[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Rules and Regulations]
[Pages 42652-42657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19859]



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DEPARTMENT OF DEFENSE
48 CFR Parts 2, 4, 5, 6, 14, 15, 17, 19, 25, 36, 51 and 52

[FAC 90-31; FAR Case 94-701; Item II]
RIN 9000-AG39


Federal Acquisition Regulation; Contract Award Implementation

AGENCIES: Department of Defense (DOD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

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SUMMARY: This final rule is issued pursuant to the Federal Acquisition 
Streamlining Act of 1994 to (1) identify new Federal Procurement Data 
System reporting requirements, (2) expand the reasons for establishing 
or maintaining alternative sources of supplies or services, (3) allow 
acquisition of expert services to support litigation by other than full 
and open competition and provide an exception to synopsis requirements, 
(4) clarify procedures for award to a source identified in a statute, 
(5) clarify approval authority for use of other than full and open 
competition, (6) revise procedures for use of source selection 
evaluation factors in solicitations, for conducting written or oral 
discussions, and for providing postaward notices and debriefing to 
offerors, (7) require a determination that an option is likely to be 
exercised before providing for evaluation of sealed bid options, (8) 
allow nonprofit agencies for the blind or severely disabled to use 
Government supply sources in performing certain Javits-Wagner-O'Day 
contracts, and (9) make procedures for award without discussion the 
same for Department of Defense and civilian agencies. This regulatory 
action was subject to Office of Management and Budget review under 
Executive Order 12866, dated September 30, 1993.

EFFECTIVE DATE: October 1, 1995.

FOR FURTHER INFORMATION CONTACT:
Ms. Melissa Rider, Contract Award Team Leader, at (703) 614-1634 in 
reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-31, FAR case 94-701.

SUPPLEMENTARY INFORMATION:

A. Background

    The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355 
(the Act), provides authorities that streamline the acquisition process 
and minimize burdensome Government-unique requirements. Major changes 
that can be expected in the acquisition process as a result of the 
Act's implementation include changes in the areas of Commercial Item 
Acquisition, the Truth in Negotiations Act, and introduction of the 
Federal Acquisition Computer Network.
    This notice announces FAR revisions developed under FAR Case 94-
701, Contract Award Implementation, which implements the following 
sections of the Act:

--Sections 1002 and 1052 amend 10 U.S.C. 2304(b) and 41 U.S.C. 253(b) 
to--(1) Ensure the continuous availability of a reliable source of 
supply; (2) satisfy projected needs based on a history of high demand; 
and (3) satisfy a critical need for medical, safety, or emergency 
supplies, as reasons for establishing or maintaining alternative 
sources. (Implementation at FAR 6.202.)
--Sections 1003 and 1053 amend 10 U.S.C. 2304(f)(1)(B)(i) and 41 U.S.C. 
253(f)(1)(B)(i) to clarify the approval authority for use of other than 
full and open competition. (Implementation at FAR 6.304.)
--Sections 1005 and 1055 amend 10 U.S.C. 2304(c)(3) and 41 U.S.C. 
253(c) to add the acquisition of expert services for use in any 
litigation or dispute involving the Federal Government as an exception 
to use of full and open competition. (Implementation at FAR 6.302-3.) 
Section 1055 also amended 41 U.S.C. 416(c) and 15 U.S.C. 637(c) to 
provide an exception to the publication of notices in the Commerce 
Business Daily for acquisition of expert services. (Implementation at 
FAR 5.201, 5.202, 5.301, and 6.302-3.)
--Sections 1011 and 1061 amend 10 U.S.C. 2305(a) and 41 U.S.C. 253a and 
253b to (1) Make procedures for award of contracts without discussion 
comparable in Department of Defense and civilian agencies, (2) require 
solicitations for competitive proposals to include all significant 
factors and subfactors and whether they are more important, of equal 
importance or less important than cost or price, (3) permit agencies to 
disclose numerical weights assigned to evaluation factors at their 
discretion, and (4) allow award without discussion to other than the 
lowest overall cost offeror. (Implementation at FAR 15.406-5, 15.407, 
15.605, 15.610, and 52.215-16.)
--Sections 1012 and 1062 amend 10 U.S.C. 2305(a) and 41 U.S.C. 253a to 
require a determination that it is likely that an option will be 
exercised before providing for evaluation of prices of options in 
solicitations for contracts awarded using sealed bid procedures. 
(Implementation at FAR 17.202 and 17.208.)
--Sections 1013 and 1063 amend 10 U.S.C. 2305(b) and 41 U.S.C. 253b to 
require, within three days of contract award, notification to 
unsuccessful offerors that a contract has been awarded and to allow 
electronic transmission of the notice. (Implementation at FAR 2.101, 
14.408-1, 14.409-1, 15.1002, 15.1003, 25.405, and 36.304.)
--Sections 1014 and 1064 amend 10 U.S.C. 2305(b) and 41 U.S.C. 253b to 
(1) Allow offerors to request a debriefing within three days of receipt 
of notice of award and require agencies, to the maximum extent 
practicable, to conduct the debriefings within five days, and (2) 
specify minimum requirements for content of the debriefings. 
(Implementation at FAR 15.1001, 15.1004, 36.607, and 52.215-16.)
--Section 1555 amends 40 U.S.C. 481 to allow nonprofit agencies for the 
blind or severely disabled providing supplies or services under a 
Javitts-Wagner-O'Day Act contract to use Government supply sources in 
performing the contract. (Implementation at FAR 51.101 and 

