[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)]
[Proposed Rules]
[Pages 85914-85915]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-28450]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1
[FAR Case 2016-005; Docket No. 2016-0005, Sequence No.1]
RIN 9000-AN29
Federal Acquisition Regulation: Effective Communication between
Government and Industry
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement a section of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016. This rule
clarifies that agency acquisition personnel are permitted and
encouraged to engage in responsible and constructive exchanges with
industry, so long as those exchanges are consistent with existing law
and regulation and do not promote an unfair competitive advantage to
particular firms.
DATES: Interested parties should submit comments to the Regulatory
Secretariat Division at one of the addresses shown below on or before
January 30, 2017 to be considered in the formulation of a final rule.
ADDRESSES: Submit comments in response to FAR case 2016-005 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by entering ``FAR Case
2016-005'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Comment Now'' that corresponds with ``FAR
Case 2016-005.'' Follow the instructions provided on the screen. Please
include your name, company name (if any), and ``FAR Case 2016-005'' on
your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division, ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite ``FAR Case 2016-
005: Effective Communication between Government and Industry'' in all
correspondence related to this case. Comments received generally will
be posted without change to http://www.regulations.gov, including any
personal and/or business confidential information provided. To confirm
receipt of your comment(s), please check www.regulations.gov,
approximately two to three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case
2016-005.''
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA (the ``Councils'') are proposing to amend the
FAR to implement section 887 of NDAA for FY 2016. The rule clarifies
that agency acquisition personnel are permitted and encouraged to
engage in responsible and constructive exchanges with industry, in a
manner that is consistent with existing law and regulation, and does
not promote an unfair competitive advantage.
FAR 1.102 establishes the guiding principles within the FAR to--
(1) Satisfy the customer in terms of cost, quality, and timeliness
of the delivered product or service;
(2) Minimize administrative operating costs;
(3) Conduct business with integrity, fairness, and openness; and
(4) Fulfill public policy objectives.
FAR 1.102-2 provides the requirements or ``performance standards''
for transforming these principles into positive, results-oriented
acquisition strategies. A communication policy that takes into account
a range of approaches for effectively describing the Government's
requirements to private industry is an essential component of the
Federal acquisition process. This concept is in keeping with the
direction expressed by Congress in section 887 of the NDAA for FY 2016.
II. Discussion and Analysis
The proposed rule will amend FAR 1.102-2(a)(4) to specifically
state that Government acquisition personnel are permitted and
encouraged to engage in responsible and constructive exchanges with
industry, so long as those exchanges are consistent with existing laws
and regulations, and promote a fair competitive environment. This
revision,
[[Page 85915]]
coupled with the existing guidance in the FAR subpart 1.1 and the
market research strategies set forth in FAR part 10, will better equip
Federal acquisition officials with the information needed to issue
high-quality solicitations.
III. Public Feedback
In the winter of 2011, the Office of Federal Procurement Policy
(OFPP) launched a campaign to address misconceptions commonly held by
industry and Government regarding the role of communication during the
acquisition process in order to encourage early, frequent, and
constructive engagement with industry to achieve better acquisition
outcomes. The first of two ``myth-busting'' memoranda, issued in
February 2011, focused on misconceptions on the part of Federal
agencies and a second memorandum, issued in May 2012, addressed
misconceptions that may be held by some in the vendor community. Both
memoranda described best practices for effective communication that
have been put into use by the acquisition community, with good results.
Copies of these memoranda, ``Myth-Busting: Addressing Misconceptions to
Improve Communication with Industry during the Acquisition Process''
and ``Myth-Busting 2: Addressing Misconceptions and Further Improving
Communication During the Acquisition Process,'' are available at
https://www.whitehouse.gov/omb/procurement_index_memo. The Councils
seek to continue the conversation initiated by these memoranda and
welcome any suggestions from the public to further enhance open
communication between industry and the Federal acquisition community.
The Councils specifically request information regarding the following:
Which phase(s) of the Federal acquisition process--i.e.,
acquisition planning/market research; solicitation/award; post award--
would benefit from more exchanges with industry and what specific
policies or procedures would enhance communication during these phases?
Is there a current FAR policy that may inhibit
communication? If so, what is the policy, and how could this policy be
revised to remove barriers to effective communication?
Might it be beneficial to encourage, or require,
contracting officers to conduct discussions with offerors after
establishing the competitive range for contracts of a high dollar
threshold? If so, what would be the appropriate dollar threshold?
IV. Executive Order 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
V. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect the 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 proposed changes relate to internal Government
business practices. However, an Initial Regulatory Flexibility Analysis
(IRFA) has been prepared and is summarized as follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement section 887 of the
National Defense Authorization Act (NDAA) for FY 2016, which
provides that agency acquisition personnel are permitted and
encouraged to engage in responsible and constructive exchanges with
industry. Any effect to small businesses should be positive in that
industry, including small business, will benefit from better
communication with the Government. Based on data obtained from the
Federal Procurement Data System--Next Generation (FPDS-NG) on June
21, 2016, approximately 112,150 businesses received Federal
contracts during fiscal year 2015, and of these, approximately
75,000 or 67 percent were small businesses.
This rule does not impose any new reporting, recordkeeping or
other compliance requirements. The rule does not duplicate, overlap,
or conflict with any other Federal rules.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this proposed rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this
proposed rule consistent with 5 U.S.C. 610. Interested parties must
submit such comments separately and should cite 5 U.S.C. 610 (FAR Case
2016-005) in correspondence.
VI. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 1
Government procurement.
Dated: November 21, 2016.
William F. Clark,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part 1
as set forth below:
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
0
1. The authority citation for 48 CFR part 1 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
0
2. Amend section 1.102-2 by--
0
a. Revising paragraph (a)(4);
0
b. Redesignating paragraphs (a)(5) through (7) as paragraphs (a)(6)
through (8), respectively; and
0
c. Adding a new paragraph (a)(5).
The revision and addition read as follows:
1.102-2 Performance standards.
(a) * * *
(4) The Government must not hesitate to communicate with the
commercial sector as early as possible in the acquisition cycle to help
the Government determine the capabilities available in the commercial
marketplace. Government acquisition personnel are permitted and
encouraged to engage in responsible and constructive exchanges with
industry as part of market research (see 10.002), so long as those
exchanges are consistent with existing laws, regulations, and promote a
fair competitive environment.
(5) The Government will maximize its use of commercial products and
services in meeting Government requirements.
* * * * *
[FR Doc. 2016-28450 Filed 11-28-16; 8:45 am]
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