There's considerable confusion about when and under what circumstance the government can talk to companies about its requirements and upcoming procurements. But the law is clear: Up until release of a request for proposals, program managers, contracting officers and other feds are free to talk with the industry about their agencies' needs and future acquisitions.
Nothing need be off the table during such talks. By "nothing," we mean that legitimate topics of conversation include acquisition strategy, proposed contract types, terms and conditions, and acquisition planning schedules; the feasibility of a requirement, performance requirements, statements of work, and data requirements; and the suitability of the proposal instructions and evaluation criteria. The Federal Acquisition Regulations say so.
In fact, agencies must conduct market research before releasing a solicitation for anything worth more than the simplified acquisition threshold. Legitimate market research includes one-on-one discussions with contractors. Contrary to a common myth, the government doesn't have to meet with all possible offerors to meet with just one. There is no rule requiring the government to schedule meetings with your competitors to meet with you in the time leading up to a solicitation.
Only when the solicitation is released do things change. Exchanges of information don't stop, but they become more formal and regulated. Communication must go through the contracting officer and generally must be conducted in writing. It's at this point that the law known as the Procurement Integrity Act swings into action.
The act was written to ensure that government acquisition is unmarred by corruption. It came into being in the wake of a major late-1980s fraud scandal called Operation Ill Wind, the name of the FBI investigation that uncovered it. In the end, about 70 people were convicted of various crimes, including an assistant secretary of the Navy, a deputy assistant secretary of the Navy, and a deputy assistant secretary of the Air Force. Don't add your name to that list: The act prohibits knowingly obtaining the bid or proposal information of a competitor -- even if the source of that information was a federal employee.
Should someone in your company receive a competitor's bid data -- whether willingly or unwillingly -- the key is to minimize spreading the information. There must be policy preventing the recipient from showing the data to anyone else.
This can be counterintuitive, since in a typically hierarchical company, corporate policy probably mandates that evidence be forwarded up the corporate chain until it reaches someone with sufficient authority to deal with it on behalf of the entire company. But by sending, say, an email containing competitors' source selection data up a reporting chain, you make it seem more likely that the information was improperly used -- even if your company's ultimate response is a wholly ethical "We accidentally received this and don't want it." Competitor data during source evaluation is like plutonium -- if someone happens across it, isolate the contamination.
The Procurement Integrity Act also requires contracting officers communicate identically with all potential offerors after release of a solicitation. Post-solicitation communication is in writing only. Updates, changes or instructions from the contracting officer are released publicly in the form of an amendment to the solicitation. This "quiet period" is the likely source of the persistent myth that if the government talks to one company, it must also talk to its competitors -- which is not the case when the government is in the pre-solicitation phase conducting market research and writing requirements. The difference between pre-solicitation and post-solicitation is as different as day from night.
The preceding information was adapted and digested from the book "The Inside Guide to the Federal IT Market," published by Management Concepts Press. For more information, visit www.insideguidetofederalit.com.
Steve Charles is co-founder and executive vice president of immixGroup, which helps technology companies do business with the government. He is a frequent speaker and lecturer on technology and the federal procurement process. He can be reached at Steve_Charles@immixGroup.com.
PUBLISHED DEC. 13, 2013