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No.  You can draw your own line.  

Isn't that the best possible answer?  I hope you aren't looking for a dogmatic answer.

The way I look at it, fact-finding is for understanding while negotiating is for bargaining (may include "persuasion, alteration of assumptions and positions, give-and-take, and may apply to price, schedule, technical requirements, type of contract, or other terms").  Generally, fact-finding will not result in a proposal revision, but negotiations likely will.

If you want to do light or heavy fact-finding before you start negotiations, that is fine.  Indeed, you might want to do some fact-finding to help you develop your prenegotiation objective.  If any of your colleagues do not understand the nuance between fact-finding and negotiation, you may point them to FAR 15.406-1(a) where fact-finding occurs before development of the prenegotiation objective.

How about an oral fact-finding session, where you meet (maybe on TEAMS) and talk about the sole-source proposal that is on the table where everyone understands that the purpose is just understanding?  This might be far more beneficial and meaningful than written exchanges.

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1 hour ago, CS0611 said:

Is there a clear line between what type of questions are acceptable to ask during fact-finding vs negotiating in a sole-source acquisition?

No. There is no clear line.

In a sole source negotiation fact-finding is traditionally a part of cost analysis, and you may ask any questions you like that you think are pertinent to the matter at hand. Such questioning may continue into and throughout negotiation.

Ask whatever questions you like in order to get the information you need to reach an agreement on price and mutual assent to contract terms.

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Thank you so much for your responses!

I got into a situation where the Program Office was requesting the Offeror to "adjust/reduce" hours and costs and then calling it "Fact-Finding". Additionally, they alluded to Contracting Officer/Specialist does not need to be involved when it's "Fact-Finding".

I immediately put a stop to it and started working on developing some type of reference chart for what is considered "Fact-Finding" and what crosses the line into "negotiation". 

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4 hours ago, CS0611 said:

I immediately . . . started working on developing some type of reference chart for what is considered "Fact-Finding" . . .

Don't make it dogmatic.  Keep it flexible.  Allow for both discretion and initiative.  

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6 hours ago, CS0611 said:

I got into a situation where the Program Office was requesting the Offeror to "adjust/reduce" hours and costs and then calling it "Fact-Finding". Additionally, they alluded to Contracting Officer/Specialist does not need to be involved when it's "Fact-Finding".

I immediately put a stop to it and started working on developing some type of reference chart for what is considered "Fact-Finding" and what crosses the line into "negotiation". 

Look at it from the Program Offices side.  What value or benefit is for you to be a part?  Are you going to contribute in a positive way in arriving at the deal?  Will you make their jobs easier in compiling your file documentation?  Will you assist or even lead in negotiations or “fact finding”.  In our field, it’s important to earn trust and respect.  That starts from demonstrating how we can help.  Preparing a reference chart showing them “crossing the line” doesn’t get you very far.  They need to see how you fit into helping their program succeed. 

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On 5/24/2021 at 6:15 AM, CS0611 said:

Is there a clear line between what type of questions are acceptable to ask during fact-finding vs negotiating in a sole-source acquisition?

Fact-finding is not defined in FAR and it appears in only four places. In my own experience the most pertinent reference is in FAR 15.406-1(a):

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(a) The prenegotiation objectives establish the Government's initial negotiating position. They assist in the contracting officer's determination of fair and reasonable price. They should be based on the results of the contracting officer's analysis of the offeror's proposal, taking into consideration all pertinent information including field pricing assistance, audit reports and technical analysis, fact-finding results, independent Government cost estimates and price histories.

The term appears in 41 places within the FAR System overall, in all sorts of contexts, including dispute resolution, debarment and suspension proceedings, payment of gratuities,  etc.

The DAU Contract Pricing Reference Guides, Vol. 5, Ch. 1 defines it as follows:

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In noncompetitive negotiations, exchanges [of information] after receipt of proposals and prior to negotiations are normally referred to as fact-finding.

Black's Law Dictionary, 11th ed., defines it as follows:

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fact-finding (1909) 1. The process of considering the evidence presented to determine the truth about a disputed point of fact. 2. Int'l law. The gathering of information for purposes of international relations, including the peaceful settlement of disputes and the supervision of international agreements. • Examples of fact-finding include legislative tours to acquire information needed for making decisions at an international level. — Often written factfinding. — Also termed inquiry.

