Lesley Field, Acting Administrator of OFPP, will most likely release OFPP's second myth buster memorandum to senior procurement officials today. Last year, the first myth buster memorandum was quite a hit and we posted several blogs about it over the last year. We will meet with Lesley day after tomorrow to explore with her how to improve government/industry communications at the working presolicitation, preproposal and post award stages of procurement. In the meantime, here are some thoughts we first expressed in a blog posting entitled "Exchanges with Industry Before Receipt of Proposals".
Yes, FAR 15.201 is entitled "Exchanges with Industry Before Receipt of Proposals". "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 4reasonable priced, and increase efficiency in proposal preparation, negotiation, and contract award." The regulation reads like an open invitation to do a lot of talking.
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 specifically 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).
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.) Stuff we learned in Sunday School. It does not inhibit communications contemplated by FAR 15-201. FAR 3.104 covers basic morality; it is not an excuse to refuse conversation.
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 better the entire procurement process. We once went to a debriefing at which the contracting officer released the key portions of the SSEB report and the entire SSA's decision (expurgated to remove contractor proprietary and confidential information). We suggest this always ought to be the case. OFPP agrees.
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 every contract as a matter of law. If that it true, does it not make sense to treat communications before proposals submission mandatory as a matter of law? We think so.
Postscript: The latest myth busting memorandum is at
http://www.whitehouse.gov/sites/default/files/omb/procurement/memo/myth-busting-2-addressing-misconceptions-and-further-improving-communication-during-the-acquisition-process.pdf. We will comment on it later.
bill@spriggslawgroup.com
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