On December 1, 2022, the Department of Defense, General Services Administration, and NASA published a final rule addressing “Effective Communication Between Government and Industry,” which is aimed at “encourag[ing] communication between Government acquisition personnel and industry.”
The rule adds a paragraph to FAR 1.102-2 that reads as follows:
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.
There were 19 comments on the proposed rule, which raised a range of issues, including potential changes to the FAR beyond Part 1; a desire for the rule to “require” (rather than “encourage”) communication between Government and industry; and concerns about “Rigid Regulatory Structure Inhibit[ing] Communication.”
The proposed rule also had invited public feedback on ways to enhance communication between the Government and industry, including “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.” A number of respondents expressed support for encouraging or requiring discussions, while one respondent expressed concern that requiring discussions for all contracts “may unnecessarily slow the acquisition process.”
The final rule implements a section of the National Defense Authorization Act for Fiscal Year 2016, and has an effective date of December 30, 2022.