[[Page 42653]]
51.102.) Other parts of Section 1555 are being implemented separately 
by GSA (see proposed rule of April 7, 1995, 60 FR 17764).
--Section 7203 amends 10 U.S.C. 2304 and 41 U.S.C. 253 to state 
Congressional policy regarding legislative requirements for award of a 
new contract to a specific non-Federal Government entity. 
(Implementation at FAR 6.302-5.)
--Section 10004 requires the Federal Procurement Data System to collect 
from contracts in excess of $25,000 data on awards to small and 
disadvantaged businesses using either set asides or full and open 
competition, awards to businesses owned and controlled by women, the 
number of offers received in response to a solicitation, task or 
delivery order contracts and contracts for the acquisition of 
commercial items. (Implementation at FAR 4.601.)

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 regulatory changes 
contained in the rule relate primarily to the content of solicitations, 
debriefings and notifications to offerors, internal Government 
procedures, and procedures which apply only to the acquisition of 
expert services for litigation or to decisions to maintain alternative 
sources of supply. The rule will increase the amount of pre-award and 
post-award information provided to the public, but will not have a 
significant economic impact.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which require the approval of the Office of 
Management and Budget under 44 U.S.C. 3501, et seq.

D. Public Comments

    Eighteen public comments were received in response to the proposed 
rule published in the Federal Register on January 9, 1995 (60 FR 2472). 
These comments were considered in formulation of this final rule.

List of Subjects in 48 CFR Parts 2, 4, 5, 6, 14, 15, 17, 19, 25, 
36, 51 and 52

    Government procurement.

    Dated: August 7, 1995.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal 
Acquisition Streamlining Act of 1994.

    Therefore, 48 CFR Chapter 1 is amended as set forth below:
    1. The authority citation for 48 CFR Parts 2, 4, 5, 6, 14, 15, 17, 
19, 25, 36, 51 and 52 continue to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 2--DEFINITIONS OF WORDS AND TERMS

    2. Section 2.101 is amended by adding, in alphabetical order, the 
definition Day to read as follows:


2.101  Definitions.

* * * * *
    Day means, unless otherwise specified, a calendar day.
* * * * *

PART 4--ADMINISTRATIVE MATTERS

    3. Section 4.601 is amended by redesignating existing paragraph (d) 
as (e); and adding a new paragraph (d) to read as follows:


4.601  Record requirements.

* * * * *
    (d) In addition to the information described in paragraphs (b) and 
(c) of this section, for procurements in excess of $25,000, agencies 
shall be able to access information on the following from the computer 
file:
    (1) Awards to small disadvantaged businesses using either set-
asides or full and open competition.
    (2) Awards to business concerns owned and controlled by women.
    (3) The number of offers received in response to a solicitation.
    (4) Task or delivery order contracts.
    (5) Contracts for the acquisition of commercial items.
* * * * *

