In Fiscal Year 2022, 1,595 bid protests were filed with GAO. While that seems like a large number, it pales in comparison to the number of federal contracts the federal government awards in a given year. On average, the government awards over 11 million contracts per year. That’s a lot of acquisitions that are not subject to any Feedback from outside the agency. But things might change now with the new rule that the FAR Council enacted. Today, we’ll take a look at what this entails.

Back in 2015, the Office of Federal Procurement Policy tested out a simple survey system for offerors to Provide Feedback on the acquisitions process. It was quickly realized that a lot of contractors were displeased with aspects of this process. But, prior to that point, there was no way for a contractor to provide feedback that would be reviewed by someone other than the contracting officer, who probably wouldn’t want to share any negative reviews with their higherups. The FAR Council (DoD, GSA, and NASA) realized what we just noted above: The vast majority of contracts are never protested, and any feedback could be kept under lock and key by the contracting officers. This is not conducive to a culture aimed towards improving the federal acquisitions process. As a result, the process then began to introduce a new survey program, called Acquisition 360, as a means of letting contractors provide feedback on the preaward and debriefing process.

Fast forward to today. The FAR Council has issued a final rule to get this feedback process started. With this system, offerors can comment on their experiences with the preaward process and the debriefing process. To clarify, this system is not for feedback on contract administration matters. The rule creates a new contract clause, FAR 52.201-1, Acquisition 360: Voluntary Survey. The clause will state:

(a) All actual and potential offerors are encouraged to provide feedback on the preaward and debriefing processes, as applicable. Feedback may be provided to agencies up to 45 days after award. The feedback is anonymous, unless the participant self-identifies in the survey. Actual and potential offerors can participate in the survey by selecting the following link: https://www.acquisition.gov/​360.

(b) The Contracting Officer will not review the information provided until after contract award and will not consider it in the award decision. The survey is voluntary and does not convey any protections, rights, or grounds for protest. It creates a way for actual and potential offerors to provide the Government constructive feedback about the preaward and debriefing processes, as applicable, used for a specific acquisition.

Unsurprisingly, the program was mostly welcomed by contractors. There is one big caveat, however: The rule itself will not be mandating that clause be included in any contracts. Commentors attempted to convince the FAR Council otherwise, and the response was:

While actionable feedback is desired, it is equally important that participants understand the survey is completely voluntary and will not impact the outcome of a specific acquisition. Adding language to further encourage survey use may confuse participants or compel a response out of fear that not responding would preclude the opportunity to participate in an acquisition.

We admittedly find this response puzzling. It is unclear how requiring contracting officers to provide contractors with information on how they can provide feedback in Acquisition 360 would be confusing or somehow give contractors the impression they must provide feedback. Indeed, the FAR Council’s statement seems to not even be responsive to the actual assertion: It reads as though the FAR Council believes the commentator was stating that contractors should be forced to provide feedback, rather than that contracting officers should be forced to make offerors aware of Acquisition 360 for the acquisition. It’s more likely that many agencies were not keen on the idea of telling contractors how they can critique their acquisitions.

That said, there is nothing preventing agencies themselves from requiring their contracting officers to include the clause. No doubt many agencies will take this well and require it of their officers. However, we suspect that some agencies will be reluctant to implement it, and so the FAR Council may want to circle back on this after some time has passed to see how much it is being utilized.

Additionally, offerors and the public should not expect access to any individual instance of feedback submitted through Acquisition 360. The information will be retained for internal government use, although the government is considering producing generalized data sets based on the combined survey responses. In any case, the FAR Council reasons that “the open-comment fields present the possibility of personal or private information being disclosed, if entered voluntarily by a participant.” As such, “review and redaction of comments would be necessary prior to publication to prevent the unintentional release of personal or private information.” This position is understandable, but at the same time, we think the government should consider balancing this out with its other aim of transparency when it reviews how this program is working.

Overall, we think the feedback system idea is good, and we think it can help improve the acquisition process. That said, we are concerned that agencies and contracting officers also have a substantial incentive to not utilize it: Why make potential critics aware of how they can provide criticism? However, we expect that this will be utilized by many agencies. After all, DoD implemented its extended debriefing process on its own, and that has helped improve its acquisitions. In any case, we think this is a step in the right direction. Contractors: If you want to provide feedback on the acquisition process for a solicitation you bid on, keep in mind Acquisition 360. The newest version of the system goes into effect on September 22, 2023.

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The post Watching the Watchman – New FAR Rule Opens Door to Further Feedback on Acquisition Process first appeared on SmallGovCon - Government Contracts Law Blog.