[Federal Register Volume 64, Number 189 (Thursday, September 30, 1999)]
[Rules and Regulations]
[Pages 52673-52675]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-25474]


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DEPARTMENT OF AGRICULTURE

Office of Procurement and Property Management

48 CFR Parts 401, 415, 437, and 452

[AGAR Case 96-04]
RIN 0599-AA07


Agriculture Acquisition Regulation; Part 415 Reorganization; 
Contracting by Negotiation

AGENCY: Office of Procurement and Property Management, USDA.

ACTION: Direct final rule.

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SUMMARY: The Department of Agriculture (USDA) is amending the 
Agriculture Acquisition Regulation (AGAR) to revise and reorganize part 
415, Contracting by Negotiation. USDA is revising and reorganizing part 
415 to reflect changes in the content and structure of Federal 
Acquisition Regulation (FAR) part 15, Contracting by Negotiation. This 
amendment makes it easier for users to consult AGAR part 415 in tandem 
with FAR part 15.

DATES: This rule is effective November 29, 1999 without further action, 
unless we receive written adverse comments or written notice of intent 
to submit adverse comments on or before November 1, 1999. If we receive 
adverse comments, the Office of Procurement and Property Management 
will publish a timely withdrawal of the rule in the Federal Register.

ADDRESSES: Please submit any adverse comments, or a notice of intent to 
submit adverse comments, in writing to U.S. Department of Agriculture, 
Office of Procurement and Property Management, Procurement Policy 
Division, Stop 9303, 1400 Independence Avenue SW., Washington, DC 
20250-9303.

FOR FURTHER INFORMATION CONTACT: Joseph J. Daragan, (202) 720-5729, or 
through the General Services Administration Relay Service, (800) 877-
8339.

SUPPLEMENTARY INFORMATION:
I. Background
II. Dates
III. Procedural Requirements
    A. Executive Order Nos. 12866 and 12988
    B. Regulatory Flexibility Act
    C. Paperwork Reduction Act
    D. Small Business Regulatory Enforcement Fairness Act
IV. Electronic Access Addresses

I. Background

    The AGAR implements the FAR (48 CFR chapter 1) where further 
implementation is needed, and supplements the FAR when coverage is 
needed for subject matter not covered by the FAR. In September 1997, 
FAR Part 15, Contracting by Negotiation, was rewritten to simplify the 
source selection process and to facilitate best value acquisition (62 
FR 51224, September 30, 1997). FAR Part 15 also was restructured to 
facilitate use of the regulation. USDA is amending the AGAR to reflect 
changes made to FAR part 15. USDA also is reorganizing AGAR part 415, 
Contracting by Negotiation, to reflect the new structure of FAR Part 
15. In this rulemaking document, USDA is amending the AGAR as a direct 
final rule, since the changes are non-controversial and unlikely to 
generate adverse comment. The changes are administrative in nature, and 
do not affect the public.
    Rules that an agency believes are noncontroversial and unlikely to 
result in adverse comment may be published in the Federal Register as 
direct final rules. The Office of Procurement and Property Management 
published a policy statement in the Federal Register (63 FR 9158, 
February 24, 1998) to notify the public of its intent to use direct 
final rulemaking in appropriate circumstances.
    This rule makes the following changes to the AGAR:
    (a) We are amending section 401.106 to reflect the restructuring of 
AGAR part 415. We are changing a reference to AGAR segment 415.4 to 
read AGAR segment 415.2.
    (b) We are removing sections 415.103, 415.408, 415.411, 415,607, 
415.608 and 415.612. These sections supplemented FAR regulatory 
guidance which has been removed from the FAR. AGAR coverage is no 
longer required.
    (c) We are removing paragraph (b) of subsection 415.413-2. This 
paragraph merely restates guidance included in the FAR.
    (d) We are moving the following segments of AGAR part 415 to match 
the numbering structure of FAR part 15 following its revision:
    (1) Subsection 415.406-1, Uniform contract format, is now section 
415.204, Contract format;
    (2) Section 415.407, Solicitation provisions, is now section 
415.209, Solicitation provisions and contract clauses;
    (3) Paragraphs (c) through (e) of subsection 415.413-2, Disclosure 
and use of information before award--Alternate II, are now paragraphs 
(a) through (c) of section 415.207, Handling proposals and information.
    (4) Subpart 415.5, Unsolicited Proposals, is now subpart 415.6, 
Unsolicited Proposals;

