Government Acquisition Personnel Can Chat with Contractor Personnel

The FAR (Federal Acquisition Regulations) Councils have proposed an amendment to "clarify" that Government agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms. That's well and good but your average acquisition person is not going to know what the existing laws and regulations are, much less permit, and they're too busy anyway to stop and try to figure it out. In addition, they're also too busy to take the time to have meaningful discussions with contractors or wannabe contractors. This regulation, if adopted, will become a field day for bid protests - one little slip-up and you've got a bid protest to deal with.

The proposed rule will amend FAR 1.102-2(a)(4) to specifically state that Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing laws and regulations, and promote a fair competitive environment. This revision, according to the FAR Councils, will better equip Federal acquisition officials with the information needed to issue high-quality solicitations.

In fairness to the FAR Councils, this change is required by the 2016 NDAA (National Defense Authorization Act). How it made its way into the NDAA is a matter for someone else to research but the idea has been discussed for several years.

In 2011, the OFPP (Office of Federal Procurement Policy) launched a campaign to address misconceptions commonly held by industry and Government regarding the role of communication during the acquisition process in order to encourage early, frequent, and constructive engagement with industry to achieve better acquisition outcomes. There were two memoranda were issued, one in February 2011 focusing on misconceptions on the part of Federal agencies and the other in May 2012 addressing misconceptions held by industry.

The FAR Councils are seeking input into the proposed regulations. Specifically, they are requesting information regarding the following:

• Which phase(s) of the Federal acquisition process - i.e., acquisition planning/market research; solicitation/award; post award - would benefit from more exchanges with industry and what specific policies or procedures would enhance communication during these phases?
• Is there a current FAR policy that may inhibit communication? If so, what is the policy, and how could this policy be revised to remove barriers to effective communication?
• Might it be beneficial to encourage, or require, contracting officers to conduct discussions with offerors after establishing the competitive range for contracts of a high dollar threshold? If so, what would be the appropriate dollar threshold?

Read more about the proposed regulation and instructions for providing feedback here.