Rule2022-25959
Federal Acquisition Regulation: Effective Communication between Government and Industry
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
December 1, 2022
Effective
December 30, 2022
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2016. 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.
Full Text
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[Federal Register Volume 87, Number 230 (Thursday, December 1, 2022)]
[Rules and Regulations]
[Pages 73902-73909]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-25959]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1
[FAC 2023-01; FAR Case 2016-005; Item II; Docket No. FAR-2016-0005,
Sequence 1]
RIN 9000-AN29
Federal Acquisition Regulation: Effective Communication between
Government and Industry
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to implement a section of the
National Defense Authorization Act for Fiscal Year 2016. 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.
DATES: Effective: December 30, 2022.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949 or by email at <a href="/cdn-cgi/l/email-protection#264b4f454e47434a49084c47454d5549486641554708414950"><span class="__cf_email__" data-cfemail="5e33373d363f3b323170343f3d352d31301e392d3f70393128">[email protected]</span></a> for
clarification of content. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#50170311023537033533103723317e373f26"><span class="__cf_email__" data-cfemail="a2e5f1e3f0c7c5f1c7c1e2c5d1c38cc5cdd4">[email protected]</span></a>. Please cite FAC 2023-01, FAR Case
2016-005.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule at 81 FR 85914 on
November 29, 2016, to revise the FAR to implement section 887 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016
(Pub. L. 114-92). This provision provides that 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. Nineteen
respondents submitted comments on the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule.
A discussion of the comments and the changes made to the final rule
as a result of comments received are provided as follows:
A. Summary of Significant Changes From the Proposed Rule
Minor changes to the proposed rule are made as a result of public
comments. At FAR 1.102-2(a)(4), first sentence, the words ``the
commercial sector'' are deleted and replaced with the word
``industry'', the word ``commercial'' is deleted, and FAR 1.102-
2(a)(4), second sentence, the words ``as part of market research (see
10.002)'' are replaced with ``(e.g., see 10.002 and 15.201)''. These
changes are made to clarify that FAR 1.102-2(a)(4) applies to
communication with all of industry.
At FAR 1.102-2(a)(4), second sentence, the text that describes
examples of exchanges with industry has been abbreviated to provide
citations to those descriptions in their respective parts of the FAR;
and the text has been 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,'' in order to clarify the purpose of the sentence and
better align with the statute.
B. Analysis of Public Comment
1. General Support for the Rule
Comment: A number of respondents that provided comments stated
their support of the proposed rule change.
Response: The Councils acknowledge the support of the respondents.
2. Expansion of the Rule Beyond FAR Part 1
Comment: A number of respondents indicated that this rule should
expand beyond FAR part 1.
Response: This FAR case implements the requirement of section 887
in part 1; the Councils will carefully consider whether another FAR
case would be beneficial to furthering the goal of effective
communication. Regulatory coverage is just one of a number of ways in
which meaningful dialogue is facilitated between the Government and
contractors. For example, the Office of
[[Page 73903]]
Federal Procurement Policy (OFPP) has issued ``myth-busting'' memoranda
to dispel workforce misunderstandings about what communications are
allowed. The Chief Acquisition Officers Council sponsors a
Governmentwide knowledge management portal, known as the Periodic Table
of Acquisition Innovations, which includes tested artifacts provided by
agency acquisition innovation advocates to improve communication with
prospective and actual offerors. Agency industry liaisons and small
business specialists assist program and acquisition personnel in
developing strategies for engaging potential vendors to build and
maintain the diversity and resilience of the agency's supplier base,
with small business specialists focused, in particular, on
communications that can help bring socioeconomic and other small
businesses to the base. OFPP has agreed to confer with agency
acquisition innovation advocates, agency industry liaisons, and small
business specialists, as well as program and project personnel whose
programs are supported by contractors, review ideas on effective
communication provided in response to crowdsourcing campaigns, and
discuss feedback with the Councils.
3. Rule Should Do More To Make an Impact on Communication
a. Establish Agency Official Responsibilities
Comment: A respondent stated that the rule should incentivize
officials to enhance levels of communication without fear of reprimand.
