FAR 9.505-2—Preparing specifications or work statements.
Plain-English Summary
FAR 9.505-2 addresses organizational conflicts of interest that arise when a contractor helps the Government define what it will buy and then seeks to sell that same item or service back to the Government. This section covers two related but distinct situations: (1) preparing or furnishing complete specifications for nondevelopmental items used in a competitive acquisition, and (2) preparing or assisting in preparing a work statement for a competitively acquired system or services, including providing material that leads directly, predictably, and without delay to that work statement. It explains when a contractor must be excluded from later competition, the limited exceptions to that exclusion, and why development and design contractors are treated differently. The rule exists to prevent biased specifications, favoritism, and the appearance that a contractor shaped the requirement to match its own product or capability. In practice, it means agencies must manage contractor involvement in requirements development carefully, and contractors must understand that helping write the requirement can disqualify them from the resulting procurement unless a specific exception applies.
Key Rules
Complete specs create exclusion
If a contractor prepares and furnishes complete specifications for nondevelopmental items used in a competitive acquisition, that contractor generally may not furnish those items as either a prime contractor or subcontractor for a reasonable period, at least through the initial production contract. The purpose is to prevent a contractor from writing specifications that favor its own product or solution.
Limited exceptions for specs
The exclusion does not apply when the contractor merely provides specifications or data about a product it already supplies at Government request, even if the Government paid separately for that information. It also does not apply when contractors act as industry representatives helping the Government prepare, refine, or coordinate specifications, so long as Government personnel supervise and control the effort.
Single drafter of equipment specs
If one contractor drafts complete specifications for nondevelopmental equipment, that contractor should be removed for a reasonable time from competition for production based on those specifications. This reduces the risk of self-dealing and helps ensure the Government receives unbiased advice and avoids favoritism concerns.
Development contractors are not barred
No prohibition is imposed on contractors performing development work, even though they may have a competitive advantage because of their technical knowledge and prior involvement. The FAR recognizes that development firms often are the most capable of moving into production and that this advantage is a normal and unavoidable result of the development process.
Work statements trigger broader restriction
If a contractor prepares or assists in preparing a work statement for a competitive acquisition of a system or services, or provides material that leads directly, predictably, and without delay to that work statement, the contractor generally may not supply the system, major components, or services. This restriction applies unless one of the stated exceptions is met.
Work statement exceptions
A contractor may still supply the system or services if it is the sole source, if it participated in the development and design work, or if more than one contractor was involved in preparing the work statement. These exceptions recognize situations where the risk of bias is reduced or competition is not meaningfully available.
Agency-prepared statements preferred
Agencies should normally prepare their own work statements. When contractor assistance is needed, the Government must be alert to the possibility that the assisting contractor could shape the requirement to favor its own products or capabilities, which is why the restriction exists.
Responsibilities
Contracting Officer
Identify when contractor involvement in specifications or work statements creates an organizational conflict of interest, apply the appropriate exclusion or exception, and ensure the procurement record supports the decision. The contracting officer should also structure the acquisition to minimize contractor influence over requirements and protect the integrity of competition.
Agency
Prepare its own work statements whenever practicable, supervise and control any contractor assistance used in developing specifications, and manage the procurement to avoid biased requirements and favoritism. The agency must also determine whether an exception applies before allowing the contractor to compete for the resulting award.
Contractor
Disclose and avoid situations where its role in drafting specifications or work statements could create a conflict with later participation in the resulting competition. If the contractor is asked to assist the Government, it must understand that such assistance may bar it from supplying the item or service unless an exception applies.
Government Representatives
Supervise and control contractor participation when contractors act as industry representatives helping prepare, refine, or coordinate specifications. They must ensure the contractor’s role remains advisory and does not improperly influence the requirement in a way that creates bias.
Practical Implications
A contractor that helps write the requirement may be shut out of the follow-on competition, so firms should assess conflict risk before accepting advisory or drafting support work.
The biggest pitfall is assuming that any technical assistance is harmless; even material that leads directly, predictably, and without delay to a work statement can trigger the restriction.
Agencies should document whether the contractor merely provided product data at Government request, acted under Government supervision as an industry representative, or fell within one of the work-statement exceptions.
Development and design work is treated differently from specification-writing work, so firms with prior development involvement are not automatically disqualified from production opportunities.
Contracting officers should watch for situations where a single contractor dominates requirements drafting, because that creates both actual and perceived favoritism risks.
Official Regulatory Text
(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.