[Federal Register Volume 68, Number 23 (Tuesday, February 4, 2003)]
[Proposed Rules]
[Pages 5778-5779]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-2580]



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Part V





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Part 52



Federal Acquisition Regulation; Debriefing--Competitive Acquisition; 
Proposed Rule

  Federal Register / Vol. 68, No. 23 / Tuesday, February 4, 2003 / 
Proposed Rules  

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAR Case 2002-014]
RIN 9000-AJ59


Federal Acquisition Regulation; Debriefing--Competitive 
Acquisition

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 (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to implement Sections 1014 and 
1064 of the Federal Acquisition Streamlining Act of 1994 on 
requirements for debriefing unsuccessful offerors under competitive 
proposals.

DATES: Interested parties should submit comments in writing on or 
before April 7, 2003 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to--General Services Administration, 
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to--[email protected]. Please submit comments only and cite FAR case 2002-014 in 
all correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202) 
501-1758. Please cite FAR case 2002-014.

SUPPLEMENTARY INFORMATION:

A. Background

    Sections 1014 and 1064 of the Federal Acquisition Streamlining Act 
of 1994 amended 10 U.S.C. 2305(b) and 41 U.S.C. 253b, respectively, to 
include requirements for debriefing unsuccessful offerors under 
competitive proposals. Specifically, 10 U.S.C. 2305(b)(5)(D) and 41 
U.S.C. 253b(e)(4) require each solicitation for competitive proposals 
to include a statement that prescribes minimal information that shall 
be disclosed in postaward debriefings. In addition to the 
aforementioned minimal statutory disclosure information requirement, 
FAR 15.506(d) added the following required disclosure information:
    1. Unit price information, if applicable, of the successful and 
debriefed offerors as an element of the statutory requirement to 
disclose the overall evaluated cost or price; and
    2. Past performance information on the debriefed offeror.
    Some of the requirements were incorporated into the clause at FAR 
52.215-1, Instructions to Offerors--Competitive Acquisitions, but the 
notification for debriefings was overlooked during the drafting of the 
clause at 52.212-1, Instruction to Offerors--Commercial Items. The rule 
amends FAR 52.212-1 and 52.215-1 to implement the statutory requirement 
and the additional FAR past performance requirement by listing all the 
prescribed minimal information that shall be disclosed in postaward 
debriefings.
    The unit price information, if applicable, on the debriefed and 
successful offerors was intentionally not included. As a result of 
recent court cases, especially MCI WorldCom v. GSA, 163 F. Supp. 2d 28, 
the treatment of unit prices under exemption no. 4 of the Freedom of 
Information Act (5 U.S.C. 552(b)(3)) is in a state of flux which may 
cause a revision to FAR 15.503(b)(1)(iv) to clarify the release of unit 
prices. The requirements are addressed in FAR 15.506(d) and FAR 12.203.
    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 Councils do not expect this proposed rule 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 primarily clarifies language pertaining to disclosure 
of information in postaward debriefings currently authorized by statute 
and does not change existing policy. An Initial Regulatory Flexibility 
Analysis has, therefore, not been performed. We invite comments from 
small businesses and other interested parties. The Councils will 
consider comments from small entities concerning the affected FAR part 
52 in accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 
2002-014), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 52

    Government procurement.

    Dated: January 30, 2003.
Ralph De Stefano,
Acting Director, Acquisition Policy Division.

    Therefore, DOD, GSA, and NASA propose amending 48 CFR part 52 as 
set forth below:

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    1. The authority citation for 48 CFR part 52 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 52.212-1 by revising the date of the provision; 
and adding paragraph (k) to read as follows:


52.212-1  Instructions to Offerors--Commercial Items.

* * * * *

Instructions To Offerors--Commercial Items (Date)

* * * * *
    (k) Debriefing. If a postaward debriefing is given to requesting 
offerors, the Government shall disclose the following information, 
if applicable:
    (1) The agency's evaluation of the significant weak or deficient 
factors in the debriefed offeror's offer;
    (2) The overall evaluated cost or price and technical rating of 
the successful and the debriefed offeror and past performance 
information on the debriefed offeror;
    (3) The overall ranking of all offerors, when any ranking was 
developed by the agency during source selection;
    (4) A summary of the rationale for award;
    (5) For acquisitions of commercial items, the make and model of 
the item to be delivered by the successful offeror; and
    (6) Reasonable responses to relevant questions posed by the 
debriefed offeror as to whether source-selection procedures set 
forth in the solicitation, applicable regulations, and other 
applicable authorities were followed by the agency.
    (End of provision)

    3. Amend section 52.215-1 by revising the date of the provision and 
paragraph (f)(11) to read as follows:


52.215-1  Instructions to Offerors--Competitive Acquisition.

* * * * *

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Instructions To Offerors--Competitive Acquisition (Date)

* * * * *
    (f) * * *
    (11) If a postaward debriefing is given to requesting offerors, 
the Government shall disclose the following information, if 
applicable:
    (i) The agency's evaluation of the significant weak or deficient 
factors in the debriefed offeror's offer;
    (ii) The overall evaluated cost or price and technical rating of 
the successful and the debriefed offeror and past performance 
information on the debriefed offeror;
    (iii) The overall ranking of all offerors, when any ranking was 
developed by the agency during source selection;
    (iv) A summary of the rationale for award;
    (v) For acquisitions of commercial items, the make and model of 
the item to be delivered by the successful offeror; and
    (vi) Reasonable responses to relevant questions posed by the 
debriefed offeror as to whether source-selection procedures set 
forth in the solicitation, applicable regulations, and other 
applicable authorities were followed by the agency.
    (End of provision)
* * * * *
[FR Doc. 03-2580 Filed 2-3-03; 8:45 am]
BILLING CODE 6820-EP-U