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Guest Vern Edwards

FAR Case 2016-005

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Guest Vern Edwards

See the Wifcon home page under Rules & Tools. The FAR councils have just extended the comment period for the proposed rule based on FAR Case 2016-005, "Effective Communication between Government and Industry." Please read the proposed rule and consider submitting a comment.

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I just read a C&M email that said the new administration was putting a hold on all in-process regulatory changes, pending review. (This is, I'm told, a "normal" thing.)

Connection or coincidence?

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Crowell & Moring, a law firm noted for its government contracting expertise

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Oh boy... a rule to say it's ok to engage with industry... it's stuff like this that makes me wonder what really goes on in those sessions and who thinks we need a rule for everything or what agency said it wasn't ok to contact industry. I thought the OFPP myth buster memos settled that years ago.

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Vern,

No. I tried to look in regulations.gov at any comments that have been posted but all I can see is that it looks like one comment was received and I've not been able to figure out how to view it. Admittedly it could be operator error that is preventing me from reviewing the comment. 

In the past the only way I've been able to figure out how to read comments associated with a rule is to wait until the final rule has been published to review any comments received. 

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UVA (and others),

Go to regulations.gov and in the search bar type in the appropriate FAR Case (in this case you would type "FAR Case 2016-005") and the first hit should be the right one.

Click on it - at the top of the page you'll see a link that says "Open Docket Folder" - click that.

On the next page you should be able to see a number of sections titled "Primary Documents," "Supporting Documents," and (the one you're looking for) "Comments."  Next to the comments header is a link that says "View All" - click that and you should get what you're looking for.

Happy researching!

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Matthew,

Thank you for providing that information.

Vern,

I have reviewed all 8 comments currently present. I completely agree with the issue that this FAR rule attempts to address, KOs are risk adverse and do not communicate with Industry in an effective manner, nor do they know the rules when engaging with Industry prior to the issuance of an RFP. That being said, I completely disagree that we need an amendment to the FAR to address this issue, as Mr. Nash and you point out, many of my fellow KOs and Contract Specialists are unaware of the guidance that has already been put out which addresses and resolves many of the things that Industry states we already should be doing. Additionally, these same folks are unaware of the guidance already contained in FAR Parts 1, 10 and 15 regarding this subject and I don't see where clarifying information needs to be provided because it doesn't solve the underlying problem. 

This discussion reminds me of a situation I once experienced where my CCO wanted me to have one of our attorneys present in the room when I was conducting 1v1 market research sessions with potential 8a vendors for in depth discussions regarding  Capability Statements received in response to an RFI I released in FBO to ensure that the same questions were asked to each potential vendor in case an angry vendor decided to protest should they should have selected and allege favoritism. I provided copies of the OPFF Mythbusters memo, and tried to explain to my Chief that I did not need to ask the same questions, and that asking the same list of questions to each vendor was of no help, as we already did that as part of the RFI. Now the Program Office wanted to discuss specifics contained within the Capability Statements and that asking the same set of questions to each vendor may in fact lead to the very protest that the Chief was afraid of as it could result in one vendor's trade secrets being disclosed to a competitor. I do not see where the proposed amendment would address or solve the problem in this situation, which is the lack of understanding and fear surrounding market research and engaging with Industry as it seems that most KOs are so afraid of a potential protest that we do the minimum amount necessary to check a box, and move onto the next step.

IMO the best solution to the problem is to state what types "exchanges of information" should not occur, or better define what the line is when these "exchanges of information" between Gov't and Industry begin to give one member of Industry a competitive advantage as this appears to be the underlying fear that keeps KOs and Specialists from engaging with Industry and its the lack of understanding when the conversation shifts from one of "market research" to where a potential vendor is now specifically guiding the development of the requirement in a manner that gives them a potential competitive advantage and when the FAR states that the information needs to be shared with all potential vendors. I do not believe that this needs to be a rule, but rather a policy memo that is published by OFPP and then passed along through by each Agency. 

I also believe that KOs should be reminded that the FAR specifically states at 1.102-2(c)(3) that all contractors and prospective contracts need to be treated fairly, but not equally. All too often I hear you have to treat everyone equally, to which I constantly remind folks, the FAR does not say that, it says fair, but fair is not equal. 

 

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17 hours ago, uva383 said:

Oh boy... a rule to say it's ok to engage with industry... it's stuff like this that makes me wonder what really goes on in those sessions and who thinks we need a rule for everything or what agency said it wasn't ok to contact industry. I thought the OFPP myth buster memos settled that years ago.

It's not OFPP or the FAR Councils that required this proposed rule it was Congress.  Specifically, Section 887 of the National Defense Authorization Act for Fiscal Year 2016 told the FAR Councils to issue a rule.  I believe if the FAR Councils were able they would not have put this rule out but since it's a statute I don't think they had a choice of saying to Congress thanks but we don't think this is necessary.  Since this rule is implementing a statute I don't believe it will be subject to the recent memo of putting new regulations on hold.   More to follow.  It will be interesting to see what happens based on the public comments received by the FAR Councils.

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I am caught between “old school” and the new world.  Adding clarity to the FAR makes sense.   Yep there will be some that do not or will not want to read its clarity as it seems that happens every day by what is posted in WIFCON every day.  

Over simplification probably but all the same maybe the wording ought to be simply “If you can find a pending procurement on the internet (and I am not talking FBO posts) you can discuss it to the length of the details found on the internet”.   After all Google sure the heck knows what I am thinking about buying.

A little more ammo to enlighten the acquisition workforce makes sense to me!

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Guest Vern Edwards
1 hour ago, policyguy said:

Specifically, Section 887 of the National Defense Authorization Act for Fiscal Year 2016 told the FAR Councils to issue a rule... It will be interesting to see what happens based on the public comments received by the FAR Councils.

Here is what the statute says:

Quote

Not later than 180 days after the date of the enactment of this Act, the Federal Acquisition Regulatory Council shall prescribe a regulation making clear 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 FAR councils are going to put words to that effect into the FAR, and that is all that they are going to do.

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