[Federal Register Volume 61, Number 122 (Monday, June 24, 1996)]
[Proposed Rules]
[Pages 32580-32582]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-15901]




[[Page 32579]]


_______________________________________________________________________

Part IV

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Part 5, et al.



Federal Acquisition Regulation; Preaward Debriefings; Proposed Rule

  Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / 
Proposed Rules  

[[Page 32580]]



DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36

[FAR Case 96-304]
RIN 9000-AH13


Federal Acquisition Regulation; Preaward Debriefings

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 are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement Section 4104 of the Federal 
Acquisition Reform Act of 1996. The proposed rule requires that, prior 
to contract award, contracting officers provide a debriefing to any 
interested offeror on the reasons for that offeror's exclusion from the 
competitive range in a competitive negotiation. This regulatory action 
was not subject to Office of Management and Budget review under 
Executive Order 12866, dated September 30, 1993. This is not a major 
rule under 5 U.S.C. 804.

DATES: Comments should be submitted on or before August 23, 1996 to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: -
General Services Administration, FAR Secretariat (MVRS), 18th and F 
Streets, NW., Room 4037, Washington, DC 20405.
    Please cite FAR case 96-304 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758 
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 FAR case 96-304.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 4104 of the Federal Acquisition Reform Act of 1996 (Public 
Law 104-106) requires that, prior to contract award, contracting 
officers provide a debriefing to any interested offeror on the reasons 
for that offeror's exclusion from the competitive range in a 
competitive negotiation. The contracting officer may refuse a preaward 
debriefing request if it is not in the best interests of the government 
to conduct a debriefing at that time. Section 4104 also requires that 
the debriefings include the following information: the agency's 
evaluation of the significant elements in the offeror's proposal; a 
summary of the rationale for the offeror's exclusion; and reasonable 
responses to relevant questions posed by the debriefed offeror as to 
whether the source selection procedures in the solicitation and 
applicable regulations were followed by the agency.

B. Regulatory Flexibility Act

    This proposed rule is not expected 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 
provides for earlier debriefings to unsuccessful offerors but does not 
significantly alter the amount of information provided to unsuccessful 
offerors. Therefore, an Initial Regulatory Flexibility Analysis has not 
been performed. Comments from small entities concerning the affected 
FAR subpart will be considered in accordance with 5 U.S.C. 610 of the 
Act. Such comments must be submitted separately and should cite 5 
U.S.C. 601, et seq. (FAR case 96-304), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
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.

List of Subjects in 48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36-

    Government procurement.

    Dated: June 18, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, it is proposed that 48 CFR Parts 5, 13, 14, 15, 19, 25, 
33 and 36 be amended as set forth below:
    1. The authority citation for 48 CFR Parts 5, 13, 14, 15, 19, 25, 
33 and 36 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).

CHAPTER 1--[AMENDED]-

    2. In the list below, for each section listed in the left column, 
remove the citation listed in the middle column, and insert the 
citation in the last column:

------------------------------------------------------------------------
           Section                   Remove                Insert       
------------------------------------------------------------------------
5.303(b)(2)-................  15.1002(c)-.........  15.1003(b)-         
13.106-1(c)(2)-.............  15.1001(c)(3)-......  15.1003(b)(2)-      
15.412(d)-..................  15.1002(c)(1)-......  15.1003(b)(1)-      
15.609(c)-..................  15.1002(b)-.........  15.1003-            
19.302(d)(1)-...............  15.1002(b)(2)-......  15.1003(a)(2)-      
19.501(h)(1)-...............  15.1002(b)(2)-......  15.1003(a)(2)-      
19.501(h)(2)-...............  15.1002(b)(2)-......  15.1003(a)(2)-      
25.405(e)-..................  15.1002-............  15.1003-            
33.104(c)(1)-...............  15.1004-............  15.1006             
33.105(d)(1) (intro text)-..  15.1004-............  15.1006             
------------------------------------------------------------------------

PART 14--SEALED BIDDING

    3. Section 14.503-1(g) is revised in the second sentence to read as 
follows:


14.503-1   Step one.

* * * * *
    (g) * * * Upon written request, the contracting Officer shall 
debrief unsuccessful offerors (see 15.1005 and 15.1006.
* * * * *

PART 15--CONTRACTING BY NEGOTIATION-

    4. Section 15.612(f) is revised to read as follows:

[[Page 32581]]

15.612   Formal source selection.

* * * * *
    (f) Notices and debriefings. See 15.1003, 15.1004, 15.1005, and 
15.1006.-
    5. Subpart 15.10 is revised to read as follows:
Subpart 15.10--Preaward, Award, and Postaward Notifications, Protests, 
and Mistakes
Sec.
15.1001 Definition.
15.1002 Applicability.
15.1003 Notifications to unsuccessful offerors.
15.1004 Notification to successful offeror.
15.1005 Preaward debriefing of offerors.
15.1006 Postaward debriefing of offerors.
15.1007 Protests against award.
15.1008 Discovery of mistakes.

Subpart 15.10--Preaward, Award, and Postaward Notifications, 
Protests, and Mistakes


15.1001  - Definition.

    ''Day,'' as used in this subpart, means calendar day, except that 
the period will run until a day which is not a Saturday, Sunday, or 
legal holiday.


15.1002   Applicability.

    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).


