[Federal Register Volume 87, Number 230 (Thursday, December 1, 2022)]
[Rules and Regulations]
[Pages 73902-73909]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-25959]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 1

[FAC 2023-01; FAR Case 2016-005; Item II; Docket No. FAR-2016-0005, 
Sequence 1]
RIN 9000-AN29


Federal Acquisition Regulation: Effective Communication between 
Government and Industry

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2016. This rule 
clarifies that agency acquisition personnel are permitted and 
encouraged to engage in responsible and constructive exchanges with 
industry, so long as those exchanges are consistent with existing law 
and regulation and do not promote an unfair competitive advantage to 
particular firms.

DATES: Effective: December 30, 2022.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949 or by email at [email protected] for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2023-01, FAR Case 
2016-005.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule at 81 FR 85914 on 
November 29, 2016, to revise the FAR to implement section 887 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016 
(Pub. L. 114-92). This provision provides that the Federal Acquisition 
Regulatory Council shall prescribe a regulation making clear that 
agency acquisition personnel are permitted and encouraged to engage in 
responsible and constructive exchanges with industry, so long as those 
exchanges are consistent with existing law and regulation and do not 
promote an unfair competitive advantage to particular firms. Nineteen 
respondents submitted comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule.
    A discussion of the comments and the changes made to the final rule 
as a result of comments received are provided as follows:

A. Summary of Significant Changes From the Proposed Rule

    Minor changes to the proposed rule are made as a result of public 
comments. At FAR 1.102-2(a)(4), first sentence, the words ``the 
commercial sector'' are deleted and replaced with the word 
``industry'', the word ``commercial'' is deleted, and FAR 1.102-
2(a)(4), second sentence, the words ``as part of market research (see 
10.002)'' are replaced with ``(e.g., see 10.002 and 15.201)''. These 
changes are made to clarify that FAR 1.102-2(a)(4) applies to 
communication with all of industry.
    At FAR 1.102-2(a)(4), second sentence, the text that describes 
examples of exchanges with industry has been abbreviated to provide 
citations to those descriptions in their respective parts of the FAR; 
and the text has been changed from ``so long as those exchanges . . . 
promote a fair competitive environment,'' to ``so long as those 
exchanges . . . do not promote an unfair competitive advantage to 
particular firms,'' in order to clarify the purpose of the sentence and 
better align with the statute.

B. Analysis of Public Comment

1. General Support for the Rule
    Comment: A number of respondents that provided comments stated 
their support of the proposed rule change.
    Response: The Councils acknowledge the support of the respondents.
2. Expansion of the Rule Beyond FAR Part 1
    Comment: A number of respondents indicated that this rule should 
expand beyond FAR part 1.
    Response: This FAR case implements the requirement of section 887 
in part 1; the Councils will carefully consider whether another FAR 
case would be beneficial to furthering the goal of effective 
communication. Regulatory coverage is just one of a number of ways in 
which meaningful dialogue is facilitated between the Government and 
contractors. For example, the Office of

[[Page 73903]]

