The biggest barrier to innovation in government isn’t technology—it’s procurement. In this high-energy talk from Prodacity 2025, Jonathan Mostowski, President of Agile Acquisitions, LLC, shares how agencies can stop treating the FAR as a rulebook and start using it as a roadmap for smarter, faster acquisitions.

With experience in federal contracting, agile software development, and co-authoring the TechFAR Handbook, Mostowski breaks down how to structure acquisitions for speed, how to bypass outdated procurement models, and how agencies can legally take more risks without breaking the rules.

🔹 Key Topics Covered:

• Why most federal contracting officers misunderstand the FAR
• How to structure acquisitions to move fast without breaking compliance
• The myth of rigid competition rules—and how to work around them
• Why downselects are the key to reducing vendor burden & evaluation time
• How Other Transaction Authority (OTA) is changing government procurement
• What commercial firms need to know before working with federal buyers

🕒 Key Highlights & Timestamps:
[00:03] - Introduction: Why procurement is the biggest barrier to innovation
[01:50] - The FAR isn’t a rulebook—it’s a roadmap
[03:43] - How Jonathan Mostowski helped write the TechFAR Handbook
[05:31] - The power of performance-based service acquisitions
[07:42] - Common mistakes in FAR interpretations & how to fix them
[09:49] - How to legally structure agile contracts for software development
[12:45] - What contracting officers should really focus on
[14:26] - Using downselects to reduce vendor burden & streamline acquisitions
[16:55] - What Other Transaction Authority (OTA) allows you to do differently
[19:12] - Myths about vendor communication & why agencies should talk more
[22:38] - Final thoughts: Government can move faster—if we let it

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Jonathan Mostowski (00:03):

So we're going to talk about innovations from the FAR and some other areas where you can be creative. But before I get into what I believe is in there, I guess I want to ask you all what do you wish was there? What authority or ability do you wish the regs gave you that you can't do or have had contracting officers tell you you can't do or what's in there that shouldn't be in there? Anything that holds you up that you're like, that shouldn't be a rule in the back. Yeah, throw the hold at 2,700 plus pages. Just throw the whole thing away maybe. Hopefully what you're going to learn today is while that might be the right answer, we're going to get away with not throwing it away and still get stuff done. But yeah, that's an idea and we'll talk about that a little bit when we get to the OTA section. Okay, well we're going to go ahead and jump in.

(00:58):

So how did I get into this space? Well, I was overseeing all the application service contracts at NGA. So all the software development at the same time, Letitia Long came in and declared we'd be a scaled Agile framework agency, which nobody really knew what that meant, but they were certain you couldn't do it under the FAR since I owned all those contracts, it was my job to figure out how to do that. And through a lot of learning and experimentation, I developed some models that are pretty common now for buying agile development services and that resulted in OFPP reaching out and asked me to co-author what became the TechFAR Handbook, which was OMB's first publication on how to do this stuff within the constraints of the federal acquisition regulations. And that was in 2014. So we know it can be done, right? There's no question to that.

(01:50):

And the way I kind of pieced together the solutions there was before I went into the software development division to lead that, I was leading the infrastructure division. So I was leading all the infrastructure service contracts and at that point we were using something that sounds pretty familiar. We were using O & M support help desk systems, so capacity management, ticket prioritization, single empowered person to determine who and what does what. So we were already kind of using this model and as I was learning what Agile was, I was like, Hey, this sounds a lot like what we're doing over there. At the same time, I was going through my master's program and I wrote my thesis on performance-based service acquisitions, which is FAR 37.6. That's how much of a nerd I am. And as I was learning what Agile was, I was like, wait a minute, this sounds a lot like performance-based acquisitions.

(02:50):

That's where we get our statements of objectives, that's where we get our quality assurance surveillance point. That's where we get the delivery of a service to create a product, buying a service to deliver a product. Bryon mentioned this the other day. What we are actually contracting for is the repeatable process for the delivery of functional product or code or what have you. So all these pieces were kind of out there and they're still out there. And when I was sort of forced to come up with a solution, I just kind of pulled these things together. So what I hope to do over the next 21 minutes here is give you kind of a crash course in how you can do it. And when you unlock the power of the 2,700 pages, you start to realize that it's not a rule book, it's a roadmap. It's the instructions, albeit maybe like radio instructions from the nineties.

