The November 29, 2016 edition of the Federal Register contains a proposed amendment to the Federal Acquisition Regulation (FAR) aimed at encouraging pre-acquisition communications between industry professionals and federal agencies. This amendment is part of a five-year long effort by the Obama Administration to clarify that communications between potential government contractors and federal agencies are not only allowed, but encouraged.
The proposed rule would amend FAR 1.102-2(a)(4), which currently states that “[t]he Government must not hesitate to communicate with the commercial sector as early as possible in the acquisition cycle to help the Government determine the capabilities available in the commercial marketplace. The Government will maximize its use of commercial products and services in meeting Government requirements.” In the revised version, the following language would be added:
“Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry as part of market research … so long as those exchanges are consistent with existing laws, regulations, and promote a fair competitive environment.”
There are a number of laws and regulations that may be come into play during pre-acquisition exchanges with government officials, including the Procurement Integrity Act, 41 U.S.C. § 423, Anti-Kickback Act, 41 U.S.C. § 51 et seq., restrictions on lobbying activity, regulations on collusive bidding, prohibition on contingent fee arrangements, and various laws prohibiting gifts and gratuities to and bribery of federal officials.