and preparations for transition.  Aside from meeting with agencies, contractors should provide marketing materials, product specifications, contract-award evaluation data, contract data and other information.  GSA has offered agencies the full 10-year pricing data from each Networx Universal awardee, and agencies would be well-advised to take advantage of that information. As demonstrated by those questions and answers, the simple concept of fair opportunity will not be so simple to implement. Regulations and guidelines provide a lot of room for interpretation and missteps. GSA has already briefed agency contracting officers and telecom managers, but officials might need to provide more coaching and counseling to agencies as they conduct their processes. Meanwhile, the winners of the Networx contracts must prepare for fair opportunity and realize that the real competition begins now.