PART 5--PUBLICIZING CONTRACT--ACTIONS

    4. Section 5.201 is amended by revising paragraph (a) to read as 
follows:


5.201  General.

    (a) As required by the Small Business Act (15 U.S.C. 637(e)) and 
the Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies 
shall furnish for publication in the Commerce Business Daily (CBD) 
notices of proposed contract actions as specified in paragraph (b) of 
this section.
* * * * *
    5. Section 5.202 is amended at the end of paragraph (a)(13) by 
removing the word ``or''; at the end of paragraph (a)(14) by removing 
the period and inserting ``; or'' in its place; and by adding paragraph 
(a)(15) to read as follows:


5.202  Exceptions.

* * * * *
    (a) * * *
    (15) The contract action is made under conditions described in 
6.302-3 with respect to the services of an expert to support the 
Federal Government in any current or anticipated litigation or dispute.
* * * * *
    6. Section 5.301 is amended at the end of paragraph (b)(6) by 
removing ``or''; at the end of paragraph (b)(7) by removing the period 
and inserting ``; or''; and by adding paragraph (b)(8) to read as 
follows:


5.301  General.

* * * * *
    (b) * * *
    (8) The award is for the services of an expert to support the 
Federal Government in any current or anticipated litigation or dispute 
pursuant to the exception to full and open competition authorized at 
6.302-3.
* * * * *


5.303  [Amended]

    7. Section 5.303 is amended in paragraph (b)(2) by removing the 
citation ``15.1001(c)'' and inserting ``15.1002(c)'' in its place.

PART 6--COMPETITION REQUIREMENTS

    8. Section 6.202 is amended by revising paragraph (a)(1); at the 
end of paragraph (a)(2) by removing ``or''; at the end of paragraph 
(a)(3) by removing the period and inserting a semicolon; and adding 
paragraphs (a)(4) through (a)(6) to read as follows:


6.202  Establishing or maintaining alternative sources.
    (a) * * *
    (1) Increase or maintain competition and likely result in reduced 
overall costs for the acquisition, or for any anticipated acquisition;
 * * * * *
    (4) Ensure the continuous availability of a reliable source of 
supplies or services;
    (5) Satisfy projected needs based on a history of high demand; or

[[Page 42654]]

    (6) Satisfy a critical need for medical, safety, or emergency 
supplies.
 * * * * *
    9. Section 6.302-3 is amended by revising the heading and paragraph 
(a)(2); and by adding paragraph (b)(3) to read as follows:


6.302-3  Industrial mobilization; engineering, developmental, or 
research capability; or expert services.

    (a) * * *
    (2) Full and open competition need not to be provided for when it 
is necessary to award the contract to a particular source or sources in 
order:
    (i) to maintain a facility, producer, manufacturer, or other 
supplier available for furnishing supplies or services in case of a 
national emergency or to achieve industrial mobilization,
    (ii) to establish or maintain an essential engineering, research, 
or other nonprofit institution or a federally funded research and 
development center, or
    (iii) to acquire the services of an expert for any current or 
anticipated litigation or dispute.
    (b) * * *
    (3) Use of the authority in paragraph (a)(2)(iii) of this section 
may be appropriate when it is necessary to acquire the services of 
either--
    (i) An expert to use, in any litigation or dispute (including any 
reasonably foreseeable litigation or dispute) involving the Government 
in any trial, hearing, or proceeding before any court, administrative 
tribunal, or agency, whether or not the expert is expected to testify. 
Examples of such services include, but are not limited to:
    (A) Assisting the Government in the analysis, presentation, or 
defense of any claim or request for adjustment to contract terms and 
conditions, whether asserted by a contractor or the Government, which 
is in litigation or dispute, or is anticipated to result in dispute or 
litigation before any court, administrative tribunal, or agency, or
    (B) Participating in any part of an alternative dispute resolution 
process, including but not limited to evaluators, fact finders, or 
witnesses, regardless of whether the expert is expected to testify; or
    (ii) A neutral person, e.g., mediators or arbitrators, to 
facilitate the resolution of issues in an alternative dispute 
resolution process.
 * * * * *
    10. Section 6.302-5 is amended by revising paragraph (c)(1) and 
adding paragraph (c)(3) to read as follows:


6.302-5  Authorized or required by statute.