15.1003   Notifications to unsuccessful offerors.

    (a) Preaward notices. (1) Preaward notices of exclusion from 
competitive range. The contracting officer shall promptly notify 
offerors when their proposals are excluded from the competitive range. 
The notice shall state the basis for the determination and that a 
proposal revision will not be considered.
    (2) Preaward notices for small business set-asides. 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 offeror in writing of the name 
and location of the apparent successful offeror. The notice shall also 
state that
    (i) The Government will not consider subsequent revisions of the 
offeror's proposal, and
    (ii) No response is required unless a basis exists to challenge the 
small business size status of the apparently successful offeror. The 
notice is not required when the contracting officer determines in 
writing that the urgency of the requirement necessitates award without 
delay.
    (b) Postaward notices. Within three days after the date of contract 
award, the contracting officer shall provide written notification to 
each offeror whose proposal was in the competitive range but not 
selected for award (Public Law 103-355). --
    (1) The notice shall include--
    (i) The number of offerors solicited;
    (ii) The number of proposals received;-
    (iii) The name and address of each offeror receiving an award;
    (iv) The items, quantities, and unit prices of each award (if the 
number of items or other factors makes listing unit prices 
impracticable, only the total contract price need be furnished); and
    (v) In general terms, the reasons the offeror's proposal was not 
accepted, unless the price information in paragraph (b)(1)(iv) of this 
section readily reveals the reason. In no event shall an offeror's cost 
breakdown, profit, overhead rates, trade secrets, manufacturing 
processes and techniques, or other confidential business information be 
disclosed to any other offeror.--
    (2) Upon request, the contracting officer shall furnish the 
information described in paragraphs (b)(1) (i) through (v) of this 
section to unsuccessful offerors in solicitations using simplified 
acquisition procedures in part 13.
    (3) Upon request, after contract award, the contracting officer 
shall provide the information in paragraphs (b)(1) (i) through (v) of 
this section to unsuccessful offerors who received a preaward notice of 
exclusion from the competitive range.


15.1004  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 notice of the award to that offeror 
(but see 15.608(b)). When an award is made to an offeror for less than 
all of the items that may be awarded to that offeror and additional 
items are being withheld for subsequent award, each notice shall state 
that the Government may make subsequent awards on those additional 
items within the offer acceptance period.


15.1005  Preaward debriefing of offerors.-

    Offerors excluded from the competitive range may request a 
debriefing before award (10 U.S.C. 2305(b)(6)(A) and 41 U.S.C. 253b(f)-
(h)). The process for preaward debriefings follows:-
    (a) The offeror may request a preaward debriefing by submitting a 
written request for debriefing to the contracting officer within three 
days after the receipt of notice of exclusion from the competitive 
range. If the offeror does not submit a timely request, the offeror 
need not be given either a preaward or a postaward debriefing. Offerors 
are entitled to no more than one debriefing for each proposal.-
    (b) The contracting officer should provide a debriefing to the 
offeror as soon as practical. If providing a preaward debriefing is not 
in the best interest of the Government at the time it is requested, the 
contracting officer may delay the debriefing, but shall provide the 
debriefing no later than the time postaward debriefings are provided 
under 15.1006. In that event, the contracting officer shall include the 
information at 15.1006(d) in the debriefing.-
    (c) Debriefings may be done orally, in writing, or by any other 
method acceptable to the contracting officer.-
    (d) The contracting officer should normally chair any debriefing 
session held. Individuals who conducted 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, if approved by an individual at a level above the 
contracting officer.-
    (e) At a minimum, preaward debriefings shall include----
    (1) The agency's evaluation of significant elements in the 
offeror's proposal;--
    (2) A summary of the rationale for excluding the offeror from the 
competitive range; and--
    (3) Reasonable responses to relevant questions about whether source 
selection procedures contained in the solicitation, applicable 
regulations, and other applicable authorities were followed in the 
process of excluding the offeror from the competitive range.-
    (f) Preaward debriefings shall not disclose----
    (1) The number of offerors;--
    (2) The identify of other offerors;--
    (3) The content of other offeror's proposals;--
    (4) The ranking of other offerors;--
    (5) The evaluation of other offerors; or--
    (6) Any of the information prohibited in 15.1006(e).-

[[Page 32582]]

    (g) The contracting officer shall include an official summary of 
the debriefing in the contract file.


15.1006 Postaward debriefing of offerors.-

    (a) 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. An offeror who failed to 
submit a timely request under 15.1005(a) is not entitled to a 
debriefing. When practicable, debriefing requests received more than 
three days after the offeror receives notice of contract award may be 
accommodated. However, accommodating untimely debriefing requests does 
not extend the time within which suspension of performance can be 
required because 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.-
    (b) Debriefings of successful and unsuccessful offerors may be done 
orally, in writing, or by any other method acceptable to the 
contracting officer.-
    (c) The contracting officer should normally chair any debriefing 
session held. Individuals who conducted the evaluation 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, the 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.


15.1007  Protests against award.-

    (a) Protests against award in negotiated acquisitions shall be 
treated substantially the same as in sealed bidding (see subpart 33.1). 
Use of agency protest procedures which incorporate the alternative 
dispute resolution provisions of Executive Order 12979 is encouraged 
for both preaward and postaward protests.-
    (b) 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 prospective offerors or original offerors still within the 
competitive range, respectively----
    (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.


15.1008  Discovery of mistakes.-

    For treatment of mistakes in an offeror's proposal that are 
discovered before award, see 15.607. Mistakes in a contractor's 
proposal that are disclosed after award shall be processed in 
accordance with 14.407-4.

PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS-

    6. Section 36.607(b) is revised 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 and 15.1006 (b) through 
(g). Note that 15.1006(d) (2) through (d)(5) does not apply to 
architect-engineer contracts.

[FR Doc. 96-15901 Filed 6-21-96; 8:45 am]
BILLING CODE 6820-EP-P