[Federal Register: February 4, 2003 (Volume 68, Number 23)]
[Proposed Rules]
[Page 5777-5779]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr04fe03-25]
[[Page 5777]]
-----------------------------------------------------------------------
Part V
Department of Defense
General Services Administration
National Aeronautics and Space Administration
-----------------------------------------------------------------------
48 CFR Part 52
Federal Acquisition Regulation; Debriefing--Competitive Acquisition;
Proposed Rule
[[Page 5778]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 52
[FAR Case 2002-014]
RIN 9000-AJ59
Federal Acquisition Regulation; Debriefing--Competitive
Acquisition
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement Sections 1014 and
1064 of the Federal Acquisition Streamlining Act of 1994 on
requirements for debriefing unsuccessful offerors under competitive
proposals.
DATES: Interested parties should submit comments in writing on or
before April 7, 2003 to be considered in the formulation of a final
rule.
ADDRESSES: Submit written comments to--General Services Administration,
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to--farcase.2002-
014@gsa.gov. Please submit comments only and cite FAR case 2002-014 in
all correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)
501-1758. Please cite FAR case 2002-014.
SUPPLEMENTARY INFORMATION:
A. Background
Sections 1014 and 1064 of the Federal Acquisition Streamlining Act
of 1994 amended 10 U.S.C. 2305(b) and 41 U.S.C. 253b, respectively, to
include requirements for debriefing unsuccessful offerors under
competitive proposals. Specifically, 10 U.S.C. 2305(b)(5)(D) and 41
U.S.C. 253b(e)(4) require each solicitation for competitive proposals
to include a statement that prescribes minimal information that shall
be disclosed in postaward debriefings. In addition to the
aforementioned minimal statutory disclosure information requirement,
FAR 15.506(d) added the following required disclosure information:
1. Unit price information, if applicable, of the successful and
debriefed offerors as an element of the statutory requirement to
disclose the overall evaluated cost or price; and
2. Past performance information on the debriefed offeror.
Some of the requirements were incorporated into the clause at FAR
52.215-1, Instructions to Offerors--Competitive Acquisitions, but the
notification for debriefings was overlooked during the drafting of the
clause at 52.212-1, Instruction to Offerors--Commercial Items. The rule
amends FAR 52.212-1 and 52.215-1 to implement the statutory requirement
and the additional FAR past performance requirement by listing all the
prescribed minimal information that shall be disclosed in postaward
debriefings.
The unit price information, if applicable, on the debriefed and
successful offerors was intentionally not included. As a result of
recent court cases, especially MCI WorldCom v. GSA, 163 F. Supp. 2d 28,
the treatment of unit prices under exemption no. 4 of the Freedom of
Information Act (5 U.S.C. 552(b)(3)) is in a state of flux which may
cause a revision to FAR 15.503(b)(1)(iv) to clarify the release of unit
prices. The requirements are addressed in FAR 15.506(d) and FAR 12.203.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule primarily clarifies language pertaining to disclosure
of information in postaward debriefings currently authorized by statute
and does not change existing policy. An Initial Regulatory Flexibility
Analysis has, therefore, not been performed. We invite comments from
small businesses and other interested parties. The Councils will
consider comments from small entities concerning the affected FAR part
52 in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 601, et seq. (FAR case
2002-014), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: January 30, 2003.
Ralph De Stefano,
Acting Director, Acquisition Policy Division.
Therefore, DOD, GSA, and NASA propose amending 48 CFR part 52 as
set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR part 52 continues to read as
follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
2. Amend section 52.212-1 by revising the date of the provision;
and adding paragraph (k) to read as follows:
52.212-1 Instructions to Offerors--Commercial Items.
* * * * *
Instructions To Offerors--Commercial Items (Date)
* * * * *
(k) Debriefing. If a postaward debriefing is given to requesting
offerors, the Government shall disclose the following information,
if applicable:
(1) The agency's evaluation of the significant weak or deficient
factors in the debriefed offeror's offer;
(2) The overall evaluated cost or price and technical rating of
the successful and the debriefed offeror and past performance
information on the debriefed offeror;
(3) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection;
(4) A summary of the rationale for award;
(5) For acquisitions of commercial items, the make and model of
the item to be delivered by the successful offeror; and
(6) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source-selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the agency.
(End of provision)
3. Amend section 52.215-1 by revising the date of the provision and
paragraph (f)(11) to read as follows:
52.215-1 Instructions to Offerors--Competitive Acquisition.
* * * * *
[[Page 5779]]
Instructions To Offerors--Competitive Acquisition (Date)
* * * * *
(f) * * *
(11) If a postaward debriefing is given to requesting offerors,
the Government shall disclose the following information, if
applicable:
(i) The agency's evaluation of the significant weak or deficient
factors in the debriefed offeror's offer;
(ii) The overall evaluated cost or price and technical rating of
the successful and the debriefed offeror and past performance
information on the debriefed offeror;
(iii) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection;
(iv) A summary of the rationale for award;
(v) For acquisitions of commercial items, the make and model of
the item to be delivered by the successful offeror; and
(vi) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source-selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the agency.
(End of provision)
* * * * *
[FR Doc. 03-2580 Filed 2-3-03; 8:45 am]