Federal Procurement Policy (OFPP) has issued ``myth-busting'' memoranda 
to dispel workforce misunderstandings about what communications are 
allowed. The Chief Acquisition Officers Council sponsors a 
Governmentwide knowledge management portal, known as the Periodic Table 
of Acquisition Innovations, which includes tested artifacts provided by 
agency acquisition innovation advocates to improve communication with 
prospective and actual offerors. Agency industry liaisons and small 
business specialists assist program and acquisition personnel in 
developing strategies for engaging potential vendors to build and 
maintain the diversity and resilience of the agency's supplier base, 
with small business specialists focused, in particular, on 
communications that can help bring socioeconomic and other small 
businesses to the base. OFPP has agreed to confer with agency 
acquisition innovation advocates, agency industry liaisons, and small 
business specialists, as well as program and project personnel whose 
programs are supported by contractors, review ideas on effective 
communication provided in response to crowdsourcing campaigns, and 
discuss feedback with the Councils.
3. Rule Should Do More To Make an Impact on Communication
a. Establish Agency Official Responsibilities
    Comment: A respondent stated that the rule should incentivize 
officials to enhance levels of communication without fear of reprimand.
    Response: The Councils believe the rule builds on existing guidance 
in FAR subpart 1.1 and FAR part 10, as well as the ongoing efforts by 
industry and Government to promote greater Government-vendor 
communications. Acquisition innovation advocates, industry liaisons, 
and OFPP's continued efforts are expected to help encourage Government 
acquisition personnel to engage with industry in accordance with 
existing law and regulation.
b. Develop Government Communication Rules
    Comment: A respondent requests that this rule should expand FAR 
part 10 to include rules on allowable communications.
    Response: FAR 10.002(b)(2) covers market research techniques and 
the Councils believe that additional changes are not necessary at this 
time.
    Comment: A respondent requests that the rule should create safe 
havens from bid protest for contracting officers that communicate with 
industry.
    Response: The rule encourages communication between Government 
acquisition personnel and industry as long as the exchanges do not 
promote an unfair competitive advantage to particular firms, and are 
consistent with existing laws and regulations.
    Comment: A respondent commented that the rule be expanded to 
include key stakeholders in the communications such as technical 
personnel.
    Response: The Government acquisition personnel referenced in the 
rule includes key technical personnel. FAR 1.102(c) describes the 
acquisition team as including the technical, supply, and procurement 
communities and the customers they serve.
    Comment: A respondent commented that before implementing this rule, 
the Councils should look at Community of Practice and agency 
communication plans, gather ideas, supplement the rule with non-
exclusive list of ideas and crosswalk them to FAR parts 3, 13, 14, and 
15.
    Response: The Councils reviewed several parts of the FAR that 
provide policy on exchanges between Government and industry. The 
Councils determined that amending FAR part 1 was the appropriate place 
in the FAR for this rule. FAR part 1 sets forth basic policies and 
general information about the Federal Acquisition Regulations System 
including FAR parts 3, 13, 14, and 15.
    Comment: A respondent stated that the rule should require OFPP to 
create a FAR-based series of practice, training, or engagement aids to 
assist in the communication process.
    Response: The FAR provides guidance and direction to the 
contracting workforce and industry. While the FAR sometimes implements 
guidance published by OFPP, the FAR does not provide direction to OFPP.
c. Require Communication Between Government and Industry
    Comment: A respondent stated that the rule should force industry 
and Government communication.
    Response: This change to the FAR encourages effective communication 
between Government and industry where appropriate. The rule is not a 
mandate, allowing contracting officers the discretion to use business 
judgment and best practices.
    Comment: Several respondents commented that the rule is not likely 
to have an impact on the Federal acquisition process as there are no 
required actions.
    Response: The rule amends the FAR to implement section 887 of the 
NDAA for FY 2016. The rule clarifies that agency acquisition personnel 
are permitted and encouraged to engage in responsible and constructive 
exchanges with industry, so long as those exchanges are consistent with 
existing law and regulation and do not promote an unfair competitive 
advantage to particular firms. Section 887 did not require 
communication actions, but clarified that they be permitted and 
encouraged.
4. Alternative to the Rule
    Comment: A respondent noted that revising FAR 1.102 would not 
enhance communication between Government and industry because very few 
contracting officers read this part of the FAR or even know that it 
exists.
    Response: The revision in FAR 1.102 is meant to enhance 
communication between Government and industry when coupled with the 
existing guidance in FAR subpart 1.1 and the market research strategies 
set forth in FAR part 10. The rule will be disseminated in accordance 
with agency procedures to ensure that Government acquisition personnel 
are aware of the changes to FAR 1.102.
    Comment: A respondent stated that FAR part 10 should be amended to 
change the title and add a new subpart containing policy about 
communications with industry.
    Response: The rules and guidance pertaining to Government exchanges 
with industry already exist in the FAR, for example FAR 1.102, FAR part 
10 and FAR 15.201. The Councils do not believe the requested changes to 
FAR part 10 are necessary.
5. Recommended Changes to the Proposed Text
    Comment: Some respondents stated that the text could be viewed as 
limiting communication to market research and recommended that the text 
be more inclusive by covering all of the acquisition process.
    Response: The FAR text has been revised to remove a reference to 
market research and instead provide citations to sections of the FAR 
that provide examples of communication policies and procedures located 
elsewhere in the FAR.
    Comment: A respondent stated that the text is redundant, since FAR 
10.002 encourages exchanges with industry.
    Response: The rule encourages exchanges between Government and 
industry. FAR 10.002 provides market research procedures.
    Comment: A respondent suggested the rule be revised to 
affirmatively state the benefits of proactive, ongoing communication 
with industry.