 * * * * *
    (c) Limitations. (1) This authority shall not be used when a 
provision of law requires an agency to award a new contract to a 
specified non-Federal Government entity unless the provision of law 
specifically--
    (i) Identifies the entity involved;
    (ii) Refers to 10 U.S.C. 2304(j) for armed services acquisitions or 
section 303(h) of the Federal Property and Administrative Services Act 
of 1949 for civilian agency acquisitions; and
    (iii) States that award to that entity shall be made in 
contravention of the merit-based selection procedures in 10 U.S.C. 
2304(j) or section 303(h) of the Federal Property and Administrative 
Services Act, as appropriate. However, this limitation does not apply--
    (A) When the work provided for in the contract is a continuation of 
the work performed by the specified entity under a preceding contract; 
or
    (B) To any contract requiring the National Academy of Sciences to 
investigate, examine, or experiment upon any subject of science or art 
of significance to an executive agency and to report on those matters 
to the Congress or any agency of the Federal Government.
* * * * *
    (3) The authority in (a)(2)(ii) of this subsection may be used only 
for purchases of brand-name commercial items for resale through 
commissaries or other similar facilities. Ordinarily, these purchases 
will involve articles desired or preferred by customers of the selling 
activities (but see 6.301(d)).
    11. Section 6.304 is amended by revising paragraph (a)(2) to read 
as follows:


6.304  Approval of the justification.

    (a) * * *
    (2) For a proposed contract over $100,000 but not exceeding 
$1,000,000, by the competition advocate for the procuring activity 
designated pursuant to 6.501 or an official described in paragraph 
(a)(3) or (a)(4) of this section. This authority is not delegable.
* * * * *

PART 14--SEALED BIDDING

    12. Section 14.408-1 is amended by revising paragraphs (a)(1) and 
(d)(2) to read as follows:


14.408-1  General.

    (a) * * *
    (1) by written or electronic notice,* * *
* * * * *
    (d) * * *
    (2) Use of the Award portion of SF 33, SF 26, or SF 1447, does not 
preclude the additional use of informal documents, including telegrams 
or electronic transmissions, as notices of awards.
    13. Section 14.409-1 is revised to read as follows:


14.409-1  Award of unclassified contracts.

    (a)(1) The contracting officer shall as a minimum (subject to any 
restrictions in Subpart 9.4)--
    (i) Notify each unsuccessful bidder in writing or electronically 
within three days after contract award, that its bid was not accepted. 
``Day,'' for purposes of the notification process, means calendar day, 
except that the period will run until a day which is not a Saturday, 
Sunday, or legal holiday;
    (ii) Extend appreciation for the interest the unsuccessful bidder 
has shown in submitting a bid; and
    (iii) When award is made to other than a low bidder, state the 
reason for rejection in the notice to each of the unsuccessful low 
bidders.
    (2) For acquisitions subject to the Trade Agreements Act or the 
North American Free Trade Agreement (NAFTA) Implementation Act (see 
25.405(e)), agencies shall include in notices given unsuccessful 
bidders from designated or NAFTA countries--
    (i) The dollar amount of the successful bid; and
    (ii) The name and address of the successful bidder.
    (b) Information included in paragraph (a)(2) of this subsection 
shall be provided to any unsuccessful bidder upon request except when 
multiple awards have been made and furnishing information on the 
successful bids would require so much work as to interfere with normal 
operations of the contracting office. In such circumstances, only 
information concerning location of the abstract of offers need be 
given.
    (c) When a request is received concerning an unclassified 
invitation from an inquirer who is neither a bidder nor a 
representative of a bidder, the contracting officer should make every 
effort to furnish the names of successful bidders and, if requested, 
the prices at which awards were made. However, when such requests 
require so much work as to interfere with the normal operations of the 
contracting office, the inquirer will be advised where a copy of the 
abstract of offers may be seen.
    (d) Requests for records shall be governed by agency regulations 
implementing Subpart 24.2.


