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Proposed Rule: Opening the Dialogue for Government and Industry to Play Friendly

On November 29, 2016, the Department of Defense, General Services Administration, and National Aeronautics and Space Administration proposed an amendment to the Federal Acquisition Regulation (“FAR”). The purpose of this amendment is to clear misconceptions regarding the responsibilities of communication between government and industry during the acquisition process. By adding more explicit language to the FAR, the agencies involved hope to create more effective communication between government and industry.

So what is the potential impact on regulation?

FAR part 1.102-2 dictates the “performance standards” placed on private industry in the acquisition process. This rule proposes to amend FAR 1.102-2(a)(4) of this section which currently states:

“The 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.”

The proposed revision would add to the current wording to clarify 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.

Beyond the addition to paragraph (a)(4), the amendment would also insert a new paragraph, 1.102-2(a)(5), stating:

“The Government will maximize its use of commercial products and services in meeting Government requirements.”

The proposed rule will address common misconceptions regarding the responsibilities of communication between government and industry in the acquisition process. Ideally this clarification will establish clear guidelines for future relationships between government and industry during the acquisition process, consequently leading to earlier and more frequent engagements with constructive outcomes.

The comment period for this proposed rule ends January 30, 2017. For a better understanding or additional insight on this proposed rule, contact one of Cherry Bekaert’s trusted GovCon advisors.

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