9.505-2 Preparing specifications or work statements
Source: FAR 9.505-2 on acquisition.gov
Contractors who help prepare specifications or work statements for competitive acquisitions are generally barred from supplying the resulting items or services to prevent unfair competitive advantage, with limited exceptions.
Overview
FAR 9.505-2 addresses organizational conflicts of interest (OCI) related to contractors who prepare specifications or work statements for government acquisitions. The regulation aims to prevent contractors from gaining an unfair competitive advantage by restricting their eligibility to compete for contracts based on specifications or work statements they helped develop, except under certain circumstances. This ensures the integrity and fairness of the procurement process, particularly for nondevelopmental items and systems or services acquired competitively.
Key Rules
- Restrictions on Contractors Preparing Specifications
- Contractors who prepare complete specifications for nondevelopmental items for competitive acquisitions are generally barred from supplying those items as a prime or subcontractor for a reasonable period, typically covering the initial production contract.
- Exceptions to Restrictions
- The restriction does not apply if the contractor provides specifications at the Government’s request for a product they supply, or if they assist as industry representatives under Government supervision.
- Drafting Specifications for Nondevelopmental Equipment
- A contractor drafting specifications for nondevelopmental equipment should be excluded from production competition to avoid biased specifications and ensure fair competition.
- Development Work
- No prohibition applies to development contractors, as their competitive advantage is considered unavoidable and not unfair.
- Preparing Work Statements
- Contractors who prepare or assist in preparing work statements for competitive acquisitions may not supply the system or services unless they are the sole source, participated in development/design, or multiple contractors were involved in preparing the work statement.
Responsibilities
- Contracting Officers: Must identify and mitigate potential OCIs, enforce restrictions, and ensure exceptions are justified and documented.
- Contractors: Must disclose involvement in preparing specifications or work statements and comply with restrictions on subsequent participation.
- Agencies: Should prepare their own work statements when possible and supervise contractor involvement to prevent bias.
Practical Implications
- This regulation exists to prevent conflicts of interest and ensure fair competition in government contracting.
- Contractors must be vigilant about their roles in specification or work statement preparation to avoid disqualification from future opportunities.
- Common pitfalls include failing to recognize when restrictions apply or not documenting exceptions properly.
(a)
(1) If a contractor prepares and furnishes complete specifications covering nondevelopmental items, to be used in a competitive acquisition, that contractor shall not be allowed to furnish these items, either as a prime contractor or as a subcontractor, for a reasonable period of time including, at least, the duration of the initial production contract. The restriction in this paragraph (a)(1) shall not apply to-
(i) Contractors that furnish at Government request specifications or data regarding a product they provide, even though the specifications or data may have been paid for separately or in the price of the product; or
(ii) Situations in which contractors, acting as industry representatives, help Government agencies prepare, refine, or coordinate specifications, regardless of source, provided this assistance is supervised and controlled by Government representatives.
(2) If a single contractor drafts complete specifications for nondevelopmental equipment, it should be eliminated for a reasonable time from competition for production based on the specifications. This should be done in order to avoid a situation in which the contractor could draft specifications favoring its own products or capabilities. In this way the Government can be assured of getting unbiased advice as to the content of the specifications and can avoid allegations of favoritism in the award of production contracts.
(3) In development work, it is normal to select firms that have done the most advanced work in the field. These firms can be expected to design and develop around their own prior knowledge. Development contractors can frequently start production earlier and more knowledgeably than firms that did not participate in the development, and this can affect the time and quality of production, both of which are important to the Government. In many instances the Government may have financed the development. Thus, while the development contractor has a competitive advantage, it is an unavoidable one that is not considered unfair; hence no prohibition should be imposed.
(b)
(1) If a contractor prepares, or assists in preparing, a work statement to be used in competitively acquiring a system or services-or provides material leading directly, predictably, and without delay to such a work statement-that contractor may not supply the system, major components of the system, or the services unless-
(i) It is the sole source;
(ii) It has participated in the development and design work; or
(iii) More than one contractor has been involved in preparing the work statement.
(2) Agencies should normally prepare their own work statements. When contractor assistance is necessary, the contractor might often be in a position to favor its own products or capabilities. To overcome the possibility of bias, contractors are prohibited from supplying a system or services acquired on the basis of work statements growing out of their services, unless excepted in paragraph (b)(1) of this section.
(3) For the reasons given in paragraph (a)(3) of this section, no prohibitions are imposed on development and design contractors.