(03:43):

It's the instructions on how to do this stuff. It's all right there. And once you do that, you can harness agile adaptation, you can create contracts that are flexible and ultimately lead procurements to the future. So we're going to get started in the beginning. So I don't know who here has had the pleasure of reading the far. If you've actually read it, you're crazy. You're not supposed to read it. You're supposed to flip through sections. Each part of the FARis for specific activities. So generally you don't need another part of the FARunless you're doing that, except they all relate to each other. So most people don't even open chapter one of the Federal Acquisition Regulations. And I'm here to tell you that's the most important part. So I've coached wrestling for the past 10 years. I've done martial arts and taught martial arts for the last three decades and I coach companies and government organizations and the core principle that I tell everyone in any of those environments is start with the fundamentals. I don't care what fancy move you can do or what creative idea you have, if you don't have a mastery of the fundamentals, when you inevitably misstep or inevitably fail, it's the fundamentals that will pull you through and the FARis constructed in exactly that way. So while we are going to talk about other sections of the far, I'm going to spend probably an unnecessary amount of time on FARpart one because I want you to actually see that everything you need to do for agile software development is discussed in FARpart one.

(05:31):

So we'll just start off with some easy ones right here, FAR1.102(c). The acquisition team consists of all participants and the contractors who provide the products and services. Collaboration is key. They're part of the team. The one badge idea, 1. 102(d), the role of each member of the acquisition team is to exercise personal initiative, sound business judgment. If a specific strategy is in the best interest of the government and is not addressed by the far, it is a permissible exercise of authority. That is a lot of words to say what? That's right. If it doesn't say you can't do it, you can do it now if only it was so easy. It's not just the FAR, we have our policies, we have case law, we have all sorts of stuff, and you can see i.dot dotted there and left that out. For the purpose of brevity on the slide, you do have to do your homework.

(06:29):

And this sort of ties to my principles of innovation to begin with, which are you have to believe something can or should be done differently. Have a deep understanding of the rules, regulations and policies and case law that govern the thing you want to change and take responsible risks. And today what we're talking about is that second one we're getting an understanding of how do the rules enable us to do these things? But the point is unless something says you can't, you can and they want you to not just you can, they want you to do it. So when someone tells you you can't do something politely ask them to show you where it says that I want to learn, I want to be better. I don't want to make this mistake again. Can you kindly show me where it says I can't do that? I'm going to give you all sorts of tips on how not to make friends in government contracting, but that's what I do. That's what I did and it works. 1.102-1 vision. All participants in the system are responsible for making acquisition decisions that deliver the best value product or service to the customer. The result is a system which works better and costs less. That's what we're doing in Agile. That's why we're adopting agile practices. It should delight the customer and it should cost less if only that was it, right? There's so much more.

(07:55):

The principle customer of the product or service provided by the system are the users. User-centered design in agile contracting was not the first time the government ever heard we were supposed to focus on the users. Go figure. Anyone ever use the Defense Travel System? I think they skipped part one. Although advanced planning is required, each member of the team must be flexible in order to accommodate changing or unforeseen mission needs. Holy crap, we're supposed to make a flexible contract. I thought we were supposed to have an integrated master schedule. I thought we were supposed to request engineering change proposals. I used to do major weapon systems. I had 500 page system requirement documents. There was nothing flexible. Everything that changed the contract and cost more money to the point we screwed up so bad we couldn't stop spending more money because it would look really bad to walk away from those investments. Say again as an example, to achieve efficient operations, the system must shift its focus from risk avoidance to one of risk management.

(09:10):

The third leg of the stool of innovation, responsible risk taking the FAR tells you to take risks. When I first became a contracting officer, you know what I was told? You are personally and professionally liable for everything you do as a contracting officer, you should probably get insurance. I was also told that my job was to prevent fraud, waste and abuse for the first one. I'll say while yes, that's true, you have to be pretty **** negligent for them to come after you personally, professionally. And I will also say even if you're not a contracting officer and you screw up that bad, you're still going to be personally and professionally liable. So to me that's kind of like a non-risk, just don't screw up, you can fail. That's not the same thing. Be ethical. What I believe for the second one is a contracting officer's real job is to be a business advisor.

