DoD, GSA, and NASA are issuing a final rule that amends the Federal Acquisition Regulations (FAR), effectively implementing a provision of the 2016 National Defense Authorization Act. The rule permits and encourages agency acquisition personnel to engage in responsible and constructive exchanges with the industry, provided that such exchanges remain consistent with the applicable law and refrain from promoting any unfair competitive advantages.

The final rule amends FAR 1.102 by revising section (a)(4) and adding section (a)(5). It will read as follows:

1.102-2 Performance standards.

(a) * * *

(4) The Government must not hesitate to communicate with industry as early as possible in the acquisition cycle to help the Government determine the capabilities available in the marketplace. Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry (e.g.,see 10.002 and 15.201), so long as those exchanges are consistent with existing laws and regulations, and do not promote an unfair competitive advantage to particular firms.

(5) The Government will maximize its use of commercial products and commercial services in meeting Government requirements.

By way of background, DoD, GSA, and NASA published the proposed rule at 81 FR 85914 on November 29, 2016, in order “to revise the FAR to implement section 887 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92).”

The provision requires the FAR Council to

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.

There were nineteen respondents which submitted comments to the proposed rule. And the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed those public comments to assist in the development of the final rule.

In summary, minor changes were made to the proposed as a result of public comments. At section (a)(4), the words “the commercial sector” were deleted and replaced with “industry”, and the words “as part of market research (see 10.002)” were replaced with “(e.g., see 10.002 and 15.201)”. According to the Councils, such changes were made to “clarify that FAR 1.102-2(a)(4) applies to communication with all of industry.”

As for the second sentence of section (a)(4), the Councils abbreviated the text that describes examples of exchanges with industry “to provide citations to those descriptions in their respective parts of the FAR[.]” The text was changed from “so long as those exchanges . . . promote a fair competitive environment,” to “so long as those exchanges . . . do not promote an unfair competitive advantage to particular firms[.]” And according to the Councils, this change was made “in order to clarify the purpose of the sentence and better align with the statute.”

The Council stated that “[t]he rule is expected to benefit both the Government and industry by encouraging more constructive communication during the Government’s market research efforts.” And if you follow our blog, you probably know that we strongly encourage such communications as well. In fact, you can actually read a three part series on the subject for more ways to facilitate such contractor-contracting officer communications (found here: Part 1, Part 2, and Part 3).

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