On December 1, 2022, the FAR Council issued a final rule, Effective Communication between Government and Industry, 87 FR 73902, effective December 30, 2022, that confirms that “Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry” during the pre-solicitation phase to “help the Government determine the capabilities available in the marketplace.” While this revision to FAR 1.102-2(a) merely “encourages,” and does not “require,” government communications with contractors – communications typically during the pre-solicitation process – the Government commentary accompanying the final rule provides a range of FAR-based rationales that contractors can use to encourage government-contractor communications.
These rationales can be found to some extent in the text of the new clause; however, the best use of the final rule may not be in the text but in the Government commentary that highlights the context of the new clause: the rarely read FAR subpart 1.1.
FAR 1.102-2(a)(4).
The new language of FAR 1.102-2(a)(4) encourages the government to “not hesitate” to communicate with industry. It adds that government procurement personnel are “permitted and encouraged” to consult with industry. Two limitations on these communications are that they must comply with procurement rules, and that they cannot promote an unfair competitive advantage to a vendor. But, as mentioned above, communication with industry is not mandated or required.
Significantly, FAR 1.102-2(a)(4) gives two specific examples of allowable communications already in FAR: FAR 10.002 dealing with market surveys and FAR 15.201 dealing with preparing solicitations.
Because FAR 1.102-2(a)(4) repeats the existing FAR guidance that the Government “must not hesitate” to communicate with the contractor in the pre-solicitation stage, it is easy to dismiss the new clause as irrelevant. But that conclusion misses the importance of the FAR Council’s commentary stressing how the new clause should be read in the context of FAR subpart 1.1 which provides additional rationales for increased government-contractor communications.
FAR subpart 1.1.
FAR subpart 1.1 is perhaps one of the best-kept secrets in FAR.
First, FAR subpart 1.1 makes contractors part of the Acquisition Team that is responsible for the Government getting “the best value product or service to meet the customer’s needs.” FAR 1.102(c). The same FAR provision includes on the Acquisition Team the government’s technical, supply, and procurement communities and the customers they serve.” Thus, FAR allows contractors to communicate with Contracting Officer Representatives (CORs), as well as the customer.
Second, significantly, two provisions in FAR subpart 1.1 describe the “bias” in favor of innovative strategies: the government members of the acquisition team may assume “if a specific strategy is in the best interest of the government and is not addressed in FAR nor prohibited by law, that strategy is permissible.” FAR 1.102(d). This innovative focus is repeated in FAR 1.102-4(e). The FAR Council’s commentary on FAR 1.102-2(a)(4) ties this added language to the FAR’s existing “innovative” context, noting that “Contracting officers already have the authority to be innovative in their communication with industry (see FAR 1.102-4).”
Finally, the commentary made several references to the “Myth-Busting #4 Memorandum, “Strengthening Engagement with Industry Partners Through Innovative Business Practices,” issued on April 30, 2019, by the Office of Federal Procurement Policy. By doing so, the commentary reminded contractors and government personnel that OFPP had addressed ways that government can and should actively engage with industry in the pre-solicitation process.
Takeaway.
While it is true that the new FAR clause does not break new ground, the FAR Council’s commentary on the clause is trying to open the door to more government-contractor communication.
For example, several public comments address the fact that the acquisition workforce was constrained by rules and regulations and that some contracting officers may be risk-averse to increasing communications with contractors. In its commentary, the FAR Council said it believed that the new clause “coupled with the existing guidance in FAR subpart 1.1 will better equip federal acquisition officials to actively engage with industry and overcome the concerns and constraints” cited in the public comments. Thus, the numerous references to FAR subpart 1.1 provide rationales and arguments for contractors trying to get greater government-contractor communications by making (subtle) attempts to educate government procurement personnel.
But the other half of the communication process, the contractors, also need to be educated. One of the Public Comments noted that contractors did not know the rules and so they should also be educated to understand them.
Berenzweig Leonard can provide valuable and cost-effective guidance on the FAR communication rules and how best to use them to successfully increase government-contractor communications.
Terrence O’Connor is a Partner and the Director of Government Contracts at Berenzweig Leonard, LLP.