14.503-1  [Amended]

    14. Section 14.503-1 is amended at the end of paragraph (g) by 
removing the phrase ``(see 15.1003)'' and inserting ``(see 15.1004)'' 
in its place.

[[Page 42655]]


PART 15--CONTRACTING BY NEGOTIATION


15.406-5  [Amended]

    15. Section 15.406-5 is amended in paragraph (c) by inserting the 
word ``significant'' after the word ``all''; and by removing the phrase 
``(see 15.605(e) and (f)'' and inserting in its place ``(see 15.605(d) 
and (e)''.
    16. Section 15.407 is amended by revising paragraph (d)(4) to read 
as follows:


15.407  Solicitation provisions.

* * * * *
    (d) * * *
    (4) Insert in RFP's the provision at 52.215-16, Contract Award.
    (i) If the RFP is for construction, the contracting officer shall 
use the provision with its Alternate I. If awards are to be made 
without discussions, also use Alternate II.
    (ii) If the contracting officer intends to evaluate offers and make 
award without discussions, use the basic provision with its Alternate 
II.
* * * * *


15.412  [Amended]

    17. Section 15.412 is amended in the second sentence of paragraph 
(d) by removing the citation ``15.1001(c)(1)'' and inserting 
``15.1002(c)(1)'' in its place.
    18. Section 15.605 is amended by revising the heading, and 
paragraphs (a), (b)(1) introductory text, (b)(1)(iii), (b)(2), and (d) 
to read as follows:


15.605  Evaluation factors and subfactors.

    (a) The factors and subfactors that will be considered in 
evaluating proposals shall be tailored to each acquisition and shall 
include only those factors that will have an impact on the source 
selection decision.
    (b)(1) The evaluation factors and subfactors that apply to an 
acquisition and the relative importance of those factors and subfactors 
are within the broad discretion of agency acquisition officials except 
that--
* * * * *
    (iii) Quality shall be addressed in every source selection through 
inclusion in one or more of the non-cost evaluation factors or 
subfactors, such as past performance, technical excellence, management 
capability, personnel qualifications, prior experience, and schedule 
compliance.
* * * * *
    (2) Any other relevant factors or subfactors, such as cost realism, 
may also be included.
* * * * *
    (d)(1) The solicitation should be structured to provide for the 
selection of the source whose proposal offers the greatest value to the 
Government in terms of performance, risk management, cost or price, and 
other factors. At a minimum, the solicitation shall clearly state the 
significant evaluation factors, such as cost or price, cost or price-
related factors, past performance and other non-cost or non-price-
related factors, and any significant subfactors, that will be 
considered in making the source selection, and their relative 
importance (see 15.406-5(c)). The solicitation shall inform offerors of 
minimum requirements that apply to particular evaluation factors and 
significant subfactors. Further, the solicitation shall state whether 
all evaluation factors other than cost or price, when combined, are--
    (i) Significantly more important than cost or price;
    (ii) Approximately equal to cost or price; or
    (iii) Significantly less important than cost or price.
    (2) The solicitation may elaborate on the relative importance of 
factors and subfactors at the discretion of the contracting officer. 
Agencies may elect to assign numerical weights to evaluation factors 
and employ those weights when evaluating proposals. Numerical weights 
need not be disclosed in solicitations; however, nothing precludes an 
agency from disclosing the weights on a case-by-case basis. The 
solicitation may state that award will be made to the offeror that 
meets the solicitation's minimum criteria for acceptable award at the 
lowest cost or price.
* * * * *


15.609  [Amended]

    19. Section 15.609 is amended in paragraph (c) by removing ``(see 
15.1001(b))'' and inserting ``(see 15.1002(b))'' in its place.
    20. Section 15.610 is amended by revising paragraphs (a) and (b) to 
read as follows:


15.610  Written or oral discussion.

    (a) The requirement in paragraph (b) of this section for written or 
oral discussion need not be applied in acquisitions--
    (1) In which prices are fixed by law or regulation;
    (2) Of the set-aside portion of a partial set-aside; or
    (3) In which the solicitation notified all offerors that the 
Government intends to evaluate proposals and make award without 
discussion, unless the contracting officer determines that discussions 
(other than communications conducted for the purpose of minor 
clarification) are considered necessary (see 15.407(d)(4)). Once the 
Government states its intent to award without discussion, the rationale 
for reversal of this decision shall be documented in the contract file.
    (b) Except as provided in paragraph (a) of this section, the 
contracting officer shall conduct written or oral discussions with all 
responsible offerors who submit proposals within the competitive range. 
The content and extent of the discussions is a matter of the 
contracting officer's judgment, based on the particular facts of each 
acquisition (but see paragraphs (c) and (d) of this section).
* * * * *
    21. Section 15.612 is amended by revising paragraph (f) to read as 
follows:


15.612  Formal source selection.

* * * * *
    (f) Postaward notices and debriefings. See 15.1002(c) and 15.1004.


15.1001 through 15.1005  [Redesignated as 15.1002 through 15.1006]

    22. Sections 15.1001 through 15.1005 are redesignated as 15.1002 
through 15.1006, respectively; and a new 15.1001 is added to read as 
follows:


15.1001  General.

    This subpart applies to the use of competitive proposals, as 
described in 6.102(b), and a combination of competitive procedures, as 
described in 6.102(c). To the extent practicable, however, the 
procedures and intent of this subpart, with reasonable modification, 
should be followed for acquisitions described in 6.102(d): broad agency 
announcements, small business innovation research contracts, and 
architect-engineer contracts. However, they do not apply to multiple 
award schedules, as described in 6.102(d)(3).
    23. Newly designated section 15.1002 is amended by revising 
paragraph (a), and the introductory text of paragraph (b)(2); by 
removing paragraph (c)(2) and redesignating paragraph (c)(3) as (c)(2); 
and by amending the newly designated paragraph (c)(2) by removing 
``15.1001(c)(1)(i)'' and inserting ``15.1002(c)(1)(i)''. The revised 
text reads as follows:


15.1002  Notifications to unsuccessful offerors.

    (a) General. Within three days after the date of contract award, 
the contracting officer shall notify, in writing or electronically, 
each offeror whose proposal is determined to be 

[[Page 42656]]
unacceptable or whose offer is not selected for award. ``Day,'' for 
purposes of the notification process, means calendar day, except that 
the period will run until a day which is not a Saturday, Sunday, or 
legal holiday.
    (b) * * *
    (2) In a small business set-aside (see Subpart 19.5), upon 
completion of negotiations and determinations of responsibility, but 
prior to award, the contracting officer shall notify each unsuccessful 
offeror in writing or electronically of the name and location of the 
apparent successful offeror. The notice shall also state that:
* * * * *
    24. Newly designated section 15.1003 is amended by revising the 
first sentence to read as follows:


15.1003  Notification to successful offeror.

    The contracting officer shall award a contract with reasonable 
promptness to the successful offeror (selected in accordance with 
15.611(d)) by transmitting written or electronic notice of the award to 
that offeror (but see 15.608(b)). * * *
    25. Newly designated section 15.1004 is revised to read as follows:


15.1004  Debriefing of offerors.

    (a) When a contract is awarded on the basis of competitive 
proposals, an offeror, upon its written request received by the agency 
within three days after the date on which that offeror has received 
notice of contract award, shall be debriefed and furnished the basis 
for the selection decision and contract award. When practicable, 
debriefing requests received more than three days after the offeror 
receives notice of contract award shall be accommodated. However, 
accommodating such untimely debriefing requests does not extend the 
time within which suspension of performance can be required, as this 
accommodation is not a ``required debriefing'' as described in FAR Part 
33. To the maximum extent practicable, the debriefing should occur 
within five days after receipt of the written request. ``Day,'' for 
purposes of the debriefing process, means calendar day, except that the 
period will run until a day which is not a Saturday, Sunday, or legal 
holiday.
    (b) Debriefings of successful and unsuccessful offerors may be done 
orally, in writing, by electronic means, or any other method acceptable 
to the contracting officer.
    (c) The contracting officer should normally chair any debriefing 
session held. Individuals actually responsible for the evaluations 
shall provide support. If the contracting officer is unavailable, 
another agency representative may be designated by the contracting 
officer on a case-by-case basis, with the approval of an individual a 
level above the contracting officer.
    (d) At a minimum, the debriefing information shall include--
    (1) The Government's evaluation of the significant weaknesses or 
deficiencies in the offeror's proposal, if applicable;
    (2) The overall evaluated cost or price and technical rating, if 
applicable, of the successful offeror and the debriefed offeror;
    (3) The overall ranking of all offerors when any ranking was 
developed by the agency during the source selection;
    (4) A summary of the rationale for award;
    (5) For acquisitions of commercial end items, the make and model of 
the item to be delivered by the successful offeror; and
    (6) Reasonable responses to relevant questions about whether source 
selection procedures contained in the solicitation, applicable 
regulations, and other applicable authorities were followed.
    (e) The debriefing shall not include point-by-point comparisons of 
the debriefed offeror's proposal with those of other offerors. 
Moreover, debriefing shall not reveal any information exempt from 
release under the Freedom of Information Act including--
    (1) Trade secrets;
    (2) Privileged or confidential manufacturing processes and 
techniques;
    (3) Commercial and financial information that is privileged or 
confidential, including cost breakdowns, profit, indirect cost rates, 
and similar information; and
    (4) The names of individuals providing reference information about 
an offeror's past performance.
    (f) The contracting officer shall include an official summary of 
the debriefing in the contract file.
    (g) If, within one year of contract award, a protest causes the 
agency to issue either a new solicitation or a new request for best and 
final offers on the protested contract award, the agency shall make 
available to all prospective offerors--
    (1) Information provided in any debriefings conducted on the 
original award about the successful offeror's proposal; and
    (2) Other nonproprietary information that would have been provided 
to the original offerors.

PART 17--SPECIAL CONTRACTING METHODS

    26. Section 17.202 is amended by revising paragraph (a); and at the 
end of paragraph (b)(1)(ii) by removing ``; or'' and inserting a period 
in its place. The revised text reads as follows:


17.202  Use of options.

    (a) Subject to the limitations of paragraphs (b) and (c) of this 
section, for both sealed bidding and contracting by negotiation, the 
contracting officer may include options in contracts when it is in the 
Government's interest. When using sealed bidding, the contracting 
officer shall make a written determination that there is a reasonable 
likelihood that the options will be exercised before including the 
provision at 52.217-5, Evaluation of Options, in the solicitation. (See 
17.207(f) with regard to the exercise of options.)
* * * * *
    27. Section 17.208 is amended by revising paragraphs (b) and (c)(4) 
to read as follows:


17.208  Solicitation provisions and contract clauses.

* * * * *
    (b) The contracting officer shall insert a provision substantially 
the same as the provision at 52.217-4, Evaluation of Options Exercised 
at Time of Contract Award, in solicitations when the solicitation 
includes an option clause, the contracting officer has determined that 
there is a reasonable likelihood that the option will be exercised, and 
the option may be exercised at the time of contract award.
    (c) * * *
    (4) The contracting officer has determined that there is a 
reasonable likelihood that the option will be exercised. For sealed 
bids, the determination shall be in writing.
* * * * *

PART 19--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS


19.302  [Amended]

    28. Section 19.302 is amended in paragraph (d)(1) introductory text 
by removing the word ``below'' and inserting ``of this section'' in its 
place; and removing ``(see 15.1001(b)(2))'' and inserting ``(see 
15.1002(b)(2))'' in its place.


19.501  [Amended]

    29. Section 19.501 is amended in the second sentence of paragraphs 
(h)(1) and (h)(2) by removing the citation ``15.1001(b)(2)'' and 
inserting ``15.1002(b)(2) in their place.