[[Page 73904]]

    Response: There are benefits to proactive, ongoing communication 
with industry. However, the Councils do not believe the suggested 
changes are necessary to implement section 887 of the NDAA for FY 2016.
    Comment: A respondent stated that the text should cover the 
preproposal submission industry exchanges described at FAR 15.201.
    Response: FAR part 1 sets forth basic policies and general 
information about the Federal Acquisition Regulations System including 
FAR part 15.
    Comment: Some respondents suggested rewording ``commercial sector'' 
unless the rule only applies to commercial items/vendors.
    Response: In the first sentence of FAR 1.102-2(a)(4) the term 
``commercial sector'' is changed to ``industry''.
    Comment: A respondent suggested dropping the word ``commercial'' 
from ``commercial marketplace.''
    Response: In the first sentence of FAR 1.102-2(a)(4), ``commercial 
marketplace'' is changed to ``marketplace''.
    Comment: A respondent suggested changing the word ``communicate'' 
to ``exchange information''.
    Response: The first sentence of FAR 1.102-2(a)(4) will not be 
changed to replace ``communicate'' with ``exchange information''. The 
term ``communicate'' is used here in its normal dictionary sense, not 
as the technical usage at FAR 15.306. The Councils believe that the 
exchange of information is part of communication and that the suggested 
change is not needed.
    Comment: A respondent suggested adding after ``(see 10.002)'' the 
phrase ``under the general guidelines as provided in FAR 15.201 for all 
procurements, . . .''.
    Response: The FAR text has been revised to remove a reference to 
market research and instead reference those sections of the FAR where 
corresponding procedures exist. In addition, the Councils reviewed 
several parts of the FAR that provide policy on exchanges between 
Government and industry. The Councils determined that amending FAR part 
1 was the appropriate place in the FAR for this rule. FAR part 1 sets 
forth basic policies and general information about the Federal 
Acquisition Regulations System including FAR 15.201.
6. OFPP Myth-Busting Memos
    Comment: A number of respondents raised concerns with the OFPP's 
Myth-Busting memoranda referenced in the Federal Register Notice for 
the proposed rule. A respondent stated that the Myth-Busting memoranda 
did not reflect a full understanding about why contracting officers are 
often hesitant to communicate with industry. In addition, the 
respondents were concerned that the memoranda did not go far enough to 
change the misperception that communications with industry are not 
endorsed by the acquisition community.
    Response: The OFPP's Myth-Busting memoranda highlight the 
importance of meaningful dialogue between Government and industry. 
Within the context of this rulemaking, the reference to the memoranda 
in the preamble of the proposed rule served as an invitation for 
interested parties to share their assessment of the impediments to 
effective communication during the acquisition process. It was the 
intent of the Councils to obtain valuable insights from the community 
affected most by these challenges so as to develop innovative 
approaches for overcoming these obstacles in the future.
7. General Concerns About Communications Between Government and 
Industry
a. Rigid Regulatory Structure Inhibits Communication
    Comment: Some respondents stated that the acquisition workforce is 
constrained by regulations, policies, and procedures that limit 
communication and flexibility and are incompatible with modern 
workforce culture and technology changes.
    Response: The Councils believe the rule coupled with the existing 
guidance in FAR subpart 1.1 will better equip Federal acquisition 
officials to actively engage with industry and overcome the concerns 
and constraints cited by the respondents.
    Comment: Some respondents noted that rigid regulatory structure can 
cause risk averse contracting officers to shun communications with 
industry unless it is expressly allowed.
    Response: The Councils believe the encouragement provided in the 
rule will assuage the concerns of risk averse contracting officers.
    Comment: Several respondents remarked that contracting officers may 
be hesitant to engage in communications with industry because they fear 
saying something inappropriate or drawing a protest because of their 
statements.
    Response: The Councils believe the encouragement provided in the 
rule will assuage the concerns of fearful contracting officers.
    Comment: A respondent emphasized the flexibilities in the FAR.
    Response: The Councils acknowledge the input provided.
b. Need for Acquisition Workforce Training
    Comment: Several respondents commented that there is a need to 
improve and increase the communication training that is available to 
the acquisition workforce.
    Response: Training for the Federal acquisition workforce is 
developed and provided in accordance with agency procedures.
    Comment: A respondent suggested including industry speakers at 
training events and forums. Another respondent recommended instituting 
cross-functional training and an industry exchange program. A 
respondent asserted that communication training should be comprehensive 
and required for contracting personnel.
    Response: Training for the Federal acquisition workforce is 
developed and provided in accordance with agency procedures.
c. Lack of Support for Communicating With Industry
    Comment: A respondent commented that industry is ignorant of 
Government rules and processes surrounding communication.
    Response: It is incumbent on industry to ensure their workforces 
are educated in the rules and processes involved with communicating 
with the Government.
    Comment: A respondent commented that some agencies have not 
implemented vendor communication plans and are not participating in the 
``vendor engagement collaboration community of practice.''
    Response: OFPP has called for vendor communication plans and 
oversees their implementation Governmentwide. Participation in the 
``vendor engagement collaboration community of practice'' is 
encouraged, but not required, by OFPP.
    Comment: A respondent commented that effective communication must 
be ingrained across an organization to achieve any lasting effect.
    Response: The Councils agree that wide-spread adoption of effective 
communication techniques is warranted and believe the rule will further 
that goal.
    Comment: A respondent recommended that the Government establish 
agency industry liaisons/ombudsmen to facilitate communication.
    Response: In its Myth-Busting #4 Memorandum, ``Strengthening 
Engagement with Industry Partners Through Innovative Business 
Practices'', issued April 30, 2019, OFPP asked each Chief Financial 
Officer Act agency to name an industry liaison. Further

