[Federal Register Volume 61, Number 252 (Tuesday, December 31, 1996)]
[Rules and Regulations]
[Pages 69288-69291]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-32807]
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DEPARTMENT OF DEFENSE
48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36
[FAC 90-44; FAR Case 96-304; Item III]
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: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council have agreed on a final rule amending
the Federal Acquisition Regulation (FAR) to implement Section 4104 of
the Clinger-Cohen Act of 1996. The 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. The Federal Acquisition Reform Act of 1996 was
subsequently renamed the Clinger-Cohen Act of 1996.
EFFECTIVE DATE: January 1, 1997.
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 FAC 90-44, FAR case 96-304.
SUPPLEMENTARY INFORMATION:
A. Background
Section 4104 of the Clinger-Cohen 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 interest of the Government to
[[Page 69289]]
conduct a debriefing at that time. Section 4104 also requires that the
debriefing 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.
A proposed rule requesting public comments was published in the
Federal Register at 61 FR 32580, June 24, 1996. Five comments were
received from four respondents and were considered in developing the
final rule.
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 provides for
earlier debriefings to unsuccessful offerors but does not significantly
alter the amount of information provided to unsuccessful offerors.
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.
List of Subjects in 48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36
Government procurement.
Dated: December 19, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, 48 CFR Parts 5, 13, 14, 15, 19, 25, 33, and 36 are
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:
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Section Remove Insert
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5.303(b)(2).............................. 15.1002(c) 15.1003(b)
13.106-2(c)(3)........................... 15.1002(c)(2) 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
33.103(f)(3)............................. 15.1004 15.1006
33.104(c)(1)............................. 15.1004 15.1006
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PART 14--SEALED BIDDING
3. Section 14.503-1 is amended by revising the second sentence of
paragraph (g) 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 is amended by revising paragraph (f) to read as
follows:
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.
15.1001 Definition.
Day, as used in this subpart, has the meaning set forth at 33.101.
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 they are excluded from the competitive range or otherwise
excluded from further consideration. The notice shall--
(i) State the basis for the determination and that a proposal
revision will not be considered;
(ii) Advise the offeror that, if a preaward or postaward debriefing
is desired, a written request must be submitted to the contracting
officer within three days; and
(iii) Indicate that, absent receipt of a timely written request,
the Government is not obligated to provide a preaward or a postaward
debriefing.
(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
contacting officer shall notify each unsuccessful offeror in writing of
the name and location of the apparent successful offeror. The notice
also shall state that--
(i) The Government will not consider subsequent revisions of the
unsuccessful offeror's proposal; and
(ii) No response is required unless a basis exists to challenge the
small
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business size status of the apparent 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 unsuccessful offeror (unless preaward notice was given under
paragraph (a) of this section).
(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 reason 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 the simplified
acquisition procedures in part 13.
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 a 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 or otherwise excluded
from further consideration prior to the final source selection decision
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 requesting and conducting preaward
debriefings is as follows:
(a) The offeror may request a preaward debriefing by submitting a
written request for debriefing to the contracting officer within three
days of 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 on each acquisition.
(b) The contracting officer should provide a debriefing to the
offeror as soon as practicable. 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 or designee shall chair any debriefing
session held. Individuals who conducted the evaluation shall provide
support.
(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 identity of other offerors;
(3) The content of other offerors' proposals;
(4) The ranking of other offerors;
(5) The evaluation of other offerors; or
(6) Any of the information prohibited in 15.1006(e).
(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 shall be debriefed and furnished the basis for the
source selection decision and contract award, if its written request is
received by the contracting officer within three days after the offeror
receives notice of contract award. Offerors that requested a postaward
debriefing at the time they were eliminated from the competitive range
or otherwise excluded from further consideration prior to the final
source selection decision shall also be provided a debriefing at this
time. An offeror that failed to submit a timely request under
15.1003(a) or 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 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
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 or designee shall chair any debriefing
session held. Individuals who conducted the evaluation shall provide
support.
(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
[[Page 69291]]
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) Before filing a protest, prior to award of a contract, of the
exclusion of an offeror from the competitive range (or otherwise from
further consideration), use of alternative dispute resolution
techniques is encouraged (see subpart 33.2).
(b) Protests against award in negotiated acquisitions shall be
treated substantially the same as in sealed bidding (see subpart 33.1).
(c) 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 for the new solicitation, or
original offerors that are requested to submit new best and final
offers--
(1) Information provided in any debriefings conducted on the
original award about the successful offeror's proposal; and
(2) Other nonproprietary information 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 is amended by revising 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, 15.1006 (b) through
(f), and 15.1007(c). Note that 15.1006 (d)(2) through (d)(5) do not
apply to architect-engineer contracts.
[FR Doc. 96-32807 Filed 12-30-96; 8:45 am]
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