Response: The Councils believe the rule builds on existing guidance
in FAR subpart 1.1 and FAR part 10, as well as the ongoing efforts by
industry and Government to promote greater Government-vendor
communications. Acquisition innovation advocates, industry liaisons,
and OFPP's continued efforts are expected to help encourage Government
acquisition personnel to engage with industry in accordance with
existing law and regulation.
b. Develop Government Communication Rules
Comment: A respondent requests that this rule should expand FAR
part 10 to include rules on allowable communications.
Response: FAR 10.002(b)(2) covers market research techniques and
the Councils believe that additional changes are not necessary at this
time.
Comment: A respondent requests that the rule should create safe
havens from bid protest for contracting officers that communicate with
industry.
Response: The rule encourages communication between Government
acquisition personnel and industry as long as the exchanges do not
promote an unfair competitive advantage to particular firms, and are
consistent with existing laws and regulations.
Comment: A respondent commented that the rule be expanded to
include key stakeholders in the communications such as technical
personnel.
Response: The Government acquisition personnel referenced in the
rule includes key technical personnel. FAR 1.102(c) describes the
acquisition team as including the technical, supply, and procurement
communities and the customers they serve.
Comment: A respondent commented that before implementing this rule,
the Councils should look at Community of Practice and agency
communication plans, gather ideas, supplement the rule with non-
exclusive list of ideas and crosswalk them to FAR parts 3, 13, 14, and
15.
Response: The Councils reviewed several parts of the FAR that
provide policy on exchanges between Government and industry. The
Councils determined that amending FAR part 1 was the appropriate place
in the FAR for this rule. FAR part 1 sets forth basic policies and
general information about the Federal Acquisition Regulations System
including FAR parts 3, 13, 14, and 15.
Comment: A respondent stated that the rule should require OFPP to
create a FAR-based series of practice, training, or engagement aids to
assist in the communication process.
Response: The FAR provides guidance and direction to the
contracting workforce and industry. While the FAR sometimes implements
guidance published by OFPP, the FAR does not provide direction to OFPP.
c. Require Communication Between Government and Industry
Comment: A respondent stated that the rule should force industry
and Government communication.
Response: This change to the FAR encourages effective communication
between Government and industry where appropriate. The rule is not a
mandate, allowing contracting officers the discretion to use business
judgment and best practices.
Comment: Several respondents commented that the rule is not likely
to have an impact on the Federal acquisition process as there are no
required actions.
Response: The rule amends the FAR to implement section 887 of the
NDAA for FY 2016. The 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. Section 887 did not require
communication actions, but clarified that they be permitted and
encouraged.
4. Alternative to the Rule
Comment: A respondent noted that revising FAR 1.102 would not
enhance communication between Government and industry because very few
contracting officers read this part of the FAR or even know that it
exists.
Response: The revision in FAR 1.102 is meant to enhance
communication between Government and industry when coupled with the
existing guidance in FAR subpart 1.1 and the market research strategies
set forth in FAR part 10. The rule will be disseminated in accordance
with agency procedures to ensure that Government acquisition personnel
are aware of the changes to FAR 1.102.
Comment: A respondent stated that FAR part 10 should be amended to
change the title and add a new subpart containing policy about
communications with industry.
Response: The rules and guidance pertaining to Government exchanges
with industry already exist in the FAR, for example FAR 1.102, FAR part
10 and FAR 15.201. The Councils do not believe the requested changes to
FAR part 10 are necessary.
5. Recommended Changes to the Proposed Text
Comment: Some respondents stated that the text could be viewed as
limiting communication to market research and recommended that the text
be more inclusive by covering all of the acquisition process.
Response: The FAR text has been revised to remove a reference to
market research and instead provide citations to sections of the FAR
that provide examples of communication policies and procedures located
elsewhere in the FAR.
Comment: A respondent stated that the text is redundant, since FAR
10.002 encourages exchanges with industry.
Response: The rule encourages exchanges between Government and
industry. FAR 10.002 provides market research procedures.
Comment: A respondent suggested the rule be revised to
affirmatively state the benefits of proactive, ongoing communication
with industry.
[[Page 73904]]
Response: There are benefits to proactive, ongoing communication
with industry. However, the Councils do not believe the suggested
changes are necessary to implement section 887 of the NDAA for FY 2016.
Comment: A respondent stated that the text should cover the
preproposal submission industry exchanges described at FAR 15.201.
Response: FAR part 1 sets forth basic policies and general
information about the Federal Acquisition Regulations System including
FAR part 15.
