Understanding the Basics: Contractor Communications with Government Procurement Folks

Here’s the problem. Everyone realizes (at least intellectually) that good communication begets a good process. It streamlines, removes impediments, injects innovative ideas, and usually makes all participants happier and satisfied. In fact, a poet might say that “the talk of the wise blesses, the steel-trapped mouth distresses.”

Despite this common perception, contractor and government acquisition are often afraid to converse at various important junctures. They fear violating some arcane law or losing an otherwise well-oiled procurement to a bid protest. So, to avoid a localized result, they shy away from the element that could make the whole procurement process generally better: talking, sharing ideas, workshopping, communicating.

Fortunately, the trend—driven by a new FAR revision—is to encourage effective and fair communications between contractors and the government. So, let’s tour some important developments and principles that should calm communication anxiety.

FAR Guidance

In late 2022, the FAR was revised to encourage communication between the Government and contractors. Here’s the text from FAR 1.102-2(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.

This language explicitly buttresses communication policy that already existed in FAR 15.201 There, the FAR encourages the Government and contractors to communicate “from the earliest identification of a requirement through receipt of proposals.” These exchanges are important for key reasons, such as:

improving reciprocal understanding of Government requirements and industry capabilities
enhancing the Government’s ability to obtain quality supplies and services
increasing efficiency in proposal preparation, proposal evaluation, negotiation, and award
resolving wrinkles in the Government’s acquisition strategy

Not only does the FAR outline rationales for Government-contractor communications but also how those interactions can occur. For example:

general industry and small business conferences and public hearings
presolictation or preproposal conferences
market research, including presolicitation notices, draft RFPs, and RFIs

Perhaps surprisingly (for the more timorous among us), the FAR also explicitly allows “one-on-one meeting with potential offerors.” Sure, where potential contract terms are discussed, the contracting officer should participate. And of course, communications should not give any offeror a leg up on the competition; nor should communications disclose a potential offeror’s confidential information (which might violate the Procurement Integrity Act). But as a general matter, a contractor and the Government can directly exchange ideas, views, suggestions, etc. even if no one else is in the room.

Published Guidance

What are the limits, you ask? Well, they aren’t rigorously defined. But over the past decade, the Office of Federal Procurement Policy has issued several “myth-busting” memos that shape the general contours of allowable communications:

We certainly don’t have time here to review every tidbit (though I commend each memo to a careful read). But here is a sprinkling of highlights in no particular order:

A meeting between a contractor and contracting officer is not like a meeting with a registered lobbyist that must be disclosed (unless, of course, the Government meets with a registered lobbyist for the contractor).
Artificially restricting communications between the Government and contractors won’t prevent a protest; in fact, such restraint might make a protest more likely.
The Government should provide feedback to unsuccessful offerors whenever possible—even if not required by the FAR.
Conversations between the Government industry shouldn’t be confined to technical requirements. Parties can also discuss terms and conditions, pricing structure, performance metrics, etc.
A Government-contractor tête-à-tête can generate organizational conflicts of interest, if not done right. But an OCI doesn’t automatically result from Government-contractor interactions.

The takeaway: contractors and Government acquisitions teams don’t have to act as if they’re gagged and bound, whether before, during, or after a procurement. They can talk; and if they talk enough, maybe they’ll sing.