[Federal Register Volume 66, Number 243 (Tuesday, December 18, 2001)]
[Rules and Regulations]
[Pages 65368-65369]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-30542]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 15

[FAC 2001-02; FAR Case 1999-022; Item V]
RIN 9000-AI68


Federal Acquisition Regulation; Discussion Requirements

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 (Councils) have agreed to amend the 
Federal Acquisition Regulation (FAR) to clarify the scope of 
discussions in competitive negotiated acquisitions.

DATES: Effective Date: February 19, 2002.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph DeStefano, Procurement Analyst, at (202) 
501-1758. Please cite FAC 2001-02, FAR case 1999-022.

SUPPLEMENTARY INFORMATION:

A. Background

    This final rule amends FAR 15.306(d) to clarify that the 
contracting officer is not required to discuss every area where the 
proposal could be improved. The rule explains that discussions of 
offerors' proposals beyond deficiencies and significant weaknesses are 
a matter of contracting officer judgment. GAO has already interpreted 
the previous FAR language consistently with this clarification in MRC 
Federal, Inc. (B-280969, December 14, 1998), and Du & Associates (B-
280283.3, December 22, 1998). The rule encourages the contracting 
officer to discuss other aspects of an offerors' proposal that have the 
potential, if changed, to materially increase the value of the proposal 
to the Government (B-280283.3). However, the rule makes clear that 
whether these discussions would be worthwhile is within the contracting 
officer's discretion.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 65 FR 17582, April 3, 2000. Five respondents submitted 
comments on the proposed rule. The Councils considered all comments in 
the development of the final rule.
    This is not a significant regulatory action, and therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

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 only clarifies 
existing policy that the scope and extent of discussions beyond the 
stated minimums are a matter of contracting officer judgment. We did 
not receive any comments regarding this determination as a result of 
publication of the proposed rule in the Federal Register at 65 FR 
17582, April 3, 2000.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the

[[Page 65369]]

approval of the Office of Management and Budget under 44 U.S.C. 3501, 
et seq.

List of Subjects in 48 CFR Part 15

    Government procurement.

    Dated: December 5, 2001.
Al Matera,
Director, Federal Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 15 as set forth 
below:

PART 15--CONTRACTING BY NEGOTIATION

    1. The authority citation for 48 CFR part 15 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).


    2. Amend section 15.306 in paragraph (d)(1) by removing ``shall'' 
and inserting ``must'' in its place; by revising paragraph (d)(3); and 
by redesignating paragraph (d)(4) as (d)(5) and adding a new (d)(4) to 
read as follows:


15.306  Exchanges with offerors after receipt of proposals.

* * * * *
    (d) * * *
    (3) At a minimum, the contracting officer must, subject to 
paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to, 
or discuss with, each offeror still being considered for award, 
deficiencies, significant weaknesses, and adverse past performance 
information to which the offeror has not yet had an opportunity to 
respond. The contracting officer also is encouraged to discuss other 
aspects of the offeror's proposal that could, in the opinion of the 
contracting officer, be altered or explained to enhance materially the 
proposal's potential for award. However, the contracting officer is not 
required to discuss every area where the proposal could be improved. 
The scope and extent of discussions are a matter of contracting officer 
judgment.
    (4) In discussing other aspects of the proposal, the Government 
may, in situations where the solicitation stated that evaluation credit 
would be given for technical solutions exceeding any mandatory 
minimums, negotiate with offerors for increased performance beyond any 
mandatory minimums, and the Government may suggest to offerors that 
have exceeded any mandatory minimums (in ways that are not integral to 
the design), that their proposals would be more competitive if the 
excesses were removed and the offered price decreased.
* * * * *
[FR Doc. 01-30542 Filed 12-17-01; 8:45 am]
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