[[Page 73905]]

establishment of an agency industry liaison or ombudsman is done in 
accordance with each agency's procedures.
    Comment: A respondent recommended expanded use of collaboration 
tools and technology.
    Response: The use of collaboration tools and technology is in 
accordance with agency procedures.
    Comment: A respondent recommended creation of opportunities to 
exchange information not related to specific procurements, such as 
reverse industry days and scenario-based role-playing opportunities.
    Response: Opportunities to exchange information not related to 
specific procurements are in accordance with agency procedures.
    Comment: A respondent noted that the Government has improved the 
availability of information.
    Response: The Councils acknowledge the input provided.
    Comment: A respondent commented that communication with industry is 
becoming a ``check the box'' exercise.
    Response: The Councils do not agree that communication with 
industry is a ``check-the-box'' exercise. The rule encourages 
Government acquisition personnel to have engagement with industry.
    Comment: A respondent commented that Government should increase the 
amount of communications with industry and ensure that communications 
with industry result in better solutions and value.
    Response: The purpose of the rule is to have more effective 
communication with industry that results in better solutions and 
greater value.
    Comment: A respondent recommended that the Government ensure 
contracting officers have management support to be innovative in their 
communications and collaborations with industry.
    Response: Contracting officers already have the authority to be 
innovative in their communication with industry (see FAR 1.102-4).
    Comment: A respondent suggested that a lack of organizational 
support undermines efforts toward improved industry communications.
    Response: The Councils do not believe that there is a lack of 
Government organizational support for increased communications with 
industry and believe the rule will bolster the level of organizational 
support for improved industry communications.
    Comment: A respondent commented that the acquisition community is 
not utilizing the ability to communicate with industry to the fullest 
extent.
    Response: The rule encourages communication with industry. The 
Councils believe it will result in more extensive interaction.
d. Industry/Government Working Group
    Comment: Some respondents urge that an industry/Government working 
group be established to determine how rules governing communications 
can be strengthened.
    Response: The rule will be implemented by each agency. As agencies 
deem appropriate, implementation may include any number of 
collaborative methods.
8. Public Feedback
    In addition to the text of the proposed rule, the Councils 
welcomed, in the preamble, public feedback suggestions on: which phases 
of the acquisition process would benefit from more exchanges with 
industry and what specific policies or procedures would enhance 
communication during these phases; whether any current Federal 
acquisition policies inhibit communication, and if so, how such 
policies may be revised to remove barriers to effective communication; 
and whether it may be beneficial to encourage or require contracting 
officers to conduct discussions with offerors after establishing the 
competitive range for contracts of a high dollar threshold. The public 
feedback will be valuable when developing further initiatives to 
address effective and efficient communications during the acquisition 
process. The Councils extend their appreciation for the input provided 
by the public regarding further enhancing open communication between 
industry and the Federal acquisition community. A discussion of the 
public input is as follows:
a. Enhanced Communication--All Phases
    Comment: Several respondents stated that all phases of the 
acquisition lifecycle would benefit from enhanced communication and 
that communication is essential during all three phases of the 
acquisition process and should not be limited to a specific phase.
    Response: The FAR authorizes a broad range of opportunities for 
vendor communication; the acquisition workforce is encouraged to engage 
industry early and frequently throughout an acquisition in accordance 
with applicable statutes, ethics regulations, procurement integrity 
requirements, and other statutes or regulations that govern 
communication and information sharing.
b. Enhanced Communication--Market Research
    Comment: Several respondents stated that Government acquisition 
personnel should use market research to communicate agency needs and to 
obtain input in requirements development, although the communication 
should not be limited only to market research phase. Some respondents 
stated that the Government should respond to industry input during 
market research including submissions of read-receipts and analysis of 
respondents.
    Response: The acquisition workforce is encouraged to use the wide 
range of techniques for conducting thorough market research as 
identified in the FAR and additional agency guidance. Market research 
is a critical step that informs key decisions in acquiring best value 
goods and services--while an effective and informed market research 
practice is important, it is only a building block that plays a part in 
the acquisition and affects future outcomes and practices. Effective 
market research enables agencies to gain an understanding of the 
marketplace and helps inform agencies on requirements development which 
in turn help drive strategy and future interactions with potential 
vendors.
    Comment: Several respondents recommended that Requests for 
Information be used to solicit input and that that input and response 
should be publicly shared. A respondent stated that Government 
acquisition personnel should share information with industry including 
strategic plans, acquisition dashboard, and acquisition forecasts.
    Response: Issuing an RFI enables agencies to not only understand 
the capabilities of industry, but to also develop and improve 
acquisition strategy regarding contract type, performance requirements, 
performance work statements/statements of work, and performance 
metrics. Agencies are encouraged, to the allowable extent, to share 
relevant procurement materials and information to support better 
industry engagement.
    Comment: A respondent stated that some agencies have not 
implemented vendor communication plans.
    Response: As part of the ongoing Governmentwide effort to improve 
vendor communication, and in accordance with OFPP myth-busting 
guidance, agencies maintain vendor communication plans for the purpose 
of reducing barriers to communication, incorporating more industry 
input into agency acquisitions, publicizing

