[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Proposed Rules]
[Pages 48271-48273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-20669]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 13, 15, and 16
[FAR Case 2017-010; Docket No. 2017-0009; Sequence No. 1]
RIN 9000-AN54
Federal Acquisition Regulation: Evaluation Factors for Multiple-
Award Contracts
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) 2017.
DATES: Interested parties should submit comments to the Regulatory
Secretariat Division at one of the addresses shown below on or before
November 23, 2018 to be considered in the formulation of a final rule.
ADDRESSES: Submit comments in response to FAR Case 2017-010 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by entering
``FAR Case 2017-010'' under the heading ``Enter Keyword or ID'' and
selecting ``Search''. Select the link ``Comment Now'' that corresponds
with ``FAR Case 2017-010''. Follow the instructions provided on the
screen. Please include your name, company name (if any), and ``FAR Case
2017-010'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division, ATTN: Lois Mandell, 1800 F Street NW, 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite ``FAR case 2017-
010'' 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
2017-010.''
SUPPLEMENTARY INFORMATION:
I. Background
Section 825 of the NDAA for FY 2017 (Pub. L. 114-328) amends 10
U.S.C. 2305(a)(3) to modify the requirement to consider cost or price
as an evaluation factor for the award for certain multiple-award task
order contracts issued by DoD, NASA, or the Coast Guard. Section 825
provides that, at the Government's discretion, solicitations for
multiple-award contracts for the same or similar services that state
the Government
[[Page 48272]]
intends to award a contract to each qualifying offeror do not require
price or cost as an evaluation factor for contract award. This
exception does not apply to solicitations for multiple-award contracts
that provide for sole source orders pursuant to section 8(a) of the
Small Business Act (15 U.S.C. 637(a)). When cost or price is not
evaluated during contract award, the contracting officer shall consider
price or cost as a factor for the award of each order under the
contract. Section 825 of the NDAA for FY 2017 also amends 10 U.S.C.
2304c(b) to add exemptions for the use of competitive procedures when
placing an order under a multiple-award contract.
II. Discussion and Analysis
This rule proposes to amend the FAR, as follows:
FAR parts 13 and 15 are revised to add, for use by DoD,
NASA, or the Coast Guard, the exception to requiring price or cost as
an evaluation factor in solicitations valued above the simplified
acquisition threshold for multiple-award contracts for the same or
similar services when the Government intends to award a contract to
each and all qualifying offerors; explain what a qualifying offeror is
in terms of the rule; and clarify that the exception shall not apply to
solicitations for multiple-award contracts that provide for sole source
orders pursuant to section 8(a) of the Small Business Act (15 U.S.C.
637(a)).
FAR part 16 is revised to add, for use by DoD, NASA, or
the Coast Guard, the exceptions for use of other than full and open
competition, listed in FAR 6.302, to the list of exceptions to fair
opportunity at FAR 16.505(b)(2).
III. Expected Impact of the Proposed Rule and Proposed Cost Savings
Currently, offerors on solicitations for multiple-award contracts
for services are required to submit cost or price information with
their proposals in order to be eligible for award. The time and effort
that offerors expend to produce this cost or price information varies
according to numerous factors, such as the proposed contract type, the
source selection approach, or the offeror's internal processes and
resources.
Upon implementation of a final rule, contracting officers from DoD,
NASA, and the Coast Guard may choose not to include cost or price as an
evaluation factor in solicitations for multiple-award contracts for
services, as long as an award will be made to each and all qualified
offerors. As a result, offerors responding to these solicitations will
not incur costs to develop and prepare the cost or price information
typically required to be eligible for contract award. Subsequently, the
FAR also requires cost and price information to be evaluated before the
award of an order placed under a multiple-award contract. This rule
does not impact that process. As this rule, when utilized, will remove
a burden from offerors and does not implement any new requirements on
offerors, DoD, GSA, and NASA consider this rule to be deregulatory.
In an attempt to monetize an offeror's cost savings as a result of
this rule, DoD, GSA, and NASA seek input from service contractors that
could be impacted by this rule. In particular, DoD, GSA, and NASA
welcome feedback on (i) the type of personnel (e.g., accountants or
program managers) used to develop and prepare cost or price information
for proposals on multiple-award service contracts; (ii) the number of
hours (in a range) that would be spent by each type of personnel to
develop and prepare the cost or price information for such a proposal;
and (iii) the average hourly rate for each type of personnel used to
develop and prepare the cost or price information for such a proposal,
or the total average amount spent for each type of personnel to develop
and prepare the cost or price information for such a proposal. Please
identify the types of services you typically submit proposals for and
whether or not your efforts/costs to provide cost or price information
vary depending on different factors related to the solicitation (e.g.,
contract type or service type). If you do experience a variation in
your efforts/costs to provide cost or price information, please
describe these variations in your efforts/cost, to the extent possible,
in your response.
IV. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
No contract clauses or solicitation provisions are being created or
revised by this rule.
V. 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.
VI. Executive Order 13771
This rule is not subject to E.O. 13771, because this rule is not a
significant regulatory action under E.O. 12866. However, as explained
in Section III of this preamble, DoD, GSA, and NASA believe the rule is
deregulatory and seek public input on this preliminary determination,
as well as information that can help monetize any savings.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this 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.
