Yes, contractors and agencies are allowed to talk. Steve Kelman has some thoughts.
The November Office of Management and Budget report on improving IT acquisition success and the TechAmerica industry panel on the same subject (which I co-chaired) both recommended that government be more open in communicating with potential vendors while major procurements are in development. In particular, they recommended, the government should be having more one-on-one communications with interested vendors prior to issuance of a request for proposals to get advice on what should be in the RFP, which is the only venue where vendors may share interesting information.
When I served on the TechAmerica panel, I was surprised about the degree of intensity among industry people regarding this issue. I think a good bit of this is psychological -- government's refusal to talk with vendors is seen as an expression of disrespect or dislike, a view that vendors are crooks and that the government gets contaminated by too much interaction with them. But this is about more than hurt feelings. To prepare a good procurement, the government needs to understand the marketplace and the subject area well -- what kinds of solutions are out there, what are issues others have run into trying to do similar things, etc. Vendors are a fantastic source of information about questions such as these -- assuming one doesn't rely on just one vendor for the information -- and it is crazy not to use this source. Indeed, an important reason to contract in the first place is that the vendor has insights about what the customer wants to buy that the customer doesn't have itself. OMB recognizes these truths.
Now, in the wake of the November OMB report, Dan Gordon, the administrator of the Office of Federal Procurement Policy, has issued a memo to senior agency procurement people, with the evocative title, "Myth-Busting: Addressing Misperceptions to Improve Communication with Industry During the Acquisition Process." The memo lists the "Top 10 Misconceptions and Facts," but the most important myth is the first one listed, the idea that it is not acceptable to have one-on-one meetings with industry while an acquisition is being planned.
As the memo notes, Part 15.201 of the Federal Acquisition Regulation -- based on a 1997 change to the regs that was my last act as OFPP administrator -- specifically authorizes such meetings. The memo states that the Office of Federal Procurement Policy will work with the Defense Acquisition University and the Federal Acquisition Institute to get these messages out in training, along with conducting sessions at the major conferences this year.
The effort to encourage government-vendor communication should be going further than the memo suggests, in my view. One big problem that often arises after contract award is unclear language in the original solicitation that leads to the two sides having different interpretations of what the government was asking for. To alleviate this problem early, the government should issue the draft RFP and ask industry to bring to the government's attention words, phrases, or ideas in the draft where in internal company discussions there was disagreement about what the government meant.
Second, the government should re-institute a technique used a few times a decade ago to give potential bidders a period of "due diligence," where they could kick the tires of the agency operation involved in the work for the contract to be bid, ask questions, and learn more to put them in a better position to bid intelligently and present new ideas. (This technique is particularly important for non-incumbents.) Finally, the government should incentivize presentation of valuable information in the pre-RFP stage by providing credit during proposal evaluation for company comments prior to the RFP that helped the government improve its solicitation.
Industry needs to change as well, as the TechAmerica report itself argued. There is nothing wrong with company business development people talking with agency folks, and indeed in sitting in on one-on-one meetings. But, frankly, the most useful information for the government will often come from industry technical and subject matter expert people, more than from the business development ones. These are the people who can better help the agency understand what's available in the marketplace. Industry needs to be sending these people to the one-on-one meetings, not just business development people.
Frankly, we had better government-industry communications in the late 1990's and the beginning of the millennium than we have had the last few years -- due to the 1997 changes in the FAR and a less adversarial government-industry relationship compared to what was to develop later in the wake of the politicization of contracting issues after the war in Iraq -- and it unfortunately didn't prevent bad RFP's and poor acquisition strategies for major IT projects. If we're going to run up this hill again -- which we most definitely should -- industry needs to do a better job providing government with valuable information as acquisitions are being planned, and the government needs to do a better job listening.