[[Page 73906]]

engagement events, and providing training and awareness to employees 
and vendors.
    Comment: The respondent added that Chief Management Officers (CMOs) 
should be empowered to optimize business processes across Federal 
agencies.
    Response: Successful acquisitions that deliver best value are 
dependent on the work of various participants ranging from the program 
office, to the acquisition personnel, to executives leading the 
process, to the policy and strategic office, legal counsel, and many 
more. As an example, the Category Management Leadership Council (CMLC) 
is a council of representatives that come from the agencies who 
comprise the majority of Federal procurement spending. The Council 
representatives are agency Category Managers who are empowered to 
manage, structure, and help guide agency spending to make Federal 
procurements more efficient and cost effective.
    Comment: A respondent stated that OFPP should define the Federal 
acquisition workforce roles and responsibilities and should be granted 
the authority to manage the acquisition workforce and related roles.
    Response: OFPP statutory authorities and responsibilities are set 
forth in the Office of Federal Procurement Policy Act, which is 
generally codified within subtitle I of title 41 of the United States 
Code. OFPP sets qualification training standards and certification 
standards for the civilian acquisition workforce and sets the 
requirements for and oversees the Federal Acquisition Institute (FAI). 
Having skilled, competent, and professional personnel is essential to 
agency success.
    Comment: A respondent stated that all significant programs be led 
and managed by an ``Integrated Accountability Chain'' similar to the 
Integrated Project Team, and industry should be engaged by such teams.
    Response: Successful acquisitions that deliver best value are 
dependent on the work of various participants ranging from the program 
office, to the acquisition personnel, to executives leading the 
process, to the policy and strategic office, legal counsel, and many 
more. This multidisciplinary team that collaborates and communicates 
throughout the process is collectively responsible for leveraging the 
Government's buying power.
    Comment: The respondent recommended that Government should create a 
cost focused culture by using rigorous business case analyses that 
assess total costs for decision making and use of share-in-savings.
    Response: OFPP recognizes that the Federal Government, in its 
procurement activity, should leverage its buying power to the maximum 
extent as well as achieve administrative efficiencies and cost savings. 
OMB memorandum M-19-13, Category Management: Making Smarter Use of 
Common Contract Solutions and Practices dated March 20, 2019, provides 
guidance on the use of category management to eliminate redundancies, 
increase efficiency, and deliver more value and savings from the 
Government's acquisition programs.
c. Enhanced Communication--Solicitation/Award
    Comment: A respondent stated that lack of discussions during the 
solicitation phase can cause cost increases and program performance 
issues and recommended that more conversations, webinars, question/
answer sessions be conducted during the proposal response phase.
    Response: A well-planned solicitation process is a valuable 
opportunity for agency acquisition personnel and potential vendors to 
interact and exchange information on the procurement. Industry days, as 
well as presolicitation and preproposal conferences, directly benefit 
the government by promoting a common understanding of the procurement 
requirements, the solicitation terms and conditions, and the evaluation 
criteria. Agency acquisition personnel are encouraged, when 
appropriate, to use interactive web-based technology to expand the 
reach of the exchange, such as a live webinar with streaming video to 
immediately address questions. Agency acquisition personnel are 
encouraged to combine such an approach with additional meetings 
available to all potential vendors to make solicitation engagements 
more useful, especially for large, complex requirements.
    Comment: A respondent stated that Government acquisition personnel 
use more innovative solicitation techniques including open-ended 
solicitation methods that allow industry to provide alternative 
solutions, using Statement of Objective as default solicitation method, 
and disclosing the weights of all evaluation factors. Another 
respondent noted that FAR 15.206 already permits amending the 
solicitation to change the evaluation criteria, when the solicitation 
no longer meets the Government's needs.
    Response: Agency acquisition workforce is encouraged to use the 
broad range of FAR techniques to pursue innovative techniques 
throughout the acquisition process, including the solicitation phase.
    Comment: A respondent stated that information on Federal Business 
Opportunities (FBO) is not up to date, is not being updated by 
Government officials, and many Government platforms are antiquated. The 
respondent also stated that it is difficult to make contact with 
Government contracting officers when an offeror has a question 
regarding the status of a solicitation.
    Response: The Federal Business Opportunities site has been moved to 
the System for Award Management and is now known as Contract 
Opportunities.
d. Enhanced Communication--Post Award
    Comment: A respondent stated that post award continued 
communication enables mitigation of disputes, enables course 
correction, and enhances past performance information. The respondent 
recommended that post award ``kick-off'' meetings be required between 
key Government personnel and the incoming contractor to ensure common 
understanding of requirements and expectations of contract transition 
and execution.
    Response: A post-award orientation, also known as a ``kick-off 
meeting,'' enables both acquisition personnel and contractor to have a 
complete understanding of their roles and responsibilities. This post-
award orientation aids both Government and contractor personnel to (1) 
achieve a clear and mutual understanding of all contract requirements, 
and (2) identify and resolve potential problems. When deciding whether 
post-award orientation is necessary, and if so, what form it will take, 
the agency acquisition personnel must consider factors such as type, 
value, and complexity of the contract; length of the planned production 
cycle; complexity and acquisition history of the product or service, 
and complex financing arrangements.
    Comment: A respondent stated that thorough past performance 
evaluations be required with a full-scale utilization of the Contractor 
Performance Assessment Reporting System (CPARS).
    Response: In accordance with FAR subpart 42.15, Contractor 
Performance Information, agencies are responsible for recording and 
maintaining contractor past performance information, including relevant 
ratings and supporting narratives. Assessments of a contractor's 
performance and contractor adherence to Federal rules and regulations 
are