Comment: Some respondents suggested rewording ``commercial sector''
unless the rule only applies to commercial items/vendors.
Response: In the first sentence of FAR 1.102-2(a)(4) the term
``commercial sector'' is changed to ``industry''.
Comment: A respondent suggested dropping the word ``commercial''
from ``commercial marketplace.''
Response: In the first sentence of FAR 1.102-2(a)(4), ``commercial
marketplace'' is changed to ``marketplace''.
Comment: A respondent suggested changing the word ``communicate''
to ``exchange information''.
Response: The first sentence of FAR 1.102-2(a)(4) will not be
changed to replace ``communicate'' with ``exchange information''. The
term ``communicate'' is used here in its normal dictionary sense, not
as the technical usage at FAR 15.306. The Councils believe that the
exchange of information is part of communication and that the suggested
change is not needed.
Comment: A respondent suggested adding after ``(see 10.002)'' the
phrase ``under the general guidelines as provided in FAR 15.201 for all
procurements, . . .''.
Response: The FAR text has been revised to remove a reference to
market research and instead reference those sections of the FAR where
corresponding procedures exist. In addition, the Councils reviewed
several parts of the FAR that provide policy on exchanges between
Government and industry. The Councils determined that amending FAR part
1 was the appropriate place in the FAR for this rule. FAR part 1 sets
forth basic policies and general information about the Federal
Acquisition Regulations System including FAR 15.201.
6. OFPP Myth-Busting Memos
Comment: A number of respondents raised concerns with the OFPP's
Myth-Busting memoranda referenced in the Federal Register Notice for
the proposed rule. A respondent stated that the Myth-Busting memoranda
did not reflect a full understanding about why contracting officers are
often hesitant to communicate with industry. In addition, the
respondents were concerned that the memoranda did not go far enough to
change the misperception that communications with industry are not
endorsed by the acquisition community.
Response: The OFPP's Myth-Busting memoranda highlight the
importance of meaningful dialogue between Government and industry.
Within the context of this rulemaking, the reference to the memoranda
in the preamble of the proposed rule served as an invitation for
interested parties to share their assessment of the impediments to
effective communication during the acquisition process. It was the
intent of the Councils to obtain valuable insights from the community
affected most by these challenges so as to develop innovative
approaches for overcoming these obstacles in the future.
7. General Concerns About Communications Between Government and
Industry
a. Rigid Regulatory Structure Inhibits Communication
Comment: Some respondents stated that the acquisition workforce is
constrained by regulations, policies, and procedures that limit
communication and flexibility and are incompatible with modern
workforce culture and technology changes.
Response: The Councils believe the rule 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 by the respondents.
Comment: Some respondents noted that rigid regulatory structure can
cause risk averse contracting officers to shun communications with
industry unless it is expressly allowed.
Response: The Councils believe the encouragement provided in the
rule will assuage the concerns of risk averse contracting officers.
Comment: Several respondents remarked that contracting officers may
be hesitant to engage in communications with industry because they fear
saying something inappropriate or drawing a protest because of their
statements.
Response: The Councils believe the encouragement provided in the
rule will assuage the concerns of fearful contracting officers.
Comment: A respondent emphasized the flexibilities in the FAR.
Response: The Councils acknowledge the input provided.
b. Need for Acquisition Workforce Training
Comment: Several respondents commented that there is a need to
improve and increase the communication training that is available to
the acquisition workforce.
Response: Training for the Federal acquisition workforce is
developed and provided in accordance with agency procedures.
Comment: A respondent suggested including industry speakers at
training events and forums. Another respondent recommended instituting
cross-functional training and an industry exchange program. A
respondent asserted that communication training should be comprehensive
and required for contracting personnel.
Response: Training for the Federal acquisition workforce is
developed and provided in accordance with agency procedures.
c. Lack of Support for Communicating With Industry
Comment: A respondent commented that industry is ignorant of
Government rules and processes surrounding communication.
Response: It is incumbent on industry to ensure their workforces
are educated in the rules and processes involved with communicating
with the Government.
Comment: A respondent commented that some agencies have not
implemented vendor communication plans and are not participating in the
``vendor engagement collaboration community of practice.''
Response: OFPP has called for vendor communication plans and
oversees their implementation Governmentwide. Participation in the
``vendor engagement collaboration community of practice'' is
encouraged, but not required, by OFPP.