(10:06):

The contract, I always say we should rename the career field. The contracting part is the boring part. We're not going to attract really good people by telling 'em you get to write contracts all day long. But tell 'em they get to be a business advisor. They get to enable their customer their mission. What did we see the other day? The janitors. What does the janitor do for a living at nasa? They launched rockets. I worked at NGA. We were controlling satellites, we were fighting the war on terror, which by the way, gwot also proves how flexible the FARcan be when we want it to be. But responsible risk management, you can do things, you can bend the policies, you can push the organizations if you understand what the rules are.

(10:49):

I love this one. The executive branch will accept and manage the risk associated with empowering local procurement officers to take independent action based on their professional judgment. Is that what happens? How many times your contracting officers say, I can't do it, I'm not allowed. Lawyers won't let me do it. I used to always ask my lawyer when they would tell me no, is it illegal or ill-advised if it's illegal, fine if it's ill-advised that's an opinion and I appreciate it to it. I had a lawyer tell me, if you do this, I will not represent you. And I said, I probably don't want you representing me since you don't think it's a good idea. And two, it's not me you'd be representing, it's the agency because I'm empowered to make this decision and you just told me it's not illegal. I all contractors and prospective contractors shall be treated fairly impartially but need not be treated the same.

(11:47):

Holy crap, we've been doing it wrong this whole time. You can't talk to this vendor. It's not fair. You can't have that conversation. It's not fair, not true. You absolutely can. The only part of the FAR that actually restricts communications with vendors is in FAR 15. And don't get me started, I don't have enough time. But it's only when one phase of the acquisition, the other parts of the FARdon't talk about it. So unless you structure your acquisition and all the other parts I'm going to talk about to look like FAR 15, you're not accountable to FAR 15 rules. They only apply to FAR 15. And I'm sure you all are aware that's contract by negotiation. We all call it FAR 15, right? It's actually called contract by negotiation. You're not allowed to negotiate in that part of the FAR by the way, you can have discussions and communications but not negotiations. I love it. Okay, the government will use, the government will maximize its use of commercial products and services.

(12:45):

Best intentions, right? I think it's a great idea. I think it's the right idea. We just needed to be better at it. Instead of buying commercial solutions and forking them to look like government, Frankenstein's, Frankenstein's monsters. Actually the government must not hesitate to communicate with commercial sector as early as possible in the acquisition cycle. Don't ever let someone tell you you're not allowed to talk to industry industry. Don't let anyone tell you you're not allowed to talk to the government. It's not true. It's required. You have to do it. The system must be responsive and adaptive to customer needs, concerns and feedback. I think that's the lean feedback loop loop right there in part one of the far, we haven't even gotten to FARpart two guys, this is all right here in the first chapter of the book. Finally, rules, regulations and policies should be promulgated only when their benefits clearly exceed the cost of development, implementation, administration and enforcement in the back of the room. Then what's the other 2,600 pages for?

(13:51):

Because I don't think we nailed that one either. Alright, I'm clearly a dad. I had to get a punt in here. Let's go a little farther. This is going to be rapid fire FAR sections that enable agile software development and innovation. Why far? Part six, that's not exciting far. Part six isn't exciting, it's the least creative way to get to a vendor far. Part six is actually about communication with the vendors. Synopsis, posting, getting responses. There's one part of FAR part six that people actually care about 6.302, which are the exceptions to CKA. So the whole part of six is about not accepting CKA competition and contracting act. And then one little section of it is about how to get around it. And that's the part we're interested in because there's seven exceptions to competition in FARpart 6.302. I'm not going to go through them all, but they're all right there.

(14:51):

The one that we most often see and use is only one responsible source. A couple others are urgent and compelling. National security. I mean what do we do that isn't for our 8.4 federal supply schedules? You're going to start to see a theme. I'm going to talk about how we structure our acquisitions to not look like what we think of when we say FAR15 far. 8.4 gives you the flexibility to be creative in the structuring of your acquisitions. Federal supply schedules. GSA, that's mostly what we're talking about. There's others, but just for simplicity, think GSA, you also only have to compete to a reasonable level. So sometimes you still want competition but you don't want competition, right? So three vendors generally meets the mark of reasonable, reasonable competition. FARpart 10 market research instructs the government to talk to industry. I feel like maybe I haven't said that enough.