[[Page 73907]]

critical to informing source selection and award decisions and ensuring 
the government builds relationships with high-performing suppliers. 
OFPP concurs that improving the collection and use of this information 
will increase agencies' ability to deliver better outcomes and increase 
productivity. OFPP has worked and will continue to work with agency 
Chief Acquisition Officers (CAOs) and Senior Procurement Executives 
(SPEs) to improve the value of contractor performance assessments and 
increase the transparency of data about contractor integrity.
    Comment: A respondent stated that post-award debriefings should be 
required to contain all information that would otherwise be releasable 
in the course of a legal discovery process, including a detailed 
description of how the offeror was rated in each of the evaluation 
criteria.
    Response: The current FAR contains a satisfactory description of 
the information to be disclosed, at FAR 15.506(d). In January 2017, 
OFPP released general guidance and best practices on debriefings via 
the ``myth-busting'' memorandum ``Myth-busting 3--Further Improving 
Industry Communication with Effective Debriefing.'' As stated in the 
memorandum, ``the debriefing is meant to provide a thorough explanation 
of the basis for the award'' and should comply with the requirements in 
accordance with FAR 15.506, including an explanation of deficiencies 
and strengths of offeror proposal; ratings of debriefed offeror's 
proposal and successful offeror's proposal; past performance ratings of 
the offeror; overall general ranking of proposals when any ranking was 
developed by the agency during the source selection; and reasonable 
responses to relevant questions.
    Comment: A respondent stated that continued, consistent 
communication is needed after an award has been announced. The 
respondent cited instances where respondent requested post-award 
debriefings and level of response from contracting officers varied from 
responsive to no response.
    Response: FAR 15.506, Post-award debriefing of offerors provides 
for the timely debriefing of offerors as well as the information a 
contracting officer is required to include when a timely request for 
debriefing is received. In January 2017, OFPP released general guidance 
and best practices on debriefings via the ``myth-busting'' memorandum 
``Improving Industry Communication with Effective Debriefing'' which 
includes guidance on promptly responding to requests for debriefings.
    Comment: A respondent recommended that the Government institute a 
``360-degree'' assessment of the acquisition process. The respondent 
stated that the OFPP ``Acquisition 360'' assessment only applies to a 
limited number of agency acquisitions and only focuses on the pre-award 
process.
    Response: The final rule for FAR Case 2017-014, Use of Acquisition 
360 to Encourage Vendor Feedback, will encourage the use of a 
standardized survey instrument to facilitate feedback from industry on 
their experience with the Federal marketplace.
e. Communication Inhibitors
    Comment: Several respondents identified that FAR 15.201, which 
addresses exchanges with industry before receipt of proposals could be 
further revised for clarification regarding presolicitation and 
postsolicitation communication, protecting submitted industry 
information, and providing scenarios on how acquisition personnel may 
engage with industry.
    Response: OFPP has identified improved communication with industry 
as a core element for driving better return from each dollar spent on 
acquisitions. To maximize the return on its acquisition investment and 