Comment: A respondent commented that effective communication must
be ingrained across an organization to achieve any lasting effect.
Response: The Councils agree that wide-spread adoption of effective
communication techniques is warranted and believe the rule will further
that goal.
Comment: A respondent recommended that the Government establish
agency industry liaisons/ombudsmen to facilitate communication.
Response: In its Myth-Busting #4 Memorandum, ``Strengthening
Engagement with Industry Partners Through Innovative Business
Practices'', issued April 30, 2019, OFPP asked each Chief Financial
Officer Act agency to name an industry liaison. Further
[[Page 73905]]
establishment of an agency industry liaison or ombudsman is done in
accordance with each agency's procedures.
Comment: A respondent recommended expanded use of collaboration
tools and technology.
Response: The use of collaboration tools and technology is in
accordance with agency procedures.
Comment: A respondent recommended creation of opportunities to
exchange information not related to specific procurements, such as
reverse industry days and scenario-based role-playing opportunities.
Response: Opportunities to exchange information not related to
specific procurements are in accordance with agency procedures.
Comment: A respondent noted that the Government has improved the
availability of information.
Response: The Councils acknowledge the input provided.
Comment: A respondent commented that communication with industry is
becoming a ``check the box'' exercise.
Response: The Councils do not agree that communication with
industry is a ``check-the-box'' exercise. The rule encourages
Government acquisition personnel to have engagement with industry.
Comment: A respondent commented that Government should increase the
amount of communications with industry and ensure that communications
with industry result in better solutions and value.
Response: The purpose of the rule is to have more effective
communication with industry that results in better solutions and
greater value.
Comment: A respondent recommended that the Government ensure
contracting officers have management support to be innovative in their
communications and collaborations with industry.
Response: Contracting officers already have the authority to be
innovative in their communication with industry (see FAR 1.102-4).
Comment: A respondent suggested that a lack of organizational
support undermines efforts toward improved industry communications.
Response: The Councils do not believe that there is a lack of
Government organizational support for increased communications with
industry and believe the rule will bolster the level of organizational
support for improved industry communications.
Comment: A respondent commented that the acquisition community is
not utilizing the ability to communicate with industry to the fullest
extent.
Response: The rule encourages communication with industry. The
Councils believe it will result in more extensive interaction.
d. Industry/Government Working Group
Comment: Some respondents urge that an industry/Government working
group be established to determine how rules governing communications
can be strengthened.
Response: The rule will be implemented by each agency. As agencies
deem appropriate, implementation may include any number of
collaborative methods.
8. Public Feedback
In addition to the text of the proposed rule, the Councils
welcomed, in the preamble, public feedback suggestions on: which phases
of the acquisition process would benefit from more exchanges with
industry and what specific policies or procedures would enhance
communication during these phases; whether any current Federal
acquisition policies inhibit communication, and if so, how such
policies may be revised to remove barriers to effective communication;
and whether it may 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. The public
feedback will be valuable when developing further initiatives to
address effective and efficient communications during the acquisition
process. The Councils extend their appreciation for the input provided
by the public regarding further enhancing open communication between
industry and the Federal acquisition community. A discussion of the
public input is as follows:
a. Enhanced Communication--All Phases
Comment: Several respondents stated that all phases of the
acquisition lifecycle would benefit from enhanced communication and
that communication is essential during all three phases of the
acquisition process and should not be limited to a specific phase.
Response: The FAR authorizes a broad range of opportunities for
vendor communication; the acquisition workforce is encouraged to engage
industry early and frequently throughout an acquisition in accordance
with applicable statutes, ethics regulations, procurement integrity
requirements, and other statutes or regulations that govern
communication and information sharing.
b. Enhanced Communication--Market Research
Comment: Several respondents stated that Government acquisition
personnel should use market research to communicate agency needs and to
obtain input in requirements development, although the communication
should not be limited only to market research phase. Some respondents
stated that the Government should respond to industry input during
market research including submissions of read-receipts and analysis of
respondents.
Response: The acquisition workforce is encouraged to use the wide
range of techniques for conducting thorough market research as
identified in the FAR and additional agency guidance. Market research
is a critical step that informs key decisions in acquiring best value
goods and services--while an effective and informed market research
practice is important, it is only a building block that plays a part in
the acquisition and affects future outcomes and practices. Effective
market research enables agencies to gain an understanding of the
marketplace and helps inform agencies on requirements development which
in turn help drive strategy and future interactions with potential
vendors.
