Posted on 1/26/2012 7:54 AM

"EXCHANGES WITH INDUSTRY BEFORE RECEIPT OF PROPOSALS"

Yes, that is the title of FAR 15.201.  "Exchanges of information among all interested parties, from the earliest identification of a requirement through the receipt of proposals, are encouraged."  (Emphasis added.)  All interested parties are encouraged to get involved in talking about the government's needs.  FAR 15.201 says such communication is encouraged so that potential bidders (offerors) can determine "whether or how they can satisfy the Government's ability to obtain quality supplies and services, including construction, at reasonable prices, and increase efficiency in proposal preparation, proposal evaluation, negotiation, and contract award."  It reads like an open invitation to do a lot of talking, doesn't it?

There are a lot of success stories about how well FAR 15.201 communication can work.  But there also are some real horror stories about how lack of communication can kill a procurement in more ways than one.

The regulation encourages industry days, small business conferences, public hearings, market research, one-on-one meetings, presolicitation notices, draft RFP's, RFI's, presolicitation or preproposal conferences and site visits (during which talking can take place).  One on one meetings are encouraged.

The only warnings in the section are to be consistent with the integrity requirements in FAR 3.104 and when the buy is on the street, the contracting officer cannot just talk to one bidder about information necessary for proposal submission without sharing that information with all bidders.  FAR 3.104 covers certain obvious fairness, favoritism, ethics and self-aggrandizement rules.  (No bribes, conflicts of interest, disclosure of contractor secrets or source selection information prior to award.)  It does not inhibit communications contemplated by FAR 15.201.  FAR 3.104 covers basic moral tenents.  It is not an excuse to refuse to talk with contractors.

While we're on FAR 3.104, we also should point out it does not inhibit release of source selection information after award.  FAR 15.506 on debriefings states the minimum information to be released.  The more source selection information that is released at debriefings, the fewer the protests.  We can testify that we once went to a debriefing at which the contracting officer released the SSEB report and the SSA's decision - right there at the debriefing!  We suggest this always ought to be the case.  (Redacted, of course, for contractor secret data.) 

We think FAR 15.201 is pretty straightforward and easy to understand and implement.  OFPP agrees.  Senior government acquisition officials agree.

Once the contract is awarded, it contains an implied obligation on the government's part to communicate and cooperate with the contractor, "to do whatever is reasonably necessary to enable the contractor to perform".  This is a time honored legal principle read into the contract as a matter of law.  If that is true, as it is, after award, does it not also make sense to treat communications before the proposal submission date mandatory as a matter of law?  We think so.

bill@spriggsconsultingservices.com

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