(15:56):

They want to talk to industry FAR part 12. Alright, let's get into some good stuff. Why is FAR part 12 there? Commercial acquisitions. Commercial acquisitions exist because the FARcouncil recognize that FAR15 sucks. It actually doesn't, but the way we use it does. And most of the industry that isn't a traditional vendor either can't or won't choose to participate with the government. So we need a separate set of rules for conducting an acquisition with them and a separate set of rules of what clauses have to be included in that contract. But why do you care? You don't sell a commercial product. Not true. If you sell agile software development services, you sell commercial services. Why do we know that? Because the government didn't invent it. We are buying a repeatable process for the delivery of functional product, not a missile that flies a certain way. That might be the outcome, but that's not what we're buying. We got that from industry. That is a commercial service. And OMB agrees.

(17:05):

So commercial acquisitions are so great, why do we need anything else? Well if just one chapter ahead of it or after it I guess is 13. 13 is your simplified acquisition procedures. It's kind of boring because most of it only applies to a very small purchase. But 13.5 applies to commercial items under the simplified acquisition procedures. Alright? $7 million and you can pretty much do what you want. It's very flexible. Now you can structure that contract with those down selections and talking to vendors and being creative on data rights. There's a lot you can do under that. And they want you to, by the way, I can't stress this enough. Congress wants you to, the FAR council wants you to. The GAO wants you to, they write about it every year. They want us to be more creative. They want us to use the things that are there.

(17:55):

That's why I asked the question. I mean nobody really bid on it, but everybody's always thinking, what can we do differently? And to the frustration of the people who provide this because they're like, we've given you the tools, you're not using those. How many times has language got put in the NDA and people don't take advantage of it? And then they go back to the hill and they complain, give us more freedoms, give us more flexibility. Use the ones that's there. We already did it. FAR 16 is just your contract types. That's a whole nother conversation. But we'll talk about 16.5, which is IDIQs indefinite delivery. Indefinite quantity multiple award. I dqs are the flavor of the day for how we do agile contracts. Why is that? Because again, it's not that we don't want competition, we just want to compete amongst the vendors that can actually do the work and not just write papers that say they can do the work. FAR16 five also requires the contracting officer to develop a simplified efficient process for awarding task orders. They're required to by statute to be creative and come up with a simplified efficient way to issue task orders set asides.

(19:12):

Obviously we could take advantage of those for direct awards. Again, for limiting competition, we'll see what happens. But right now that's what it looks like. Let's what we move on. FAR35 research and development. So I put this here because broad agency announcements fall in there, BAAs. BAAs have been a tool, well the FAR came out in 1984, which means it's not that old. And I say that because I'm older than the far, so we've been using broad agency announcements for decades. Broad agency announcements look a lot like commercial solution openings. That creative thing that Congress helped us come up with because when they expanded OT authority, they recognize that all the contract types were in the far. So if you're not using the far, what processes and methods should you adopt? I mean Bess is in the room. She can wave me off of.

(20:05):

I'm totally wrong, but I think that's right. So broad agency announcements is a way in which you can use CSOs under traditional FAR contracting. So is all these other ones by the way. But this one is explicitly a way you can use it. And why do I care? CSOs a rose of any other name still arose. It's because down selects are the right thing to do. And the reason I think they're the right thing to do is that the amount of effort from industry and evaluators should be commensurate with each offer is likelihood of success. And at the start of an acquisition, you have one in end chances of being accepted. So why should you have to write hundreds of pages and cost volumes and cost narratives when you might suck? And downselect give the government the ability to tell you that under FAR contracting they give you advice.

(20:54):

It's called an advisory downselect because thanks to GAO you must fully evaluate and that is defined as including cost. And if you're going to evaluate cost, you might as well evaluate the whole thing under non FAR-based contracting you can just be like hit the road. But it's a kindness to both. As a contractor, I would like to know if I'm not going to win before I go have my team burn through my b and p dollars and hours and hours they could be doing something else. Alright, FAR 37.6. I already touched on this. Performance-based acquisitions, the instructions on how to do this stuff is right there in FAR 37.6. FAR 39, in the FAR before anyone talked about Agile was acquisition of information technology and what it basically says, technology changes too fast to follow our traditional procurement processes. You should not buy 10 year delivery activities. You have to adopt new practices that are more efficient, more specifically, 39.103 talks about modular contracting. The FAR tells us to stop doing 10 year long omnibus contracts that try to solve every technical issue for the agency.