Comment: Several respondents recommended that Requests for
Information be used to solicit input and that that input and response
should be publicly shared. A respondent stated that Government
acquisition personnel should share information with industry including
strategic plans, acquisition dashboard, and acquisition forecasts.
Response: Issuing an RFI enables agencies to not only understand
the capabilities of industry, but to also develop and improve
acquisition strategy regarding contract type, performance requirements,
performance work statements/statements of work, and performance
metrics. Agencies are encouraged, to the allowable extent, to share
relevant procurement materials and information to support better
industry engagement.
Comment: A respondent stated that some agencies have not
implemented vendor communication plans.
Response: As part of the ongoing Governmentwide effort to improve
vendor communication, and in accordance with OFPP myth-busting
guidance, agencies maintain vendor communication plans for the purpose
of reducing barriers to communication, incorporating more industry
input into agency acquisitions, publicizing
[[Page 73906]]
engagement events, and providing training and awareness to employees
and vendors.
Comment: The respondent added that Chief Management Officers (CMOs)
should be empowered to optimize business processes across Federal
agencies.
Response: Successful acquisitions that deliver best value are
dependent on the work of various participants ranging from the program
office, to the acquisition personnel, to executives leading the
process, to the policy and strategic office, legal counsel, and many
more. As an example, the Category Management Leadership Council (CMLC)
is a council of representatives that come from the agencies who
comprise the majority of Federal procurement spending. The Council
representatives are agency Category Managers who are empowered to
manage, structure, and help guide agency spending to make Federal
procurements more efficient and cost effective.
Comment: A respondent stated that OFPP should define the Federal
acquisition workforce roles and responsibilities and should be granted
the authority to manage the acquisition workforce and related roles.
Response: OFPP statutory authorities and responsibilities are set
forth in the Office of Federal Procurement Policy Act, which is
generally codified within subtitle I of title 41 of the United States
Code. OFPP sets qualification training standards and certification
standards for the civilian acquisition workforce and sets the
requirements for and oversees the Federal Acquisition Institute (FAI).
Having skilled, competent, and professional personnel is essential to
agency success.
Comment: A respondent stated that all significant programs be led
and managed by an ``Integrated Accountability Chain'' similar to the
Integrated Project Team, and industry should be engaged by such teams.
Response: Successful acquisitions that deliver best value are
dependent on the work of various participants ranging from the program
office, to the acquisition personnel, to executives leading the
process, to the policy and strategic office, legal counsel, and many
more. This multidisciplinary team that collaborates and communicates
throughout the process is collectively responsible for leveraging the
Government's buying power.
Comment: The respondent recommended that Government should create a
cost focused culture by using rigorous business case analyses that
assess total costs for decision making and use of share-in-savings.
Response: OFPP recognizes that the Federal Government, in its
procurement activity, should leverage its buying power to the maximum
extent as well as achieve administrative efficiencies and cost savings.
OMB memorandum M-19-13, Category Management: Making Smarter Use of
Common Contract Solutions and Practices dated March 20, 2019, provides
guidance on the use of category management to eliminate redundancies,
increase efficiency, and deliver more value and savings from the
Government's acquisition programs.
c. Enhanced Communication--Solicitation/Award
Comment: A respondent stated that lack of discussions during the
solicitation phase can cause cost increases and program performance
issues and recommended that more conversations, webinars, question/
answer sessions be conducted during the proposal response phase.
Response: A well-planned solicitation process is a valuable
opportunity for agency acquisition personnel and potential vendors to
interact and exchange information on the procurement. Industry days, as
well as presolicitation and preproposal conferences, directly benefit
the government by promoting a common understanding of the procurement
requirements, the solicitation terms and conditions, and the evaluation
criteria. Agency acquisition personnel are encouraged, when
appropriate, to use interactive web-based technology to expand the
reach of the exchange, such as a live webinar with streaming video to
immediately address questions. Agency acquisition personnel are
encouraged to combine such an approach with additional meetings
available to all potential vendors to make solicitation engagements
more useful, especially for large, complex requirements.
Comment: A respondent stated that Government acquisition personnel
use more innovative solicitation techniques including open-ended
solicitation methods that allow industry to provide alternative
solutions, using Statement of Objective as default solicitation method,
and disclosing the weights of all evaluation factors. Another
respondent noted that FAR 15.206 already permits amending the
solicitation to change the evaluation criteria, when the solicitation
no longer meets the Government's needs.