CS0611 appears to be referring to the inquiry that precedes price negotiations in a sole source procurement. If so, then fact-finding is the province of the contracting officer, not the program office. See FAR 15.404-1(a)(1):

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The contracting officer is responsible for evaluating the reasonableness of the offered prices. The analytical techniques and procedures described in this subsection may be used, singly or in combination with others, to ensure that the final price is fair and reasonable. The complexity and circumstances of each acquisition should determine the level of detail of the analysis required.

The program office is merely support.

14 hours ago, formerfed said:

Look at it from the Program Offices side.  What value or benefit is for you to be a part?  Are you going to contribute in a positive way in arriving at the deal?  Will you make their jobs easier in compiling your file documentation?  Will you assist or even lead in negotiations or “fact finding”.  In our field, it’s important to earn trust and respect.  That starts from demonstrating how we can help.  Preparing a reference chart showing them “crossing the line” doesn’t get you very far.  They need to see how you fit into helping their program succeed. 

As a contract specialist, I would not think I owed the program office any explanation of my value or benefit in fact-finding in a sole source negotiation. If I did, it would mean I was an abject failure.

See FAR 15.405(a):

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The purpose of performing cost or price analysis is to develop a negotiation position that permits the contracting officer and the offeror an opportunity to reach agreement on a fair and reasonable price. A fair and reasonable price does not require that agreement be reached on every element of cost, nor is it mandatory that the agreed price be within the contracting officer’s initial negotiation position. Taking into consideration the advisory recommendations, reports of contributing specialists, and the current status of the contractor’s purchasing system, the contracting officer is responsible for exercising the requisite judgment needed to reach a negotiated settlement with the offeror and is solely responsible for the final price agreement. However, when significant audit or other specialist recommendations are not adopted, the contracting officer should provide rationale that supports the negotiation result in the price negotiation documentation.

Emphasis added.

I led fact-finding in sole source acquisitions of research and development, development of spacecraft ground systems, development of anti-satellite systems, large-scale construction, and others. No one ever questioned my role in any of those cases. But I worked for disciplined professional acquisition organizations.

If CS0611 is talking about a different kind of proceeding other than fact-finding to determine price reasonableness, then he or she should tell us.

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19 hours ago, Vern Edwards said:

As a contract specialist, I would not think I owed the program office any explanation of my value or benefit in fact-finding in a sole source negotiation. If I did, it would mean I was an abject failure.

Two schools on that participation.  One is the contract specialist is required to be present.  The other is the program office values the contract specialist’s input and wants them there.  I was advocating the latter.  I don’t see us doing the job right if program offices don’t see out jobs as assisting them with their program needs.

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16 hours ago, formerfed said:

Two schools on that participation.  One is the contract specialist is required to be present.  The other is the program office values the contract specialist’s input and wants them there.  I was advocating the latter.  I don’t see us doing the job right if program offices don’t see out jobs as assisting them with their program needs.

@formerfed

I presume that we are talking about the fact-finding that precedes negotiation of a sole source contract—the fact-finding that follows receipt of the prospective contractor's proposal and that is conducted in order to obtain information necessary for contract negotiation, including the negotiation of both nonprice and price terms.

If my presumption is correct, then my position is that the contracting officer or contract specialist does not "participate" in fact-finding, but manages that process. It is the program office that "participates," in order to support the CO or CS.

My first job title was "contract negotiator," not contract specialist, and I conducted many sole source contract negotiations. It was a routine assignment. I conducted fact-finding without program office personnel, but the CO's that I worked for, and I, when I became a CO, would not have countenanced allowing the program office to engage in fact-finding prior to negotiation without my presence or the presence of one of my CSs, except with my permission.

I must be misunderstanding the intent of your posts in this regard, or what you mean by "fact-finding," because I find it hard to believe that you would advocate that a program office conduct fact-finding pending contract negotiation without a CO or CS being present, except with the CO's or CS's permission. And I have never thought that a CO or CS should have to persuade a program office that he or she had something to contribute to the fact-finding process in order to participate.

I don't think there are "two schools." Who teaches the second school?

Please straighten me out on this, formerfed.

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Thank you, Vern. I completely agree with your school of thought. Contracting should serve as the lead in any and all conversations/communications prior to award.

The program that I have taken over consists of numerous moving parts and the previous CO/CS was not as involved in fact-finding questions that the program office sent to the contractor. Since taking over, I have noticed that the program office was actually negotiating with the contractor and revised proposals would be submitted. 

I explained the issues with the program office that they do not have the authority to negotiate on behalf of the government and when they ask the contractor to "adjust/reduce" costs, that is considered negotiating. Additionally, I requested that they send me all of the fact-finding questions they have for me to review prior to dissemination to the contractor.