[[Page 52674]]

    (5) Subpart 415.9, Profit, is now subpart 415.4, Contract Pricing;
    (6) Subpart 415.10, Preaward, Award, and Postaward Notifications, 
Protests and Mistakes, is now subpart 415.5, Preaward, Award, and 
Postaward Notifications, Protests and Mistakes.
    (e) We are adding section 415.303, Responsibilities, to specify 
that the head of the contracting activity is authorized to appoint an 
individual other than the contracting officer as the source selection 
authority.
    (f) We are adding section 415.305, Proposal evaluation, to 
authorize USDA contracting activities to establish procedures for 
release of cost information to technical evaluation teams.
    (g) We are adding section 437.204, Guidelines for determining 
availability of personnel. This section authorizes heads of contracting 
activities to approve the use of non-Government evaluators in proposal 
evaluation. AGAR subsection 415.413-2 included a substantially similar 
authorization, which we adapted in drafting section 437.204.
    (h) We are amending AGAR clause 452.215-71 to update a FAR 
reference in that clause and to delete clause Alternates I and II. 
These alternates provided for the use of standard forms which have been 
canceled and not replaced. Furthermore, guidance provided by the 
alternate clauses is provided by FAR clause 52.215-20.
    (i) We are correcting prescriptions in sections 452.215-71, 
452.215-72 and 452.215.73 to reflect updated AGAR section numbers based 
on reorganization of AGAR part 415.

II. Procedural Requirements

A. Executive Order Nos. 12866 and 12988

    USDA prepared a work plan for this regulation and submitted it to 
the Office of Management and Budget (OMB) pursuant to Executive Order 
No. 12866. OMB determined that the rule was not significant for the 
purposes of Executive Order No. 12866. Therefore, the rule has not been 
reviewed by OMB. USDA has reviewed this rule in accordance with 
Executive Order No. 12988, Civil Justice Reform. The proposed rule 
meets the applicable standards in section 3 of Executive Order No. 
12988.

B. Regulatory Flexibility Act

    USDA reviewed this rule under the Regulatory Flexibility Act, 5 
U.S.C. 601-611, which requires preparation of a regulatory flexibility 
analysis for any rule which is likely to have significant economic 
impact on a substantial number of small entities. The reorganization 
and revision of AGAR part 415 does not affect the way in which USDA 
conducts its acquisitions or otherwise interacts with the public. USDA 
certifies that this rule will not have a significant economic effect on 
a substantial number of small entities, and, therefore, no regulatory 
flexibility analysis has been prepared.

C. Paperwork Reduction Act

    No new information collection or recordkeeping requirements are 
imposed on the public by this rule. Accordingly no OMB clearance is 
required by section 350(h) of the Paperwork Reduction Act, 44 U.S.C. 
3501, et seq., or OMB's implementing regulation at 5 CFR Part 1320.

D. Small Business Regulatory Enforcement Fairness Act

    This rule has been submitted to each House of Congress and the 
Comptroller General in accordance with the Small Business Regulatory 
Enforcement Fairness Act of 1996, 5 U.S.C. 801 et seq.

IV. Electronic Access Addresses.

    You may send electronic mail (E-mail) to [email protected], or 
contact us via fax at (202) 720-8972, if you would like additional 
information about this rule, or if you wish to submit comments.

List of Subjects in 48 CFR Parts 415 and 452

    Government contracts, Government procurement.

