[Federal Register: April 3, 2000 (Volume 65, Number 64)]
[Proposed Rules]
[Page 17581-17582]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr03ap00-16]
[[Page 17581]]
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Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Part 15
Federal Acquisition Regulation; Discussion Requirements; Proposed Rule
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAR Case 1999-022]
RIN 9000-AI68
Federal Acquisition Regulation; Discussion Requirements
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to clarify the scope of
discussions in competitive negotiated acquisitions.
DATES: Interested parties should submit comments in writing on or
before June 2, 2000, to be considered in the formulation of a final
rule.
ADDRESSES: Submit written comments to: General Services Administration,
FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to: farcase.1999-
022@gsa.gov
Please submit comments only and cite FAR case 1999-022 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 1999-022.
SUPPLEMENTARY INFORMATION:
A. Background
The proposed rule amends FAR 15.306(d) to clarify the Councils'
view that the contracting officer is not required to discuss every area
where the proposal could be improved.
The rule explains that discussions of offerors' proposals beyond
deficiencies and significant weaknesses are a matter of contracting
officer judgment. GAO has already interpreted the previous FAR language
consistently with this clarification in MRC Federal, Inc. (B-280969,
December 14, 1998) and Du & Associates (B-280283.3, December 22, 1998).
The rule encourages the contracting officer to discuss other aspects of
an offerors' proposal that have the potential, if changed, to
materially increase the value of the proposal to the Government (B-
280283.3). However, the rule makes clear that whether these discussions
would be worthwhile is within the contracting officer's discretion.
This rule was not subject to Office of Management and Budget 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 only clarifies existing policy that the scope and
extent of discussions are a matter of contracting officer judgment.
Therefore, we have not prepared an Initial Regulatory Flexibility
Analysis. We invite comments from small businesses and other interested
parties. The Councils will consider comments from small entities
concerning the affected FAR subpart 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 1999-022), 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 15
Government procurement.
Dated: March 29, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR part 15 be
amended as set forth below:
PART 15--CONTRACTING BY NEGOTIATION
1. The authority citation for 48 CFR part 15 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 15.306 by revising paragraph (d)(3); by
redesignating paragraph (d)(4) as (d)(5); and by adding a new paragraph
(d)(4) to read as follows:
15.306 Exchanges with offerors after receipt of proposals.
* * * * *
(d) * * *
(3) At a minimum, the contracting officer must, subject to
paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to or
discuss with each offeror still being considered for award significant
weaknesses, deficiencies, and adverse past performance information to
which the offeror has not yet had an opportunity to respond. The
contracting officer also is encouraged to discuss other aspects of the
offeror's proposal (such as cost, price, technical approach, past
performance, and terms and conditions) that could, in the opinion of
the contracting officer, be altered or explained to enhance materially
the proposal's potential for award. However, the contracting officer is
not required to discuss every area where the proposal could be
improved. The scope and extent of discussions are a matter of
contracting officer judgment.
(4) In discussing other aspects of the proposal, the Government
may, in situations where the solicitation stated that evaluation credit
would be given for technical solutions exceeding any mandatory
minimums, negotiate with offerors for increased performance beyond any
mandatory minimums, and the Government may suggest to offerors that
have exceeded any mandatory minimums (in ways that are not integral to
the design) that their proposals would be more competitive if the
excesses were removed and the offered price decreased.
* * * * *
[FR Doc. 00-8135 Filed 3-31-00; 8:45 am]
BILLING CODE 6820-EP-U