Response: Agency acquisition workforce is encouraged to use the
broad range of FAR techniques to pursue innovative techniques
throughout the acquisition process, including the solicitation phase.
Comment: A respondent stated that information on Federal Business
Opportunities (FBO) is not up to date, is not being updated by
Government officials, and many Government platforms are antiquated. The
respondent also stated that it is difficult to make contact with
Government contracting officers when an offeror has a question
regarding the status of a solicitation.
Response: The Federal Business Opportunities site has been moved to
the System for Award Management and is now known as Contract
Opportunities.
d. Enhanced Communication--Post Award
Comment: A respondent stated that post award continued
communication enables mitigation of disputes, enables course
correction, and enhances past performance information. The respondent
recommended that post award ``kick-off'' meetings be required between
key Government personnel and the incoming contractor to ensure common
understanding of requirements and expectations of contract transition
and execution.
Response: A post-award orientation, also known as a ``kick-off
meeting,'' enables both acquisition personnel and contractor to have a
complete understanding of their roles and responsibilities. This post-
award orientation aids both Government and contractor personnel to (1)
achieve a clear and mutual understanding of all contract requirements,
and (2) identify and resolve potential problems. When deciding whether
post-award orientation is necessary, and if so, what form it will take,
the agency acquisition personnel must consider factors such as type,
value, and complexity of the contract; length of the planned production
cycle; complexity and acquisition history of the product or service,
and complex financing arrangements.
Comment: A respondent stated that thorough past performance
evaluations be required with a full-scale utilization of the Contractor
Performance Assessment Reporting System (CPARS).
Response: In accordance with FAR subpart 42.15, Contractor
Performance Information, agencies are responsible for recording and
maintaining contractor past performance information, including relevant
ratings and supporting narratives. Assessments of a contractor's
performance and contractor adherence to Federal rules and regulations
are
[[Page 73907]]
critical to informing source selection and award decisions and ensuring
the government builds relationships with high-performing suppliers.
OFPP concurs that improving the collection and use of this information
will increase agencies' ability to deliver better outcomes and increase
productivity. OFPP has worked and will continue to work with agency
Chief Acquisition Officers (CAOs) and Senior Procurement Executives
(SPEs) to improve the value of contractor performance assessments and
increase the transparency of data about contractor integrity.
Comment: A respondent stated that post-award debriefings should be
required to contain all information that would otherwise be releasable
in the course of a legal discovery process, including a detailed
description of how the offeror was rated in each of the evaluation
criteria.
Response: The current FAR contains a satisfactory description of
the information to be disclosed, at FAR 15.506(d). In January 2017,
OFPP released general guidance and best practices on debriefings via
the ``myth-busting'' memorandum ``Myth-busting 3--Further Improving
Industry Communication with Effective Debriefing.'' As stated in the
memorandum, ``the debriefing is meant to provide a thorough explanation
of the basis for the award'' and should comply with the requirements in
accordance with FAR 15.506, including an explanation of deficiencies
and strengths of offeror proposal; ratings of debriefed offeror's
proposal and successful offeror's proposal; past performance ratings of
the offeror; overall general ranking of proposals when any ranking was
developed by the agency during the source selection; and reasonable
responses to relevant questions.
Comment: A respondent stated that continued, consistent
communication is needed after an award has been announced. The
respondent cited instances where respondent requested post-award
debriefings and level of response from contracting officers varied from
responsive to no response.
Response: FAR 15.506, Post-award debriefing of offerors provides
for the timely debriefing of offerors as well as the information a
contracting officer is required to include when a timely request for
debriefing is received. In January 2017, OFPP released general guidance
and best practices on debriefings via the ``myth-busting'' memorandum
``Improving Industry Communication with Effective Debriefing'' which
includes guidance on promptly responding to requests for debriefings.
Comment: A respondent recommended that the Government institute a
``360-degree'' assessment of the acquisition process. The respondent
stated that the OFPP ``Acquisition 360'' assessment only applies to a
limited number of agency acquisitions and only focuses on the pre-award
process.
