The Sequel to Mythbusters in Government Contracting – Another Step Forward

Last week, the Office of Management and Budget’s Office of Federal Procurement Policy (OMB/OFPP) issued the second memorandum designed to debunk misperceptions about what is and is not permitted in agency-industry communications about pending and future contracts.  This sequel memo focuses on correcting misunderstandings in industry; the first was directed at government.  Together, the memos continue to make the procurement system more transparent.  It is now up to agencies and companies to act in ways that deliver better results based on greater openness and information exchange.

The Federal Acquisition Regulations (FAR) have both beneficial and bureaucratic elements across a vast array of regulatory provisions.  A common belief held by government and industry is that the FAR has strict constraints on what meetings or discussions can occur during pending or future procurements.  A key element of the OMB 25-Point Plan for IT Reform was the issuance of new OMB guidance to set the record straight on key areas where agencies and companies can talk to each other early and often – but have not done so due to longstanding and erroneous beliefs to the contrary.

In February 2011, OMB released a the first part of this guidance:  “Mythbusters,” a memorandum directed primarily to agency contracting staff and stakeholders, informing them of the may ways that communications with industry could occur even in areas where longstanding perceptions held otherwise.   This memo has increased agency awareness of the permissibility and benefits of advanced communications in terms of making industry more aware of agency requirements, seeking input on those requirements, and developing better RFPs as a result; a number of agencies have taken practical steps to implement the guidance on specific procurements.  In addition, OMB has set up an internal government collaboration site for agency personnel to share best practices, called the “vendor engagement community of practice”

However, even if agencies can open the door wider, companies have to walk through the opening to make the benefits of transparency more real and tangible.  That is why last week’s release of “Mythbusters 2” -- the OMB sequel guidance -- may have a greater long term impact.  Industry does not always understand what they can and can’t do, and is often reticent to provide too much information to agencies for fear of that information becoming part of the public record.  The OMB memo, signed by OFPP Acting Administrator Lesley Field, contains a list of common misunderstandings, and corrects the understood record on a number of key acquisition issues for contractors, for example:

• Agencies value early input into an RFP, and this input will not create a conflict of interest if it becomes part of the RFP (so long as the company is not explicitly being asked to develop requirements)
• Information shared in one-one meetings between a company and an agency does not need to be released – it can be protected as confidential under the Freedom of Information Act (FOIA), supplemented by company-agency non-disclosure agreements as needed.
• Agencies can share information about contractors or pricing with each other, to reduce burden on the system and eliminate redundant collection of data.

There are several other useful criteria in the OMB memo.  Even though it is written to agencies – OMB generally does not have authority to send guidance to the private sector directly via memorandum without going through rulemaking -- contractors would do well to read the memo and respond accordingly.  Combined with the first in the series, Mythbusters 2 could lead to new acquisitions that benefit agencies, companies, and ultimately citizens who gain from a better and more transparent system overall.

Whether OMB will issue a third memo and make this a trilogy with “Mythbusters 3” is, of course, to be determined!

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