[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Proposed Rules]
[Pages 40116-40117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19351]



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_______________________________________________________________________

Part III

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Part 6, et al.



Federal Acquisition Regulations; Competitive Range Determinations; 
Proposed Rule

  Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 / 
Proposed Rules  

[[Page 40116]]



DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 6, 12, 15, and 52

[FAR Case 96-303]
RIN 9000-AH15


Federal Acquisition Regulation; Competitive Range Determinations

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 are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement Sections 4101 and 4103 of the 
Federal Acquisition Reform Act of 1996. The rule provides the 
contracting officer with the authority to limit the size of the 
competitive range, in accordance with criteria specified in the 
solicitation, to the greatest number that will permit an efficient 
competition. 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 September 30, 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 & F 
Streets, NW, Room 4037, Washington, DC 20405.
    Please cite FAR case 96-303 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 96-303.

SUPPLEMENTARY INFORMATION:

A. Background

    Subsections 4101 (a) and (b) of the Federal Acquisition Reform Act 
of 1996 (Pub. L. 104-106) (the Act) require FAR implementation of the 
requirement to obtain full and open competition in a manner that is 
consistent with the need to efficiently fulfill the Government's 
requirements. Section 4103 of the Act provides that the contracting 
officer may limit the number of proposals in the competitive range, in 
accordance with criteria specified in the solicitation, to the greatest 
number that will permit an efficient competition. The proposed rule 
revises FAR 6.101(b), 12.301(e), 15.407(d)(4), 15.609, 52.212-1(g) and 
52.215-16 to implement sections 4101 and 4103. The integrity, fairness, 
and openness principles in FAR subpart 1.102 are not changed.

B. Regulatory Flexibility Act

    The proposed changes may 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 
revises the procedures for determining the competitive range in 
negotiated acquisitions. The size of the competitive range will be 
reduced in some negotiated acquisitions and some offerors may be 
eliminated from a competition earlier than they would be eliminated 
under existing procedures. However, bid and proposal costs are expected 
to decrease, as an offeror who is not likely to receive an award will 
be less likely to remain in a competition. An Initial Regulatory 
Flexibility Analysis has been performed and will be provided to the 
Chief Council for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the FAR Secretariat. Comments are 
invited from small businesses and other interested parties. Comments 
from small entities concerning the affected FAR subpart will be 
considered in accordance with section 610 of the Act. Such comments 
must be submitted separately and should cite 5 U.S.C. 601, et seq. (FAR 
case 96-303), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose any substantial change in 
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 6, 12, 15 and 52

    Government procurement.

    Dated: July 25, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, it is proposed that 48 CFR Parts 6, 12, 15 and 52 be 
amended as set forth below:
    1. The authority citation for 48 CFR Parts 6, 12, 15 and 52 
continues to read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. 2301 to 2331; and 42 
U.S.C. 2473(c).

PART 6--COMPETITION REQUIREMENTS

    2. Section 6.101 is amended by revising paragraph (b) to read as 
follows:


6.101   Policy

* * * * *
    (b) Contracting officers shall provide for full and open 
competition through use of the competitive procedure, or combination of 
competitive procedures, contained in this subpart that is best suited 
to the circumstances of the contract action and is consistent with the 
need to efficiently fulfill the Government's requirement. Contracting 
officers must use good judgment in selecting the procedure that best 
meets the needs of the Government.

PART 12.3--ACQUISITION OF COMMERCIAL ITEMS

    3. Section 12.301 is amended by adding new paragraph (e)(4) to read 
as follows:


12.301   Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (e) * * *
    (4) The contracting officer may reserve the right to conduct 
discussions with offerors determined to be within the competitive range 
after evaluation of proposals and to limit the number of proposals in 
the competitive range to the greatest number that will permit an 
efficient competition among the most highly rated proposals. 52.215-16, 
Contract Award, Alternate III, may be used in solicitations for this 
purpose.
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

    4. Section 15.407 is amended by revising paragraph (d)(4)(ii) and 
adding new paragraph (d)(4)(iii) to read as follows:


15.407   Solicitation provisions.

* * * * *
    (d)  * * *
    (4)  * * *

[[Page 40117]]

    (ii) If awards are intended to be made without discussions with 
offerors within the competitive range, use the basic provision with its 
Alternate II.
    (iii) If the Government wishes to reserve the right to limit the 
competitive range to no more than a specific number, use the basic 
provision with its Alternate III, or the basic provision with both 
Alternates II and III.
* * * * *
    5. Section 15.609 is revised to read as follows:


15.609   Competitive range.

    (a) The contracting officer shall determine the competitive range 
for the purpose of conducting written or oral discussion (see 
15.610(b)) based on cost or price and other factors in the 
solicitation. The competitive range consists of proposals having the 
greatest likelihood of award based on the factors and subfactors in the 
solicitation.
    (b) In planning an acquisition, the contracting officer may 
determine that the number of proposals that would otherwise be included 
in the competitive range is expected to exceed the number at which an 
efficient competition can be conducted. In reaching such a conclusion, 
the contracting officer may consider such factors as the results of 
market research, historical data from previous acquisitions for similar 
supplies and services, and the resources available to conduct the 
source selection. Alternate III of 52.215-16, Contract Award, may be 
used to indicate the Government's estimate of the greatest number or 
proposals that will be included in the competitive range for purposes 
of conducting an efficient competition among the most highly rated 
proposals.
    (c) After evaluating offers, the contracting officer may determine 
that the number of proposals that would otherwise be included in the 
competitive range exceeds the number at which an efficient competition 
can be conducted. Provided the solicitation notifies offerors that the 
competitive range can be limited for purposes of efficiency, the 
contracting officials may limit the number of proposals in the 
competitive range to the greatest number that will permit an efficient 
competition among the most highly rated proposals. The basic 
solicitation provisions at 52.215-16, Contract Award, reserves the 
contracting officer's right to limit the competitive range for purposes 
of efficiency.
    (d) If the contracting officer determines that an offeror's 
proposal is no longer in the competitive range the proposal shall no 
longer be considered for award. Written notice of this decision shall 
be provided to the unsuccessful offeror at the earliest practicable 
time (see 15.1002(b)).
    (e) Offerors excluded from the competitive range may request a 
debriefing. When a debriefing is requested, see 15.1004.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Section 52.212-1 is amended by revising the provision date and 
paragraph (g) to read as follows:


52.212-1  Instructions to Offerors--Commercial Items.

* * * * *

Instructions to Offerors--Commercial Items (Date)

* * * * *
    (g) Contract award (not applicable to Invitation for Bids). 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 individual 
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 the Contracting Officer later determines 
them to be necessary. If discussions are held and the Contracting 
Officer determines that the number of proposals that would otherwise 
be in the competitive range exceeds the number at which an efficient 
competition can be conducted, the Contracting Officer may limit the 
number of proposals in the competitive range to the greatest number 
that will permit an efficient competition among the most highly 
rated proposals. The Government may reject any or all offers if such 
action is in the public interest; accept other than the lowest 
offer; and waive informalities and minor irregularities in offers 
received.
* * * * *
    7. Section 52.215-16 is amended by revising the provision date and 
paragraph (c), revising Alternate II (c), and adding a new Alternate 
III to read as follows:


52.215-16  Contract Award.

* * * * *

Contract Award (Date)

* * * * *
    (c) The Government intends to evaluate proposals and award a 
contract after conducting discussions with responsible offerors 
whose proposals have been determined to be within the competitive 
range. If the Contracting Officer determines that the number of 
proposals that would otherwise be in the competitive range exceeds 
the number at which an efficient competition can be conducted, the 
Contracting Officer may limit the number of proposals in the 
competitive range to the greatest number that will permit an 
efficient competition among the most highly rated proposals. 
Therefore, each initial offer should contain the offeror's best 
terms from a cost or price and technical standpoint.
* * * * *
    Alternate II (Date) * * *
    (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 
individual 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 the Contracting Officer later 
determines them to be necessary. If discussions are to be held and 
the Contracting Officer determines that the number of proposals that 
would otherwise be in the competitive range exceeds the number at 
which an efficient competition can be conducted, the Contracting 
Officer may limit the number of proposals in the competitive range 
to the greatest number that will permit an efficient competition 
among the most highly rated proposals.
    Alternate III (Date). As prescribed in 15.407(d)(4)(iii), insert 
the following paragraph (i) in the basic provision:
    (i) If the Contracting Officer exercises the Government's right 
to limit the number of proposals in the competitive range, the 
competitive range will be limited to no more than ________ (insert 
number).

[FR Doc. 96-19351 Filed 7-30-96; 8:45 am]
BILLING CODE 6820-EP-M