to ensure access to high-quality solutions, the acquisition workforce 
must ensure it conducts productive interactions with its industry 
partners. OFPP, in consultation with the Councils, will continue to 
evaluate the relevant FAR sections to ensure clear and accurate 
information.
    Comment: Several respondents identified that FAR 15.306 which 
addresses exchanges with offerors after receipt of proposals could be 
further revised and clarified with definitions. Some respondents stated 
that the section should be revised to allow communication to better 
understand proposals prior to establishing a competitive range and/or 
prior to contract award. Several respondents identified additional FAR 
sections that could be further revised for clarification (including FAR 
part 3, part 10, 15.307, 15.505, 15.506). Several respondents stated 
that Government agencies should be more explicit about industry 
communication rules. A respondent stated that further public feedback 
and input is needed as such changes to the FAR may have unintended 
consequences.
    Response: Improved communication with industry is a core element 
for driving better return from each dollar spent on acquisitions. To 
maximize the return on its acquisition investment and to ensure access 
to high-quality solutions, the acquisition workforce must ensure it 
conducts productive interactions with its industry partners and 
maximizes the guidance and instructions provided in the FAR. OFPP, in 
consultation with the Councils, will continue to evaluate the relevant 
FAR sections to ensure clear and accurate information. The Councils 
will carefully consider whether another FAR case is necessary to 
expound on communication beyond what is included in this FAR case.
f. Encourage/Require Discussions
    Comment: A respondent supported that encouraging or requiring 
discussions after establishing the competitive range could be 
beneficial to the procurement process to the extent that doing so would 
not further impede the procurement process or create unequal 
discussions. Another respondent supported the encouraging or requiring 
of discussions for contracts valued at twenty million dollars and 
above. Other respondents stated that encouraging or requiring 
discussions after establishing the competitive range could be 
beneficial and this decision should be based on complexity of the 
contract.
    Response: While agencies do not have the resources, and are not 
required, to meet with every vendor at every step of the acquisition 
process, information gathered from industry sources plays an invaluable 
role in the acquisition process. Industry partners are often the best 
source of information, so productive interactions between Federal 
agencies and the private sector are encouraged to ensure that the 
Government clearly understands the marketplace and can award a contract 
or order for an effective solution at a reasonable price. The Federal 
Government's ability to achieve successful program outcomes, 
effectively and efficiently, depends upon agencies establishing 
effective strategies for industry engagement and supporting those 
strategies with senior-level commitment.
    Comment: A respondent stated that imposition of a communication 
requirement on all contracts may unnecessarily slow the acquisition 
process. A respondent stated that further steps should be taken to 
address contract review processes for lower cost contracts.
    Response: While discussions may add time to the acquisition 
schedule, the contracting officer should make a thoughtful decision as 
to whether to

[[Page 73908]]

