CAN WE TALK? NEW RULE PROMOTES INDUSTRY-GOVERNMENT ENGAGEMENT
It is undeniable that better acquisitions take place when industry and government have an opportunity to discuss key issues in advance of a formal solicitation document. Industry can educate government officials on the latest developments in market technology, while government people bring their important perspective for assuring integrity and meeting the special needs of the public sector that industry may not always see in its markets. Improving communications is the thrust behind a new FAR rule (https://www.govinfo.gov/content/pkg/FR-2022-12-01/pdf/2022-25959.pdf) issued December 1st. According to the Federal Register notice, “This rule clarifies that 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.” The final rule specifically goes beyond the ability to speak with industry for market research purposes. The FAR Council makes its clear in the Federal Register notice that market research is just one legitimate reason why government officials can speak with industry. The intent is to, “assuage the concerns of risk averse contracting officers” who are sometimes reluctant to speak with industry even when there is no active acquisition out for bid. In addition to the new rule, the Office of Federal Procurement Policy (OFPP) has called for vendor communication plans from federal agencies. They oversee the implementation of such plans governmentwide. Participation in the “vendor engagement collaboration community of practice” is encouraged, but not required, by OFPP. Contractors should absolutely be aware of this rule and be prepared to appropriately use it when speaking with acquisition offices that may otherwise be hesitant to talk. While no policy can require acquisition officials to communicate, the policy guidance is clear that appropriate communications lead to better acquisition outcomes.