Early Stage Communication Considerations in U.S. Federal Contracting

By April 24, 2024 No Comments
TILLIT LAW PLLC

The Federal Acquisition Regulation (FAR) encourages open communication between prospective contractors and the Government from the early stages of requirements identification up to the submission of proposals. Such exchanges of information between Government stakeholders and prospective contractors often lead to early identification and resolution of procurement issues. These early-stage communications may involve discussions relating to various topics, including acquisition strategy, planning schedules, requirements feasibility, suitability of proposal instructions, and evaluation criteria. These exchanges also give prospective offerors and industry stakeholders an opportunity to resolve questions and concerns about the pending procurement in a timely manner.

The Government utilizes several different techniques to promote information exchanges with prospective contractors before the receipt of proposals. Examples of such methods include industry or small business conferences, public hearings, market research, one-on-one meetings with potential offerors, pre-solicitation notices, draft requests for proposals (DRFP), and requests for information (RFI). Depending upon the nature, scope, and size of the procurement, the procuring agency may employ one or more of these techniques to solicit industry input. For instance, since the FAR does not require a specific format for RFIs, the Government may utilize them when it does not intend to award a contract presently but nevertheless wishes to obtain price, delivery, capabilities, or other market information for acquisition planning purposes. Meanwhile, a complex multi-stage solicitation for a sizeable dollar-value procurement may require a combination of RFIs, pre-solicitation conferences, site visits, and industry days to gather the requisite information during the pre-solicitation and pre-award phases.

Regardless of the early-stage communications employed, Government personnel must follow certain rules and guidelines when communicating with the industry to maintain the integrity of the procurement process. An example of such a rule is provided in FAR § 15.201(d), which mandates that the Government follow specific notice requirements when publicizing its needs or soliciting input from the industry. Another rule requires agency officials to promptly report any contacts or communications with a prospective contractor regarding non-federal employment in writing. While the choice of early information exchange techniques remains firmly within the Government’s discretion, certain general communication limitations and considerations are always applicable.

For instance, as is widely known in the contracting community, Government officials are generally prohibited from holding communications that favor one prospective contractor over another. Consequently, when conducting pre-solicitation or pre-proposal conferences, the Government is required to make distributed materials equally available to all prospective contractors. Another similar restriction prohibits officials from granting prospective contractors unequal access to source selection information. Once a solicitation is released, the FAR requires that the contracting officer (CO) be the focal point of all exchanges with prospective offerors, which reduces the risk of inadvertent unfair competitive advantage. After this stage, it is the CO’s responsibility to make acquisition information equally available to all interested contractors. If the CO discloses information necessary to prepare proposals to one prospective offeror, then that information must be made available to all prospective offerors by the next general release of information.

Notably, FAR § 15.201(f) permits the disclosure of certain general information about the Government’s mission needs and future requirements at any time. However, such disclosures, including those contemplated during early-stage communications, must not violate any statutory requirements, prohibitions, or restrictions. FAR § 3.104 outlines several such requirements, including express restrictions on present and former government officials from knowingly disclosing contractor bid or proposal information or other source selection information before the award of a related government contract. Furthermore, FAR § 15.306(e) prevents government officials from revealing a prospective contractor’s technical solutions, such as a unique technology, innovative uses of commercial products or services, and any information that would compromise a prospective contractor’s intellectual property. Generally, government officials may also not reveal a contractor’s detailed pricing information without obtaining its prior express consent. There is a similar prohibition on disclosing the names of individuals who provide reference information about a prospective contractor’s past performance. Therefore, while FAR § 15.201(f) offers flexibility, government officials are required to carefully navigate early-stage communications to avoid contractor allegations of procurement integrity violations due to improper disclosures.

Open early-stage communications are necessary to achieve various critical acquisition objectives, including industry participation, which leads to adequate competition. However, prospective contractors should be aware that while such positive procurement outcomes are desirable, the Government is bound by rules and restrictions when engaging in such communications. Contractors should be mindful of these communication limitations during the early procurement phases to ensure equal footing with the competition at this critical juncture. If a violation of these communication limitations creates an unfair competitive advantage at this stage, the Government is obligated to take corrective action to offset that advantage and prevent further competitive prejudice. If such a violation is suspected, prospective contractors should not hesitate to promptly raise the issue with Government officials or contact counsel to ensure their rights are appropriately preserved.

This Federal Procurement Insight is provided as a general summary of the applicable law in the practice area and does not constitute legal advice. Contractors wishing to learn more are encouraged to consult the TILLIT LAW PLLC Client Portal or Contact Us to determine how the law would apply in a specific situation.