Clearing Things Up? A Quick Look at the Proposed Plain Language in Contracting Act

In 2010, Congress passed the “Plain Writing Act,” which essentially requires that federal agency communications to the public must be in language that “the public can understand and use” and is “clear, concise, well-organized, and follows other best practices appropriate to the subject or field and intended audience.” In other words, the idea was that agencies should stop using so much jargon and legalese. However, this arguably didn’t apply to contract opportunity notices. Congress is now looking at making sure that omission changes with the proposed “Plain Language in Contracting” Act, at least with regards to small business set-asides. We explore this more in depth in this post.

It is worth looking a little more at the implementation of the Plain Writing Act to get a sense of what the Plain Language in Contracting Act would entail. Helpfully, the federal government even has a website devoted to the Plain Writing Act. There, it notes that executive departments and agencies must follow the Federal Plain Language Guidelines and OMB’s Guidance on Implementing the Plain Writing Act.  The Federal Plain Language Guidelines are really about what one might expect. Agencies are advised to ensure their writing is well suited to their audience, use word choice that avoids jargon and technical terms, and use concise wording.

On April 15, 2024, Representative Nick LaLota of New York introduced H.R. 7987, the “Plain Language in Contracting Act.” This proposed act states that its aim is “[t]o require plain language and the inclusion of key words in covered notices that are clear, concise, and accessible to small business concerns, and for other purposes.” While the bill itself is relatively short, it could make a substantial impact on government contracting for small business set asides.

The bill states: “Each covered notice shall, to the maximum extent practicable, include key words in the description of the covered notice such that a small business concern seeking contract opportunities using” “can easily identify and understand such covered notice.” Importantly, “covered notices” only refers to notices “pertaining to small business concerns published by a Federal agency on”

Basically, the idea is that the principles from the Plain Writing Act should apply to the government’s solicitations. This appears to apply to sources sought documents, solicitations themselves, and really anything else posted on for a given solicitation. Basically, Congress wants less jargony, clearer solicitations.

We think this proposed law isn’t a bad idea in itself, but there are some questions that it raises that need to be addressed. For starters, ironically, there is some ambiguity here. It is not clear what is meant by “notices pertaining to small business concerns.” Does this mean that it applies to all solicitations (as small businesses can bid on any solicitation they are otherwise qualified for) or just small-business and other set-asides? It seems reasonable to think the latter, but as it stands, it is not certain. It would clear things up tremendously to say “all solicitations” or “solicitations set-aside for small businesses or SBA socio-economic programs.”

The biggest question, however, is how will this be enforced? Will this be something where contractors can protest a solicitation for not being clearly written? A contractor already may protest a solicitation for having ambiguous terms or having terms that are so inscrutable that the contractor cannot properly bid. If contractors can assert a violation of the Plain Language in Contracting Act as a protest ground, this will likely open up the door to a lot of protests. Granted, we imagine that GAO would use its typical “reasonableness” standard in determining whether an agency properly used plain language, so it is doubtful that such would result in many successful protests.

Really, it appears that effective enforcement of the Plain Language in Contracting Act (if it is passed) is going to have to come internally. Agencies themselves will need to set up their own standards and review procedures and train their employees on utilizing plain language writing skills. The hope is that this will indeed get rid of lots of the ambiguities and other issues that sometimes plague federal procurements.

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