    For the reasons set out in the preamble, the Office of Procurement 
and Property Management amends 48 CFR Parts 401, 415, 437, and 452 as 
set forth below:
    1. The authority citation for Part 401 continues to read as 
follows:

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    2. In section 401.106, remove ``415.4'' and add, in its place, 
``415.2''.
    3. Revise Part 415 to read as follows:

PART 415--CONTRACTING BY NEGOTIATION

Subpart 415.2--Solicitation and Receipt of Proposals and Information:

Sec.
415.204  Contract format.
415.207  Handling proposals and information.
415.209  Solicitation provisions and contract clauses.

Subpart 415.3--Source Selection

Sec.
415.303  Responsibilities.
415.305  Proposal evaluation.

Subpart 415.4--Contract Pricing

Sec.
415.404-4  Profit.

Subpart 415.5--Preaward, Award, and Postaward Notifications, Protests 
and Mistakes

Sec.
415.570  Post-award conference.

Subpart 415.6--Unsolicited Proposals

Sec.
415.604  Agency points of contact.
415.606  Agency procedures.

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

Subpart 415.2--Solicitation and Receipt of Proposals and 
Information:


415.204  Contract format.

    The Senior Procurement Executive is authorized to exempt contracts 
from the uniform contract format.


415.207  Handling proposals and information.

    (a) Throughout the source selection process, agency personnel and 
non-Government evaluators with access to proposal information shall 
disclose neither the number of offerors nor their identity except as 
authorized by FAR subpart 15.5. (See also FAR 5.403.)
    (b) The contracting officer shall obtain the following written 
agreement from the non-Government evaluator prior to the release of any 
proposal to that evaluator.

AGREEMENT GOVERNING THE USE AND DISCLOSURE OF PROPOSALS

RFP--------------------------------------------------------------------
Offeror----------------------------------------------------------------
    21. To the best of my knowledge and belief, no conflict of 
interest exists that may diminish my capacity to perform an 
impartial and objective review of the offeror's proposal, or may 
otherwise result in a biased opinion or an unfair advantage. If a 
potential conflict of interest arises or if I identify such a 
conflict, I agree to notify the Government promptly concerning the 
potential conflict. In determining whether any potential conflict of 
interest exists, I agree to review whether my or my employer's 
relationships with other persons or entities, including, but not 
limited to, ownership of stocks, bonds, other outstanding financial 
interests or commitments, employment arrangements (past, present, or 
under consideration), and, to the extent known by me, all financial 
interests and employment arrangements of my spouse, minor children, 
and other members of my immediate household, may place me in a 
position of conflict, real or apparent, with the evaluation 
proceedings.

[[Page 52675]]

    2. I agree to use proposal information only for evaluation 
purposes. I understand that any authorized restriction on disclosure 
placed upon the proposal by the prospective contractor or subcontractor 
or by the Government shall be applied to any reproduction or abstracted 
information of the proposal. I agree to use my best effort to safeguard 
such information physically, and not to disclose the contents of, or 
release any information relating to, the proposal(s) to anyone outside 
of the Source Evaluation Board or other panel assembled for this 
acquisition, the Contracting Officer, or other individuals designated 
by the Contracting Officer.
    3. I agree to return to the Government all copies of proposals, 
as well as any abstracts, upon completion of the evaluation.
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(Name and Organization)

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(Date)

(End of provision)

    (c) The release of a proposal to a non-Government evaluator for 
evaluation does not constitute the release of information for purposes 
of the Freedom of Information Act (5 U.S.C. 552).
    (d) The contracting officer shall attach a cover page bearing the 
following notice: GOVERNMENT NOTICE FOR HANDLING PROPOSALS--This 
proposal shall be used and disclosed for evaluation purposes only. 
Attach a copy of this Government notice to every reproduction or 
abstract of the proposal. Any authorized restrictive notices which the 
submitter places on this proposal shall be strictly complied with. 
Disclosure of this proposal outside the Government for evaluation 
purposes shall be made only to the extent authorized by, and in 
accordance with, FAR 3.104-5, FAR 15.207, and AGAR 415.207.