conduct discussions and, if so, what the scope and extent of 
discussions required should be. Schedule pressures should generally not 
be the primary, or even a strong, driver in the contracting officer's 
decision on whether or not to hold discussions. One consideration the 
contracting officer should take into account is that conducting robust 
presolicitation communications with industry may actually minimize the 
need for discussions and result in a better technical solution and 
improved contract performance. Other considerations include the 
complexity of the procurement, and the history of change orders on 
previous or related contracts that were due to lack of a clear 
understanding of the requirements, and contract terms and conditions by 
the parties.
9. Issues Outside the Scope of the Rule
    Comment: A respondent commented that the rule should clarify that 
professional conference attendance is authorized so industry and 
Government dialogue can take place. A respondent encouraged Government 
to host procurement-related training conferences and tradeshows and 
have Government employees attend those events.
    Response: Government acquisition personnel host and or attend 
professional conferences consistent with existing laws and regulations 
and in accordance with agency procedures. The respondent's suggested 
changes are outside the scope of this case.
    Comment: A respondent stated that the rule should encourage the 
workforce to use the flexibilities in FAR 1.102(d) and/or discourage 
officials from issuing guidance that stifles innovation.
    Response: The rule encourages communication between Government 
acquisition personnel and industry. The respondent is suggesting 
changes to FAR 1.102(d) concerning the use of acquisition initiatives; 
the suggested changes are outside the scope of this case.
    Comment: A respondent commented that the rule should clarify that 
professional conference attendance is authorized so industry and 
Government dialogue can take place.
    Response: Government acquisition personnel attend professional 
conferences consistent with existing laws and regulations and in 
accordance with agency procedures. The respondent's suggested change is 
outside the scope of this case.
    Comment: A respondent advocated that agencies should be required to 
create and report on metrics to indicate progress towards strategic 
objectives.
    Response: The respondent's suggestion is outside the scope of the 
case.
    Comment: A respondent recommended mandatory collection of data on 
all protests filed and resolved by agencies, including data on 
evaluation technique and contract type. The respondent recommended that 
Government agencies or components form a protest review committee 
comprised exclusively of Government legal and contracting experts to 
perform an independent review of the protest record and oversee any 
corrective action.
    Response: Protest processes and procedures are described in the 
FAR. Agencies may supplement these processes, as necessary and proper. 
The remainder of the comment is outside the scope of this case.
    Comment: A respondent pointed out that in bill H.R. 1735, the 
National Defense Authorization Act appears to have been vetoed by the 
President on October 2, 2016, and does not see any action to override 
the veto. The respondent questioned whether it is appropriate to issue 
regulations in anticipation of a veto override.
    Response: The President signed into law S. 1356, Public Law 114-92, 
the ``National Defense Authorization Act for Fiscal Year 2016'', on 
November 25, 2015, that contains Sec. 887 on which the rule is based.
    Comment: A respondent commented that the FAR Council, Defense 
Acquisition Regulations System (DARS), Defense Procurement and 
Acquisition Policy (DPAP) circumvent the Small Business Act and 
Organizational Conflicts of Interest. This proposed illegal change to 
the Federal Acquisition Regulations should be scrapped.
    Response: This comment is outside the scope of the current rule.
    Comment: A respondent provided statements on the West Virginia 
House Bill #2339; that it may impact relations with the coal industry. 
The bill declares that when coal is mined and used in West Virginia, 
coal mines do not have to be permitted by the Environmental Protection 
Agency.
    Response: This comment is outside the scope of the current rule.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Products, Including Commercially 
Available Off-the-Shelf (COTS) Items, or for Commercial Services

    This final rule does not create any new provisions or clauses, nor 
does it change the applicability of any existing provisions or clauses 
included in solicitations and contracts valued at or below the SAT, or 
for commercial products, including COTS items, or for commercial 
services.

IV. Expected Impact of the Rule

    The rule is expected to benefit both the Government and industry by 
encouraging more constructive communication during the Government's 
market research efforts.

V. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993.

VI. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    This rule implements section 887 of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92), 
which provides that agency acquisition personnel are permitted and 
encouraged to engage in responsible and constructive exchanges with 
industry. The objective of the rule is to encourage Government 
acquisition personnel to communicate with industry to determine the 
capabilities available in the marketplace in a manner that complies 
with existing laws and regulation.
    There were no significant issues raised by the public in 
response to the Initial

[[Page 73909]]

Regulatory Flexibility Analysis provided in the proposed rule.
    DoD, GSA, and NASA do not expect this rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601-612, et seq. 
Data obtained from the Federal Procurement Data System for FY 2019 
through 2021, indicates that an average of 2,559,356 new awards were 
awarded to an average of 61,797 small entities annually.
    This rule does not impose any new reporting, recordkeeping or 
other compliance requirements.
    There are no known alternative approaches to the rule that would 
accomplish the objectives of the statute.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of 
the Small Business Administration.

VIII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 48 CFR Part 1

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 1 as set forth 
below:

PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

0
1. The authority citation for 48 CFR part 1 continues to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C. 
20113.


0
2. Amend section 1.102-2 by--
0
a. Revising paragraph (a)(4);
0
b. Redesignating paragraphs (a)(5) through (7) as paragraphs (a)(6) 
through (8), and
0
c. Adding a new paragraph (a)(5).
    The revision and addition read as follows:


1.102-2  Performance standards.

    (a) * * *
    (4) 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.
    (5) The Government will maximize its use of commercial products and 
commercial services in meeting Government requirements.
* * * * *
[FR Doc. 2022-25959 Filed 11-30-22; 8:45 am]
BILLING CODE 6820-EP-P