Does the FAR or any other contracting regulation prohibit a pre-RFP site walk with the POCA contractor, the customer, and COR to better define the scope and statement of work (SOW) prior to the issuance of the RFP by the KO? Would there be any restrictions, limitations, or disclaimers required?
Based on the information available, the following is offered in response:
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The POCA contract appears to be an indefinite delivery (ID) contract discussed in FAR Subpart 16.5 for completion of construction projects. I can find not prohibition from performing a site visit with the contractor prior to issuing the request for proposal since there is only a single indefinite delivery contract. The below FAR references encourage holding the site visit rather than prevent such action. The basic ID contract should contain the clauses FAR 52.236-3 and FAR 52.236-27 both of which encourage site visits in the strongest sense. FAR 15.201(c) promotes early exchanges of information between the Government and potential contractors to include site visits. In addition FAR 1.102-4(d) states that the acquisition team, led by the contracting officer, should be innovative and use sound business judgment. A site visit with the single ID contractor appears to be "sound business judgment" not prohibited by FAR or other regulation, executive order, or statute...
FAR 1.102-4 -- Role of the Acquisition Team.
(a) Government members of the Team must be empowered to make acquisition decisions within their areas of responsibility, including selection, negotiation, and administration of contracts consistent with the Guiding Principles. In particular, the contracting officer must have the authority to the maximum extent practicable and consistent with law, to determine the application of rules, regulations, and policies, on a specific contract.
(b) The authority to make decisions and the accountability for the decisions made will be delegated to the lowest level within the System, consistent with law.
(c) The Team must be prepared to perform the functions and duties assigned. The Government is committed to provide training, professional development, and other resources necessary for maintaining and improving the knowledge, skills, and abilities for all Government participants on the Team, both with regard to their particular area of responsibility within the System, and their respective role as a team member. The contractor community is encouraged to do likewise.
(d) The System will foster cooperative relationships between the Government and its contractors consistent with its overriding responsibility to the taxpayers.
(e) The FAR outlines procurement policies and procedures that are used by members of the Acquisition Team. If a policy or procedure, or a particular strategy or practice, is in the best interest of the Government and is not specifically addressed in the FAR, nor prohibited by law (statute or case law), Executive order or other regulation, Government members of the Team should not assume it is prohibited. Rather, absence of direction should be interpreted as permitting the Team to innovate and use sound business judgment that is otherwise consistent with law and within the limits of their authority. Contracting officers should take the lead in encouraging business process innovations and ensuring that business decisions are sound.
FAR 15.201 -- Exchanges With Industry Before Receipt of Proposals.
(a) Exchanges of information among all interested parties, from the earliest identification of a requirement through receipt of proposals, are encouraged. Any exchange of information must be consistent with procurement integrity requirements (see 3.104). Interested parties include potential offerors, end users, Government acquisition and supporting personnel, and others involved in the conduct or outcome of the acquisition.
(b) The purpose of exchanging information is to improve the understanding of Government requirements and industry capabilities, thereby allowing potential offerors to judge whether or how they can satisfy the Government’s requirements, and enhancing the Government’s ability to obtain quality supplies and services, including construction, at reasonable prices, and increase efficiency in proposal preparation, proposal evaluation, negotiation, and contract award.
(c) Agencies are encouraged to promote early exchanges of information about future acquisitions. An early exchange of information among industry and the program manager, contracting officer, and other participants in the acquisition process can identify and resolve concerns regarding the acquisition strategy, including proposed contract type, terms and conditions, and acquisition planning schedules; the feasibility of the requirement, including performance requirements, statements of work, and data requirements; the suitability of the proposal instructions and evaluation criteria, including the approach for assessing past performance information; the availability of reference documents; and any other industry concerns or questions. Some techniques to promote early exchanges of information are --
(1) Industry or small business conferences;
(2) Public hearings;
(3) Market research, as described in Part 10;
(4) One-on-one meetings with potential offerors (any that are substantially involved with potential contract terms and conditions should include the contracting officer; also see paragraph (f) of this section regarding restrictions on disclosure of information);
(5) Presolicitation notices;
(6) Draft RFPs;
(8) Presolicitation or preproposal conferences; and
(9) Site visits.
FAR 52.236-27 -- Site Visit (Construction). Site Visit (Construction) (Feb 1995)
(a) The clauses at 52.236-2, Differing Site Conditions, and 52.236-3, Site Investigations and Conditions Affecting the Work, will be included in any contract awarded as a result of this solicitation. Accordingly, offerors or quoters are urged and expected to inspect the site where the work will be performed...
FAR 52.236-3 -- Site Investigation and Conditions Affecting the Work (Apr 1984)
(a) The Contractor acknowledges that it has taken steps reasonably necessary to ascertain the nature and location of the work, and that it has investigated and satisfied itself as to the general and local conditions which can affect the work or its cost, including but not limited to...