415.209  Solicitation provisions and contract clauses.

    (a) The provision at 452.215-71, Instructions for the Preparation 
of Technical and Business Proposals, may be used when offerors will be 
required to submit technical and business proposals. Contracting 
officers should tailor the clause to reflect the degree of information 
required for the specific acquisition.
    (b) The contracting officer shall insert the provision at 452.215-
72, Amendments to Proposals, in solicitations which require the 
submittal of lengthy, complex technical proposals.

Subpart 415.3--Source Selection


415.303  Responsibilities.

    The head of the contracting activity (HCA) is authorized to appoint 
an individual other than the contracting officer as the source 
selection authority.


415.305  Proposal evaluation.

    HCAs are responsible for establishing procedures regarding the 
release of cost information to the members of the technical evaluation 
team.

Subpart 415.4--Contract Pricing


415.404-4  Profit.

    (a)(1) USDA will use a structured approach to determine the profit 
or fee prenegotiation objective in acquisition actions when price 
negotiation is based on cost analysis.
    (2) The following types of acquisitions are exempt from the 
requirements of the structured approach, but the contracting officer 
shall comply with FAR 15.404-4(d) when analyzing profit for these 
contracts or actions:
    (i) Architect-engineer contracts;
    (ii) Construction contracts;
    (iii) Contracts primarily requiring delivery of material supplied 
by subcontractors;
    (iv) Termination settlements; and
    (v) Cost-plus-award-fee contracts;
    (b) Unless otherwise restricted by contracting activity procedures, 
the Contracting Officer may use another Federal agency's structured 
approach if that approach has been formalized and is maintained as part 
of that Agency's acquisition regulations (i.e., included in that 
Agency's assigned chapter of Title 48 of the Code of Federal 
Regulations).
    (c) The HCA is responsible for establishing procedures to ensure 
compliance with this subpart.

Subpart 415.5--Preaward, Award, and Postaward Notifications, 
Protests and Mistakes


415.570  Post-award conference.

    If a postaward conference is necessary, the contracting officer 
shall insert clause 452.215-73, Post-Award Conference.

Subpart 415.6--Unsolicited Proposals


415.604  Agency points of contact.

    HCAs are responsible for establishing procedures to ensure 
compliance with the requirements of FAR 15.604.


415.606  Agency procedures.

    HCAs are responsible for establishing the procedures for control of 
unsolicited proposals required by FAR 15.606(a) and for identifying the 
contact points as required by FAR 15.606(b).
    4. The authority citation for Part 437 continues to read as 
follows:

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    5. Add section 437.204 to read as follows:


437.204  Guidelines for determining availability of personnel.

    The head of the contracting activity (HCA) is authorized to approve 
the use of non-Government evaluators in proposal evaluation. Each such 
decision shall be supported by a written determination in accordance 
with FAR 37.204.
    6. The authority citation for Part 452 continues to read as 
follows:

    Authority: 5 U.S.C. 301 and 40 U.S.C. 486(c).

    7. Revise paragraphs (c) introductory text and (c)(1) and remove 
Alternates I and II of 452.215-71 to read as follows:


452.215-71  Instructions for the preparation of technical and business 
proposals.

    As prescribed in 415.209(a), insert a provision substantially as 
follows:

INSTRUCTIONS FOR THE PREPARATION OF TECHNICAL AND BUSINESS PROPOSALS

(September 1999)

* * * * *
    (c) Business Proposal Instructions.
    (1) Cost Proposal.
    In addition to any other requirements for cost/pricing 
information required in clause FAR 52.215-20, Requirements for Cost 
or Pricing Data or Information Other Than Cost or Pricing Data (OCT 
1997), the following is required:

(Contracting Officer shall identify additional information required 
if appropriate.)
* * * * *
    8. In section 452.215-72, remove ``415.407(b)'' and add, in its 
place, ``415.209(b)''.
    9. In section 452.215-73, remove ``415.1070'' and add, in its 
place, ``415.570''.

    Done at Washington, DC, this 27th day of September, 1999.
W.R. Ashworth,
Director, Office of Procurement and Property Management.
[FR Doc. 99-25474 Filed 9-29-99; 8:45 am]
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