2024: The FAR, Federal Acquisition Regulations - Part 11

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2024 Webinar Series
THE FAR
THE FAR – PART 11

2024 Webinar Series
THE FAR
FAR PART #11:
Describing Agency Needs
SPEAKER: Jeff Chiow, Co-Chair Govt. Contracts
Space & Satellite Industry
https://www.gtlaw.com/en/professionals/c/chiow-jeffery-m
FIRM: Greenberg Traurig
EMAIL: Jeff.chiow@gtlaw.com

2024 Webinar Series - THE FAR
OVERVIEW – FAR Part 11 – Describing Agency Needs
 FAR Part 10 Refresher
 Subpart 11.0 – Policy & Procedures
 Subpart 11.1 – Selecting and Developing Requirements Documents [F&O and Commercial]
 Subpart 11.2 – Using and Maintaining Requirements Documents
 Subpart 11.3 – Acceptable Material
 Subpart 11.4 – Delivery or Performance Schedules
 Subpart 11.5 – Liquidated Damages
 Subpart 11.6 – Priorities and Allocations [Defense Priorities and Allocations System – DPAS]
 Subpart 11.7 – Variation in Quantity
 Subpart 11.8 - Testing

FAR Part 10 Refresher
 Acquisitions begin with a description of the Government’s needs stated in terms sufficient to allow
conduct of market research. (10.002(a))
 Market research is then conducted to determine if commercial items or nondevelopmental items
are available to meet the Government’s needs or could be modified to meet the Government’s
needs. (10.002(b))
 Among other things, market research is required (10.001(a)(2)):
Before soliciting offers
Before awarding task orders under an IDIQ
On an ongoing basis
To determine the extent to which commercial items are suitable and, if not, whether nondevelopmental
items are available that meet or could be modified to meet the agency’s requirements or if the agency’s
requirements could be reasonably modified to procure commercial or nondevelopmental items
 Agencies shall – Conduct market research appropriate to the circumstances – Before developing
new requirements documents for an acquisition by that agency (10.001(a)(2))

11.0 – Policy and Procedures
 Agencies shall- specify needs using market research in a manner designed to-
 Promote full and open competition (see Part 6), or maximum practicable competition when using simplified acquisition
procedures, with due regard to the nature of supplies or services to be acquired (11.002(a)(1)(i))
 Only include restrictive provisions or conditions to the extent necessary to satisfy the needs of the agency or as authorized by
law. (11.002(a)(1)(ii))
 To the maximum extent practicable, ensure that acquisition officials-
 State requirements with respect to an acquisition of supplies or services in terms of
 Functions to be performed
 Performance required or
 Essential physical characteristics (11.002(a)(2)(i))
 Define requirements in terms that enable and encourage offerors to supply commercial products or commercial services or, if
commercial items are not available, developmental items (11.002(a)(2)(ii))
 Provide offerors of commercial or nondevelopmental products or services an opportunity to compete ((11.002(a)(2)(iii))
 Require prime contractors and subcontractors at all tiers to incorporate commercial products, services or nondevelopmental
items as components of items((11.002(a)(2)(iv))
 Modify requirements in appropriate cases to ensure that the requirements can be met by commercial products, services or
nonevelopmental items ((11.002(a)(2)(v))

11.0 – Policy and Procedures (cont.)
 Use the metric system unless impracticable or likely to cause inefficiencies or loss of markets to
US firms. ((11.002(b))
 To the extent practicable and without creating OCIs, give potential offerors an opportunity to
comment on agency requirements or recommend tailoring of acquisition documents (11.002(c))
 Pursue sustainable acquisition (FAR Part 23.1) (11.002(d))
 Performance levels or specifications can be targets (11.002(e))
 CO shall obtain requirements concerning disability and accessibility per Section 508 of the
Rehabilitation Act of 1973 (11.002(f))
 Unless waived by the Agency CIO, for IT acquisitions using Internet Protocol, reference the
appropriate USGv6 Profile (NIST SP 500-267) consistent with the agency’s enterprise
architecture (11.002(g))
 Absent a CO determination per FAR 7.108(a), no requirements prohibiting employee
telecommuting (11.002(h))

11.1 – Selecting and Developing
Requirements Documents
 11.101 Order of precedence
Required by law  Performance-oriented (PWS or SOO)  Detailed design documents  Government-published
standards and specifications
Agencies must use voluntary consensus standards (e.g. ISO, IEEE) when they exist in lieu of Government-specific
standards, unless illegal or impractical to do so
 11.102 Standardization program
Agencies shall select existing requirements documents or
Develop new requirements documents in accordance with FSPM-0001, DoD 4120.24-M (for DoD) and NIST’s FIPS
Publications for IT.
 11.103 Market acceptance
Where the agency’s minimum need is for an item with demonstrated reliability, performance or product support in a
specified environment, it may require demonstration of either commercial market acceptance or satisfactory supply under
a government contract. Solicitation criteria must be supported by market research and consider similar items
successfully delivered under recent or current government contracts. Commercial market acceptance shall not be the
sole criterion.