They asked for a handout to help them understand the differences when drafting any fact-finding questions for the future, which is why I asked the original question.

I would like to thank everyone for their feedback and this helpful discussion.

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I agree with both Vern's and formerfed's sentiments -- yes, the contracting officer should drive the process (hat tip to Vern); and yes, the contracting officer should offer real and meaningful value (hat tip to formerfed).  I think we will all agree with these, but reality in many agencies may suggest that contracting officers don't always offer value.

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7 hours ago, Vern Edwards said:

@formerfed

Please straighten me out on this, formerfed.

@Vern Edwards

My fault for the mixup.  Poor choice of wording.  The CS or CO should always be a part of fact finding (unless they opt out for some reason).  What I meant was the CS or CO can inject themselves on hearing about fact finding stating their involvement is a requirement.  The other situation is a program office has a good relationship with the CS or CO and sees their value.  The program office invites them as a key participant because of their expertise.

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33 minutes ago, formerfed said:

The program office invites them as a key participant because of their expertise.

@formerfed The contracting officer is preparing to negotiate a contract and the program office decides to conduct fact-finding and "invites" the CO?   

No.

When a contracting officer is preparing to negotiate a contract the program office keeps its "mouth" shut until the contracting officer invites them to proceed, and then speaks only when invited to do so. It's the contracting officer who does the inviting, not the program office.

You cannot have two parties independently representing the government in such a situation. There is only one mouthpiece, and that is the CO.

Maybe I'm still misunderstanding you. You must be talking about presolicitation exchanges of information. Right?

Please clarify!

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@Vern Edwards

I’m talking about the program office wanting them there versus having to have them there.  In the first case, they see the CS/CO as valuable.  The original poster said the program office was doing “fact finding” and the CS/CO doesn’t need to be involved.  That’s an example of not wanting the CS/CO present.  Presumably they don’t see the CS/CO as helpful.  

I have no idea what’s happening in this situation but I’ve heard in similar situations program offices say “fact finding” is just gathering information to better understand the proposal.  They swear it’s not discussions.  

I’m not disagreeing.  I’m just saying COs can be viewed as a necessary evil or a valuable asset by program offices.  In one case the CO says “you can’t do that because I’m in charge.”  In the other extreme, a program office says “let’s get the CO involved before we do anything.”  There are lots of gray areas for CO involvement or not.  

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@formerfed

4 hours ago, formerfed said:

I’m talking about the program office wanting them there versus having to have them there.

I'm quitting this topic, because I don't get what you're saying.

COs and CSs must have fallen very low in organizational esteem if they have to justify their "participation" in fact-finding prior to negotiation.

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21 hours ago, CS0611 said:

Thank you, Vern. I completely agree with your school of thought. Contracting should serve as the lead in any and all conversations/communications prior to award.

The program that I have taken over consists of numerous moving parts and the previous CO/CS was not as involved in fact-finding questions that the program office sent to the contractor. Since taking over, I have noticed that the program office was actually negotiating with the contractor and revised proposals would be submitted. 

I explained the issues with the program office that they do not have the authority to negotiate on behalf of the government and when they ask the contractor to "adjust/reduce" costs, that is considered negotiating. Additionally, I requested that they send me all of the fact-finding questions they have for me to review prior to dissemination to the contractor.

They asked for a handout to help them understand the differences when drafting any fact-finding questions for the future, which is why I asked the original question.

I would like to thank everyone for their feedback and this helpful discussion.

As I read through the thread these lingering thoughts kept coming to mind about a handout.

First, I kept thinking about FAR 1.102-4(a) and FAR 1.602-1.  Now by themselves they may not be convincing to the program office so then my thoughts go to this as represented by an example.

When I was in the situation, which occurred more than once in my career, I would remind the program folks that the FAR is just not some book sitting on my shelf, it is in fact 48 CFR Part 1, and part (whatever agency supplement there was).  In a specific situation with the program folks in the arena of Environmental Impact Statements I asked if a certain activity was allowed.   They came back to me and said no.   I asked well why not?  Their response was well the regulations do not allow it.   And I asked what regulation and they would reference the CFR.  By recollection I had a similar conversation with law enforcement types as well.    

My point - Now I do not know what kind of program you are dealing with but the example might just work where your handout sets the stage to let the program folks know that your position (as supported by a conversation here in this thread) is fully supported by regulation, the CFR.  Like it not their authority is subject to regulatory sideboards which you are charged in supporting and applying.

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