New rule does little to clarify communications between agencies and industry

A new final rule has done little to clarify regulations around how agencies can communicate with industry.

That’s according to a piece of analysis by the Venable law firm.

This latest effort to clarify how government and industry can communicate date back to the 2016 National Defense Authorization Act, which directed the Federal Acquisition Regulatory Council to create regulations making clear when acquisition personnel are allowed “and encouraged” to communicate 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,” the 2016 NDAA states.

The Venable team says that after several years of work and collecting industry feedback, the new final rule does not change any existing regulations.

They are onto something when looking at at Section A of the final rule, where the government summarizes “significant changes.”

Even the government admits the changes were not significant because of how it describes them as “minor.”

What is the big change?

“Commercial sector” has been changed to “industry.” The word "commercial" apparently is too narrow. The council added a reference to another FAR regulation to make clear that any communications apply to all of industry.

The posting of the final rule includes an analysis of the public comments, which for the most part reads like the FAR Council’s attempts to sidestep concerns and suggestions raised by those who weighed in.

For example, comments about the need for more communication training for acquisition officials was met with this response:

“Training for the federal acquisition workforce is developed and provided in according with agency procedures.”

The council does say it will examine the communication issues and address some of those in the future, which was a positive in Venable’s view.

A second positive that Venable points out is how the preamble of the rule confirms that Congress and the FAR Council want acquisition officials to communicate with industry.

Their advice to industry is to cite these parts of the rule if they run into resistance from government officials who do not want to engage.

Venable is also closely watching a case before the U.S. Supreme Court that involves the conviction of Louis Ciminelli on wire fraud charges. Ciminelli allegedly had language inserted into a New York state government contract that favored his company.

The firm's concern here is that if Ciminelli’s conviction is upheld, it would squash the practice of government consulting with industry before a solicitation is released.

“The case confirms that both government and industry need greater clarity regarding permissible communications during the procurement process,” Venable writes in its analysis.