[Federal Register: December 18, 2001 (Volume 66, Number 243)]
[Rules and Regulations]
[Page 65368-65369]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18de01-17]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 2001-02; FAR Case 1999-022; Item V]
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: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed to amend the
Federal Acquisition Regulation (FAR) to clarify the scope of
discussions in competitive negotiated acquisitions.
DATES: Effective Date: February 19, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph DeStefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 2001-02, FAR case 1999-022.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR 15.306(d) to clarify 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.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 65 FR 17582, April 3, 2000. Five respondents submitted
comments on the proposed rule. The Councils considered all comments in
the development of the final rule.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 beyond the
stated minimums are a matter of contracting officer judgment. We did
not receive any comments regarding this determination as a result of
publication of the proposed rule in the Federal Register at 65 FR
17582, April 3, 2000.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the
[[Page 65369]]
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: December 5, 2001.
Al Matera,
Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR part 15 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 in paragraph (d)(1) by removing ``shall''
and inserting ``must'' in its place; by revising paragraph (d)(3); and
by redesignating paragraph (d)(4) as (d)(5) and adding a new (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,
deficiencies, significant weaknesses, 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 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. 01-30542 Filed 12-17-01; 8:45 am]
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