[[Page 42657]]


PART 25--FOREIGN ACQUISITION

    30. Section 25.405 is amended by revising paragraph (e) to read as 
follows:


25.405  Procedures.

* * * * *
    (e) Within three days after a contract award for an eligible 
product, agencies shall give unsuccessful offerors from designated or 
NAFTA countries notice in accordance with 14.409-1 and 15.1002. 
``Day,'' for purposes of the notification process, means calendar day, 
except that the period will run until a day which is not a Saturday, 
Sunday, or legal holiday.

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS

    31. Section 36.304 is amended by revising the introductory text to 
read as follows:


36.304  Notice of award.

    When a notice of award is issued, it shall be done in writing or 
electronically, shall contain information required by 14.408, and 
shall--
* * * * *
    32. Section 36.607 is amended by designating the existing text as 
paragraph (a) and adding paragraph (b) to read as follows:


36.607  Release of information on firm selection.

* * * * *
    (b) Debriefings of successful and unsuccessful firms will be held 
after final selection has taken place and will be conducted, to the 
extent practicable, in accordance with 15.1004 (b) through (g). Note 
that 15.1004 (d)(2) through (d)(5) does not apply to architect-engineer 
contracts.

PART 51--USE OF GOVERNMENT SOURCES BY CONTRACTORS

    33. Section 51.101 is amended at the end of paragraph (a)(1) by 
removing ``or'' and at the end of paragraph (a)(2) by removing the 
period and inserting ``; or'' and by adding paragraph (a)(3) to read as 
follows:


51.101  Policy.

    (a) * * *
    (3) A contract under the Javits-Wagner-O'Day Act (41 U.S.C. 46, et 
seq.) if:
    (i) the nonprofit agency requesting use of the supplies and 
services is providing a commodity or service to the Federal Government, 
and
    (ii) the supplies or services received are directly used in making 
or providing a commodity or service, approved by the Committee for 
Purchase From People Who Are Blind or Severely Disabled, to the Federal 
Government (See Subpart 8.7).
* * * * *
    34. Section 51.102 is amended by revising the second sentence of 
paragraph (a) introductory text to read as follows:


51.102  Authorization to use Government supply sources.
    (a) * * * Except for findings under 51.101(a)(3), the determination 
shall be based on, but not limited to, considerations of the following 
factors:
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    35. Section 52.215-16 is amended by revising the date in the 
provision heading and by revising paragraph (c); by adding paragraph 
(h); by removing Alternate II and redesignating Alternate III as 
Alternate II; and revising Alternates I and II to read as follows:


52.215-16  Contract Award.

* * * * *

Contract Award (Oct 1995)

* * * * *
    (c) The Government intends to evaluate proposals and award a 
contract after conducting written or oral discussions with all 
responsible offerors whose proposals have been determined to be 
within the competitive range. However, each initial offer should 
contain the offeror's best terms from a cost or price and technical 
standpoint.
* * * * *
    (h) The Government may disclose the following information in 
post-award debriefings to other offerors: (1) the overall evaluated 
cost or price and technical rating of the successful offeror; (2) 
the overall ranking of all offerors, when any ranking was developed 
by the agency during source selection; (3) a summary of the 
rationale for award; and (4) for acquisitions of commercial end 
items, the make and model of the item to be delivered by the 
successful offeror.

(End of provision)
    Alternate I (OCT 1995). As prescribed in 15.407(d)(4)(i), 
substitute the following paragraph (d) for paragraph (d) of the 
basic provision:
    (d) The Government may accept any item or combination of items, 
unless doing so is precluded by a restrictive limitation in the 
solicitation or offer.
    Alternate II (OCT 1995). As prescribed in 15.407(d)(4)(ii), 
substitute the following paragraph (c) for paragraph (c) of the 
basic provision:
    (c) The Government intends to evaluate proposals and award a 
contract without discussions with offerors (except communications 
conducted for the purpose of minor clarification). Therefore, each 
initial offer should contain the offeror's best terms from a cost or 
price and technical standpoint. However, the Government reserves the 
right to conduct discussions if later determined by the Contracting 
Officer to be necessary.

[FR Doc. 95-19859 Filed 8-15-95; 8:45 am]
BILLING CODE 6820-EP-M