However, an Initial Regulatory Flexibility Analysis (IRFA) has been
performed and is summarized as follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement section 825 of the
National Defense Authorization Act (NDAA) for FY 2017 (Pub. L. 114-
328; 10 U.S.C. 2305(a)(3) and 10 U.S.C. 2304c(b)(5)).
The objective of this proposed rule is to implement section 825
of the NDAA for FY 2017.
This rule is not expected 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. There were 3,963
new multiple-award contracts for services awarded in Fiscal Year
2016, and 2,810 (71 percent) of these actions were awarded to small
business. The proposed rule applies to all entities who do business
with the Federal Government, but it is not expected to have a
significant impact.
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. There are no known
significant alternative approaches to the proposed rule that would
meet the requirements of the applicable statute.
The Regulatory Secretariat 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. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in
[[Page 48273]]
subparts affected by this 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 2017-010) in correspondence.
VIII. Paperwork Reduction Act
This proposed 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 Parts 13, 15, and 16
Government procurement.
Dated: September 18, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts
13, 15, and 16 as set forth below:
0
1. The authority citation for 48 CFR parts 13, 15, and 16 continues to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
2. Amend 13.106-1 by revising paragraph (a)(2) to read as follows:
13.106-1 Soliciting competition.
(a) * * *
(2)(i) When soliciting quotations or offers, the contracting
officer shall notify potential quoters or offerors of the basis on
which award will be made (price alone or price and other factors, e.g.,
past performance and quality).
(ii) Contracting officers are encouraged to use best value.
(iii) Solicitations are not required to state the relative
importance assigned to each evaluation factor and subfactor, nor are
they required to include subfactors.
(iv) For DoD, NASA, and the Coast Guard--
(A) When issuing a solicitation valued above the simplified
acquisition threshold for a multiple-award contract for the same or
similar services and the solicitation states that the Government
intends to make an award to each and all qualifying offerors, the
contracting officer may choose not to include price or cost as an
evaluation factor for the contract award (10 U.S.C. 2305(a)(3));
(B) Whether or not cost or price is evaluated at contract award,
the contracting officer shall consider price or cost as one of the
factors in the selection decision for each order (see 16.505);
(C) A qualifying offeror is an offeror that is determined to be a
responsible source, submits a technically acceptable proposal that
conforms to the requirements of the solicitation, and the contracting
officer has no reason to believe would be likely to offer other than
fair and reasonable pricing (10 U.S.C. 2305(a)(3)); and
(D) The exception at 13.106-1(a)(2)(iv)(A) shall not apply to
solicitations for multiple-award contracts that provide for sole source
orders pursuant to section 8(a) of the Small Business Act (15 U.S.C.
637(a)).
PART 15--CONTRACTING BY NEGOTIATION
0
3. Amend 15.304 by revising paragraph (c)(1) and paragraph (e)
introductory text to read as follows:
15.304 Evaluation factors and significant subfactors.
* * * * *
(c) * * *
(1)(i) Price or cost to the Government shall be evaluated in every
source selection (10 U.S.C. 2305(a)(3)(A)(ii) and 41 U.S.C.
3306(c)(1)(B)) (also see part 36 for architect-engineer contracts),
subject to the exception listed in paragraph (c)(1)(ii) of this section
for use by DoD, NASA, and the Coast Guard.
(ii) For DoD, NASA, and the Coast Guard--
(A) When issuing a solicitation valued above the simplified
acquisition threshold for a multiple-award contract for the same or
similar services and the solicitation states that the Government
intends to make an award to each and all qualifying offerors, the
contracting officer may choose not to include price or cost as an
evaluation factor for the contract award (10 U.S.C. 2305(a)(3));
(B) Whether or not cost or price is evaluated at contract award,
the contracting officer shall consider price or cost as one of the
factors in the selection decision for each order (see 16.505);
(C) A qualifying offeror is an offeror that is determined to be a
responsible source, submits a technically acceptable proposal that
conforms to the requirements of the solicitation, and the contracting
officer has no reason to believe would be likely to offer other than
fair and reasonable pricing (10 U.S.C. 2305(a)(3)); and
(D) The exception in paragraph (c)(1)(ii)(A) of this section shall
not apply to solicitations for multiple-award contracts that provide
for sole source orders pursuant to section 8(a) of the Small Business
Act (15 U.S.C. 637(a));
* * * * *
(e) Unless the exception at 15.304(c)(1)(ii)(A) of this section
applies, the solicitation shall also state, at a minimum, whether all
evaluation factors other than cost or price, when combined, are--
* * * * *
PART 16--TYPES OF CONTRACTS
0
4. Amend 16.505 by adding paragraph (b)(2)(i)(G) to read as follows:
16.505 Ordering.
* * * * *
(b) * * *
(2) * * *
(i) * * *
(G) For DoD, NASA, and the Coast Guard, the order satisfies one of
the exceptions permitting the use of other than full and open
competition listed in 6.302 (10 U.S.C. 2304c(b)(5)). The public
interest exception shall not be used unless Congress is notified in
accordance with 10 U.S.C. 2304(c)(7).
* * * * *
[FR Doc. 2018-20669 Filed 9-21-18; 8:45 am]
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