Response: The final rule for FAR Case 2017-014, Use of Acquisition
360 to Encourage Vendor Feedback, will encourage the use of a
standardized survey instrument to facilitate feedback from industry on
their experience with the Federal marketplace.
e. Communication Inhibitors
Comment: Several respondents identified that FAR 15.201, which
addresses exchanges with industry before receipt of proposals could be
further revised for clarification regarding presolicitation and
postsolicitation communication, protecting submitted industry
information, and providing scenarios on how acquisition personnel may
engage with industry.
Response: OFPP has identified improved communication with industry
as a core element for driving better return from each dollar spent on
acquisitions. To maximize the return on its acquisition investment and
to ensure access to high-quality solutions, the acquisition workforce
must ensure it conducts productive interactions with its industry
partners. OFPP, in consultation with the Councils, will continue to
evaluate the relevant FAR sections to ensure clear and accurate
information.
Comment: Several respondents identified that FAR 15.306 which
addresses exchanges with offerors after receipt of proposals could be
further revised and clarified with definitions. Some respondents stated
that the section should be revised to allow communication to better
understand proposals prior to establishing a competitive range and/or
prior to contract award. Several respondents identified additional FAR
sections that could be further revised for clarification (including FAR
part 3, part 10, 15.307, 15.505, 15.506). Several respondents stated
that Government agencies should be more explicit about industry
communication rules. A respondent stated that further public feedback
and input is needed as such changes to the FAR may have unintended
consequences.
Response: Improved communication with industry is a core element
for driving better return from each dollar spent on acquisitions. To
maximize the return on its acquisition investment and to ensure access
to high-quality solutions, the acquisition workforce must ensure it
conducts productive interactions with its industry partners and
maximizes the guidance and instructions provided in the FAR. OFPP, in
consultation with the Councils, will continue to evaluate the relevant
FAR sections to ensure clear and accurate information. The Councils
will carefully consider whether another FAR case is necessary to
expound on communication beyond what is included in this FAR case.
f. Encourage/Require Discussions
Comment: A respondent supported that encouraging or requiring
discussions after establishing the competitive range could be
beneficial to the procurement process to the extent that doing so would
not further impede the procurement process or create unequal
discussions. Another respondent supported the encouraging or requiring
of discussions for contracts valued at twenty million dollars and
above. Other respondents stated that encouraging or requiring
discussions after establishing the competitive range could be
beneficial and this decision should be based on complexity of the
contract.
Response: While agencies do not have the resources, and are not
required, to meet with every vendor at every step of the acquisition
process, information gathered from industry sources plays an invaluable
role in the acquisition process. Industry partners are often the best
source of information, so productive interactions between Federal
agencies and the private sector are encouraged to ensure that the
Government clearly understands the marketplace and can award a contract
or order for an effective solution at a reasonable price. The Federal
Government's ability to achieve successful program outcomes,
effectively and efficiently, depends upon agencies establishing
effective strategies for industry engagement and supporting those
strategies with senior-level commitment.
Comment: A respondent stated that imposition of a communication
requirement on all contracts may unnecessarily slow the acquisition
process. A respondent stated that further steps should be taken to
address contract review processes for lower cost contracts.
Response: While discussions may add time to the acquisition
schedule, the contracting officer should make a thoughtful decision as
to whether to
[[Page 73908]]
conduct discussions and, if so, what the scope and extent of
discussions required should be. Schedule pressures should generally not
be the primary, or even a strong, driver in the contracting officer's
decision on whether or not to hold discussions. One consideration the
contracting officer should take into account is that conducting robust
presolicitation communications with industry may actually minimize the
need for discussions and result in a better technical solution and
improved contract performance. Other considerations include the
complexity of the procurement, and the history of change orders on
previous or related contracts that were due to lack of a clear
understanding of the requirements, and contract terms and conditions by
the parties.
9. Issues Outside the Scope of the Rule
Comment: A respondent commented that the rule should clarify that
professional conference attendance is authorized so industry and
Government dialogue can take place. A respondent encouraged Government
to host procurement-related training conferences and tradeshows and
have Government employees attend those events.
Response: Government acquisition personnel host and or attend
professional conferences consistent with existing laws and regulations
and in accordance with agency procedures. The respondent's suggested
changes are outside the scope of this case.
Comment: A respondent stated that the rule should encourage the
workforce to use the flexibilities in FAR 1.102(d) and/or discourage
officials from issuing guidance that stifles innovation.
