As a young contracting officer, it was drilled into my head that conversations with contractors were very dangerous. The reason was that any conversation with one contractor could lead to other contractors claiming that the CO was not maintaining a fair and competitive environment. Over the years, as I became more experienced, I better understood the limits of conversations I could have with potential offerors. Many companies just wanted to meet to discuss their capabilities and make me, the CO, aware of them without addressing a potential acquisition. These discussions were okay, but the CO always had to be on guard to ensure they did not discuss future requirements.
In recent years, the Government has recognized the need to increase communication in the pre-solicitation stage of the acquisition process to improve market research and position itself to get the right contractors to bid on an RFP. FAR 1.102-2 (a) 4 of Performance standards now reads:
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.
The key change to note is the language changed from maintaining a fair and competitive environment to not promoting an unfair competitive advantage. Industry would have to prove that conversations created a competitive advantage versus the claim that all discussions must be equal in the pre-solicitation stage. This change doesn’t allow CO to share data equally with potential bidders once an RFP is issued.
This change allows a CO to expand market research with industry and discuss capabilities more specific to a potential acquisition. Determining the industry’s capabilities was difficult when the CO could not ask specific questions of a particular contractor out of concern that those questions could lead to a claim that the CO was not maintaining a fair and competitive environment. The change to the word “unfair” versus “fair” allows the CO to ask those questions as long as the Government is not offering feedback on the viability of the solution/product the company may offer.
Now, COs can engage in exchanges about industry capabilities instead of just asking for information without discussion or feedback. COs can now review Requests for Information and ask questions on unclear areas. If the Government engages in technical leveling by discussing deficiencies or improvements to a product or service, that does give a company an unfair advantage before solicitation. COs can now guide their customers to ask questions to understand industry capabilities better. The Government will now produce requirements in line with industry capability.