(22:08):

It's iterative contracting, it's specialized non-traditional vendors. It's all there. Okay? We can't talk innovation and contracting without talking ot, right? Established in 1958 for the purposes of NASA and then DARPA for basic advanced and applied research. Nobody cared. Nobody was like, I want that too. No, it wasn't even a conversation. But then in 2016, primarily for the purposes of DIUX, they expanded 2371, which then became A to 2371 B and added end prototypes and production follow-ons too, right? Holy ****, things just got exciting. Now we can operate outside the FAR and we can do prototyping. Well wait, what's prototyping? Well, fortunately the Department of Defense didn't know the answer either. And so different parts of the Department of Defense took stabs at it. And the Navy, I think is the first one that came out and said iterative software development is prototyping. And from there everyone just kind of fell in line and said, I agree too.

(23:19):

Separate conversation. I actually think there should be a new authority that is specifically around IT modernization, but conversation for another day. But why is OT so great? I just told you, you can do everything in the far, so why do you need ot? You need ot because it is very, very difficult for the human brain to look at an existing process and say, how would I do this differently? But you burn it down like we heard at the start of the conversation, you're blue sky, you're greenfield, you've got a blank sheet of paper. How would you empowered contracting officer? Well weren't agreements officer in this case. How would you do this if there wasn't a set of rules telling you how to do it? And that's where we got creative.

(24:08):

Then as the immunity builds up, there's processes built around, there's policies written and alas, once again, OT will continue to get nerfed so to speak, until we need something else. But in the meantime, it's there. It's useful, it's great and it's easy. Yet people are more likely to be a warranted contracting officer than a warranted agreements officer. And of all the agencies in the federal government, only 10 have OT authority. 19 if you count subagencies, that's crazy. Everybody says it's worked. Congress has told us every year since 2016, use it more. Here's more language to make it easier, please use it. GAO has written the state of it and the use of OT every year in their annual reports we're being told to use it. It's there. Expand it. Alright, we're I'm just about out of time here, so I'm going to go through rapid fire here and then we're done.

(25:02):

So what else is out there? We have srs. I don't think anyone in here needs to hear more about SBIRs. If we do get me on the one of one, CRADA's are cooperative research and development agreements. Sometimes you can't get money from a customer, but you can get data. If you're training algorithms, that's pretty **** useful. You also get access to customers joint ventures. Bringing traditional non-traditional vendors together, bringing small and larges together, gratuitous service agreements. If the government ever tells you they can't accept something for free, they are lying. They are allowed to accept something for free. What they're not allowed to do is violate the Anti-deficiency Act. And the way they would do that in accepting something free is they accept it. And then you come back and you say, and by the way, that's a million billion dollars too. So a gratuitous service agreement contractually captures that.

(25:52):

The contractor can never come back and say the government owes them money, in which case the government can accept free products and services. Every agency in the federal government has challenges challenge.gov. So next time you're contracting officer or someone else says you can't do a bake off, not true. You can do a challenge, you can put a prize against it. And then after you complete your challenge, you can write an only one responsible source because you just conducted a hell of a lot of research to find the best solution or at least a brand name, only free trials. Again, you are allowed to give free stuff or take free stuff in industry so long as the company commercially makes free trials available. But you can say, well I don't want to make free trials available commercially. You don't have to just put on your website that it says contact for a free trial to discuss a free trial.

(26:40):

And then in discussions you might figure out that's not a good candidate for a free trial, but you're allowed to do it. The government is allowed to use it so long as it is publicly available. Finally, cooperative agreements similar to creatives but not the same. The government does fund cooperative agreements, but generally speaking, you're not allowed to accept profit or fee on top of it. So it's primarily for non-profit companies and academia, but a contracting officer can waive that or exempt the nonprofit and offer it. Alright, there you go. This is me. I will be upstairs signing books and answering one-on-one questions. I hope you walk away from this going, holy ****, that FAR is awesome. I'm going to pick me up one and I'm going to tell everybody what's for. If not, I just hope you had fun. Thank you all so much.

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