Response: The rule encourages communication between Government
acquisition personnel and industry. The respondent is suggesting
changes to FAR 1.102(d) concerning the use of acquisition initiatives;
the suggested changes are outside the scope of this case.
Comment: A respondent commented that the rule should clarify that
professional conference attendance is authorized so industry and
Government dialogue can take place.
Response: Government acquisition personnel attend professional
conferences consistent with existing laws and regulations and in
accordance with agency procedures. The respondent's suggested change is
outside the scope of this case.
Comment: A respondent advocated that agencies should be required to
create and report on metrics to indicate progress towards strategic
objectives.
Response: The respondent's suggestion is outside the scope of the
case.
Comment: A respondent recommended mandatory collection of data on
all protests filed and resolved by agencies, including data on
evaluation technique and contract type. The respondent recommended that
Government agencies or components form a protest review committee
comprised exclusively of Government legal and contracting experts to
perform an independent review of the protest record and oversee any
corrective action.
Response: Protest processes and procedures are described in the
FAR. Agencies may supplement these processes, as necessary and proper.
The remainder of the comment is outside the scope of this case.
Comment: A respondent pointed out that in bill H.R. 1735, the
National Defense Authorization Act appears to have been vetoed by the
President on October 2, 2016, and does not see any action to override
the veto. The respondent questioned whether it is appropriate to issue
regulations in anticipation of a veto override.
Response: The President signed into law S. 1356, Public Law 114-92,
the ``National Defense Authorization Act for Fiscal Year 2016'', on
November 25, 2015, that contains Sec. 887 on which the rule is based.
Comment: A respondent commented that the FAR Council, Defense
Acquisition Regulations System (DARS), Defense Procurement and
Acquisition Policy (DPAP) circumvent the Small Business Act and
Organizational Conflicts of Interest. This proposed illegal change to
the Federal Acquisition Regulations should be scrapped.
Response: This comment is outside the scope of the current rule.
Comment: A respondent provided statements on the West Virginia
House Bill #2339; that it may impact relations with the coal industry.
The bill declares that when coal is mined and used in West Virginia,
coal mines do not have to be permitted by the Environmental Protection
Agency.
Response: This comment is outside the scope of the current rule.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products, Including Commercially
Available Off-the-Shelf (COTS) Items, or for Commercial Services
This final rule does not create any new provisions or clauses, nor
does it change the applicability of any existing provisions or clauses
included in solicitations and contracts valued at or below the SAT, or
for commercial products, including COTS items, or for commercial
services.
IV. Expected Impact of the Rule
The rule is expected to benefit both the Government and industry by
encouraging more constructive communication during the Government's
market research efforts.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993.
VI. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD, GSA, and NASA will
send the rule and the ``Submission of Federal Rules Under the
Congressional Review Act'' form to each House of the Congress and to
the Comptroller General of the United States. A major rule cannot take
effect until 60 days after it is published in the Federal Register. The
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget has determined that this is not a major rule
under 5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
This rule implements section 887 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92),
which provides that agency acquisition personnel are permitted and
encouraged to engage in responsible and constructive exchanges with
industry. The objective of the rule is to encourage Government
acquisition personnel to communicate with industry to determine the
capabilities available in the marketplace in a manner that complies
with existing laws and regulation.
There were no significant issues raised by the public in
response to the Initial
[[Page 73909]]
Regulatory Flexibility Analysis provided in the proposed rule.
DoD, GSA, and NASA do not expect this rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, et seq.
Data obtained from the Federal Procurement Data System for FY 2019
through 2021, indicates that an average of 2,559,356 new awards were
awarded to an average of 61,797 small entities annually.
This rule does not impose any new reporting, recordkeeping or
other compliance requirements.
There are no known alternative approaches to the rule that would
accomplish the objectives of the statute.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VIII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. 3501-3521).
List of Subjects in 48 CFR Part 1
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 1 as set forth
below:
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
0
1. The authority citation for 48 CFR part 1 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
0
2. Amend section 1.102-2 by--
0
a. Revising paragraph (a)(4);
0
b. Redesignating paragraphs (a)(5) through (7) as paragraphs (a)(6)
through (8), and
0
c. Adding a new paragraph (a)(5).
The revision and addition 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.
* * * * *
[FR Doc. 2022-25959 Filed 11-30-22; 8:45 am]
BILLING CODE 6820-EP-P
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This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.