[Federal Register Volume 68, Number 238 (Thursday, December 11, 2003)]
[Rules and Regulations]
[Pages 69257-69258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 03-30478]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAC 2001-18; FAR Case 2002-014; Item VII]
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: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending 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: Effective Date: January 12, 2004.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, at (202) 501-
4755, for information pertaining to status or publication schedules. 
For clarification of content, contact Ms. Julia Wise, Procurement 
Analyst, at (202) 208-1168. Please cite FAC 2001-18, FAR case 2002-014.

SUPPLEMENTARY INFORMATION:

A. Background

    This rule amends the FAR to include requirements for debriefing 
unsuccessful offerors under competitive proposals, as required by 
sections 1014 and 1064 of the Federal Acquisition Streamlining Act of 
1994 which amended 10 U.S.C. 2305(b) and 41 U.S.C. 253b, respectively. 
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. Some of the requirements were already 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. This rule amends FAR 52.212-1 and 52.215-1 
to implement the statutory requirements, and the past performance 
debriefing requirement at FAR 15.506(d)(2), by listing all the 
prescribed minimal information that shall be disclosed in postaward 
debriefings.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 68 FR 5778, February 4, 2003. Two respondents submitted 
public comments. The Councils considered the comments before agreeing 
to publish the proposed rule as final without change. A summary of the 
comments and their disposition follows:
    Comment: The revised FAR clauses should include a debriefing 
requirement to reveal the number of ``points'' an offeror received 
under the evaluation of its past performance.
    Response: The Councils do not concur. The clauses, as revised by 
this final rule, establish a clear requirement for agencies to provide 
the results of its evaluation of an offeror's past performance. 
However, agencies successfully use different methods (e.g., adjectival, 
color coding, and point scoring) to evaluate proposals. Specifying a 
particular method would limit agency discretion with no apparent 
associated benefit.
    Comment: The revised FAR clauses should include a debriefing 
requirement to reveal the sources, other than the offeror, of any past 
performance information received.
    Response: The Councils do not concur. FAR 15.506(e) prohibits the 
identification of individuals providing reference information about an 
offeror's past performance.
    Comment: The rule should be revised to address the requirement to 
release unit price information clearly and consistently within the FAR.
    Response: The Councils appreciate that, 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)(4)) is in a state of flux which may

[[Page 69258]]

ultimately require that FAR 15.503(b)(1)(iv) addressing the release of 
unit prices be clarified. The Councils will continue to evaluate this 
issue and will consider whether a case needs to be opened to address 
this issue.
    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 
FlexibilityAct, 5 U.S.C. 601, et seq., because the rule primarily 
clarifies language pertaining to disclosure of information in post-
award debriefings currently authorized by statute and does not change 
existing policy.

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 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: December 4, 2003.
Laura Auletta,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:

PART 52--SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for 48 CFR part 52 is revised to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).


0
2. Amend section 52.212-1 by revising the date of the provision; and 
adding paragraph (l) to read as follows:


52.212-1  Instructions to Offerors--Commercial Items.

* * * * *

Instructions to Offerors--Commercial Items (JAN 2004)

* * * * *
    (l) Debriefing. If a post-award 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.
    (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)

0
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.

* * * * *

Instructions to Offerors--Competitive Acquisition (Jan 2004)

* * * * *
    (f) * * *
    (11) If a post-award 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.
    (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. 03-30478 Filed 12-10-03; 8:45 am]
BILLING CODE 6820-EP-P