11.1 – Selecting and Developing
Requirements Documents (cont.)
 11.104 Use of brand name or equal purchase descriptions
Use of brand name or equal is not preferred, but sometimes appropriate.
Must describe the salient physical, functional, or performance characteristics of the brand name item that are required
 11.105 Items peculiar to one manufacturer
Agency requirements shall not be written to require a particular brand name, product or feature peculiar to once manufacturer,
unless –
The product or feature is essential and market research indicates similar products or features do not meet and cannot be
modified to meet agency requirements
A J&A supports an exception to full and open competition (FAR 6.302-1)
 Basis for restricting competition is documented and posted
FAR 5.102(a)(6) or 8.405-6 (FSS) or 16.505(a)(4)
 11.106 Purchase descriptions for service contracts
Avoid assigning inherently governmental functions to contractors, require proper Contractor i.d., and require markings of reports
produced by contractors
 11.107 Solicitation Provisions
Use 52.211-6 for Brand Name or Equal; Use 52.211-7 for Alternatives to Government-Unique Standards

11.2 – Using and Maintaining
Requirements Documents
 11.201 Identification and availability of specifications
When citing GSA Index of Federal Specifications, Standards and Commercial Item Descriptions or DoD Acquisition
Streamlining and Standardization Information System (ASSIST) or others, cite the approval and revision dates
Generally such documents will not be provided to offerors
Other pertinent documents shall be referenced and either provided or guidance given on how to access such documents
Document cross-references shall be limited with context given and conflicts avoided
The clause provides instructions to access government specifications
 11.202 Maintenance of standardization documents
Recommendations for changes to standardization documents should be sent to GSA FSS
Modifications to standardization documents must follow guidance documents
 11.203 Customer satisfaction
 11.204 Solicitation provisions and contract clauses – 52.211-1 through 52.211-4

11.3 – Acceptable Material
11.4 – Delivery or Performance Schedules
11.5 – Liquidated Damages
 11.302 Policy
Agencies must not require virgin materials unless law, regulation or safety considerations require it
Offers for non-commercial products must identify used, reconditioned or manufactured supplies or government surplus
proposed, which the CO must authorize; for commercial products, the CO must consider commercial practice
CO may request information for bio-based products in the solicitation, but not more data than would typically be provided
 11.304 Contract Clause – 52.211-5
 11.4 Time of delivery is an essential contract element, but schedules should not unnecessarily
restrict competition, harm small businesses, result in higher prices.
Schedules should consider urgency of need, industry practice, market conditions, small business capability etc.
Schedule can be based upon a calendar date, days after award, days from notice of award or days from task order award
52.211-8 through 52.211-10
 11.5 Only use liquidated damages clause when delay will damage Government in unknown
amount. Non-punitive, Government must mitigate and can waive. Clauses 52.211–11 through
52.211-13

11.6 Priorities and Allocations (DPAS)
 Defense Priorities and Allocation System (DPAS), a Commerce Department regulation in support
of approved national defense, emergency preparedness, and energy programs (See 15 CFR Part
700)
All DO rated orders have equal priority with each other and take preference over unrated orders
All DX rated orders have equal priority and take preference over DO rated and unrated orders
Elements of a rated order (15 CFR 700.12); accepting and rejecting rated orders (15 CFR 700.13); preferential
scheduling (15 CFR 700.14); extension of priority ratings flowdown (15 CFR 700.15); changes or cancellations of ratings
or orders (15 CFR 700.16); use of rated orders (15 CFR 700.17); and limitations on placing rated orders (15 CFR 700.18)
Other Government agencies, Canada and foreign nations may apply for priority rating authority
 COs, contractors and subcontractors at any tier having difficulties should seek special priorities
assistance (15 CFR 700.50-.55 and 700.80)
 Commerce takes action to enforce and COs shall promptly report all violations to Commerce
 Willful violation of DPAS requirements “is a criminal act, punishable as provided in the Defense
Production Act and as set forth in [15 CFR] 700.74”
 Clauses 52.211-14 and 52.211-15

11.7 Variation in Quantity
11.8 Testing
 17.701 Supply contracts – Variations in quantity should be based upon normal commercial
practices. Variation exceeding 10% or as otherwise established requires consideration. If
overdelivery, especially of small dollar overshipments, results in Government administrative
costs, clause 52.211-17 may allow for retention of small quantities or return or payment for large
overages at contract unit price.
 17.702 Construction contracts – When estimates vary greater than 15% an equitable adjustment
shall be made in contract price at either Government or contractor’s election. Contractor may
request associated schedule relief in writing within 10 days.
 17.703 Contract clauses – 52.211-16 through 52.211-18
 17.801 Supplies may be evaluated under comparable in-use conditions without a further test plan,
provided offerors are so advised in the solicitation.

2024 Webinar Series
THE FAR
THANK YOU FOR ATTENDING!
FAR PART #11:
Describing Agency Needs
SPEAKER: Jeff Chiow, Co-Chair Govt. Contracts
Space & Satellite Industry
https://www.gtlaw.com/en/professionals/c/chiow-jeffery-m
FIRM: Greenberg Traurig
EMAIL: Jeff.chiow@gtlaw.com

2024 Webinar Series
The FAR:
Federal Acquisition Regulations
THANK YOU FOR JOINING US!

2024: The FAR, Federal Acquisition Regulations - Part 11

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2024: The FAR, Federal Acquisition Regulations - Part 11