[Federal Register Volume 85, Number 179 (Tuesday, September 15, 2020)]
[Proposed Rules]
[Pages 57177-57180]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-18375]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1 and 52

[FAR Case 2017-014, Docket No. FAR-2017-0014, Sequence No. 1]
RIN 9000-AN43


Federal Acquisition Regulations: FAR Case 2017-014, Use of 
Acquisition 360 To Encourage Vendor Feedback

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

[[Page 57178]]

Acquisition Regulation (FAR) to encourage use of voluntary feedback 
mechanisms, where appropriate, to support continual improvement of the 
acquisition process.

DATES: Interested parties should submit written comments at the address 
shown below on or before November 16, 2020 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2017-014 to http://www.regulations.gov. Submit comments via the Federal eRulemaking portal 
by searching for ``FAR Case 2017-014''. Select the link ``Comment Now'' 
that corresponds with ``FAR Case 2017-014''. Follow the instructions 
provided at the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2017-014'' on your attached 
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR 
FURTHER INFORMATION CONTACT section of this document for alternate 
instructions.
    Instructions: Please submit comments only and cite ``FAR case 2017-
014'' 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.

FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement 
Analyst, at 202-501-1448, or by email at [email protected], for 
clarification of content. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAR Case 2017-014.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA and NASA are proposing to revise the FAR to encourage use 
of voluntary feedback mechanisms, where appropriate, to support 
continual improvement of the acquisition process. These mechanisms were 
largely developed through pilot efforts conducted in accordance with 
the Office of Federal Procurement Policy (OFPP) memorandum 
``Acquisition 360--Improving the Acquisition Process through Timely 
Feedback from External and Internal Stakeholders.'' The memorandum 
established the Acquisition 360 Survey tool, a voluntary online survey 
to elicit industry feedback on the pre-award and debriefing processes 
in a consistent and standardized manner.
    An advanced notice of proposed rulemaking (ANPR) was published at 
83 FR 34820 on July 23, 2018, to obtain public input regarding matters 
related to contractor feedback, the overall cost of compliance and any 
specific regulatory requirements that are particularly burdensome. The 
proposed Acquisition 360 survey questions were also posted as part of 
the rulemaking.

II. Discussion and Analysis

    This proposed rule seeks to amend FAR part 1, adding a new section 
at FAR 1.102-3, Evaluating agency acquisition processes, which 
encourages agencies to develop internal procedures to seek voluntary 
feedback from interested parties in the acquisition process. 
Contracting officers are encouraged to use a new provision at 52.201-
XX, Acquisition 360: Voluntary Survey, to solicit feedback from actual 
and potential offerors, in accordance with agency procedures.
    The proposed revisions are intended to implement a standard process 
for obtaining voluntary feedback on various aspects of the acquisition 
process. While use of feedback is encouraged, DoD, GSA, and NASA 
appreciate that tailored solicitation of feedback may be more 
manageable and useful than blanket application and, for this reason, 
have crafted the proposed rule to provide agencies the flexibility to 
target specific types of requirements or aspects of the acquisition 
lifecycle where feedback may be most helpful to the agency and its 
efforts to drive continual process improvements. The feedback will be 
anonymous, unless the participant self-identifies in the survey.
    The proposed text is moved to FAR part 1 from parts 5 and 42 
because the survey tool may be applied to procurements in general, as 
determined by agency procedure.

III. Applicability to Contracts At or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This proposed rule seeks to add a provision for a voluntary survey. 
The provision is not prescribed for any particular kind of procurement; 
agencies may include it in solicitations below the SAT and in 
solicitations for commercial items, including COTS. However, because it 
is voluntary, impact on offerors or contractors is expected to be 
minimal.

IV. Executive Orders 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 impact, 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 proposed rule is not a major 
rule under 5 U.S.C. 804.

V. Executive Order 13771

    This proposed rule is not expected to be subject to E.O. 13771, 
Reducing Regulation and controlling Regulatory Costs, because this rule 
is not a significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA 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. Nevertheless, an Initial Regulatory Flexibility Analysis (IRFA) 
has been prepared and is summarized as follows:

    The reason for this proposed rule is to encourage use of 
voluntary feedback mechanisms, where appropriate, to support 
continual improvement of the acquisition process. The use of the 
voluntary Acquisition 360 survey is one mechanism to elicit feedback 
on the pre-award and debriefing processes in a consistent and 
standardized manner.
    The objective of the rule is to encourage agency use of the 
Acquisition 360 survey tool in accordance with agency procedures, to 
obtain feedback from offerors which may be used to improve their 
acquisition processes. The Office of Management and Budget is 
providing and hosting the centralized survey portal which will 
facilitate data access and analysis across the Government. The legal 
basis for the proposed rule is 40 U.S.C. 121(c), 10 U.S.C. chapter 
137, and 51 U.S.C. 20113.
    Data generated from the Federal Procurement Data System (FPDS) 
and the System for Award Management (SAM) have been used as the 
basis for estimating the number of small entities affected by this 
rule. Currently, there are approximately 327,000 small entities 
registered in SAM that were small in at least one North American 
Industry Classification Systems (NAICS) code. The rule, therefore, 
will potentially impact all 327,000 small entities.

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    In order to estimate the likely number of small entities 
impacted by the rule, we used the average of FPDS data for fiscal 
years (FY) 2017, 2018, and 2019. Examination of the data reveals 
that the number of unique small entities that received contract 
awards was 60,912. DoD, GSA, and NASA estimate that each unique 
small entity would respond to approximately 3 solicitations, 
equating to 182,736 potential offers. It is anticipated that 33 
percent of these potential offerors will submit a response to the 
survey based upon the outcome of a previous OFPP-conducted pilot. 
Based upon this data, it is anticipated that 60,302 small entities 
will likely be affected by the rule.
    The proposed rule encourages potential offerors to provide 
feedback at https://www.acquisition.gov/360 on agency acquisition 
processes.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There were other alternatives considered, to include the status 
quo, for Government acquisition officials to elicit feedback from 
their contractors, such as vendor outreach with industry days on the 
agency's performance of its contract administration 
responsibilities; however, these would not accomplish the stated 
objective of the rule nor would they minimize the economic impact of 
the rule on small entities.

    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 
2017-014) in correspondence.

VII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies as this 
proposed rule contains information collection requirements. 
Accordingly, the Regulatory Secretariat Division has submitted a 
request for approval of a new information collection requirement 
concerning the Voluntary Pre-award Survey.
    A. The public reporting burden for this collection of information 
is estimated at 10 minutes per response to the voluntary online survey. 
This estimate includes entering the online portal and providing input 
to as few as one or as many as 18 questions, as determined by the 
respondent.
    This new information collection uses the common form method to 
calculate the public burden hours. GSA data is provided to estimate the 
initial burden information for the collection. In the future, each 
executive branch agency will provide information on the agency use and 
contractor participation in the voluntary survey. This information will 
be included in the renewal of the collection at that time.
    The annual reporting burden is estimated as follows:
    *Respondents: 4,573.
    *Responses per respondent: 1.
    *Total annual responses: 4,573.
    *Preparation hours per response: .1667.
    *Total response burden hours: 762.
    B. Request for Comments Regarding Paperwork Burden.
    As part of this proposed rulemaking, the FAR Council is soliciting 
comments from the public in order to:
    Evaluate whether this collection of information is necessary for 
the proper performance of functions of the FAR, including whether the 
information will have practical utility;
    Evaluate the accuracy of the FAR Council's estimate of the burden 
of the collection of information, including the validity of the 
methodology and assumptions used;
    Enhance the quality, utility, and clarity of the information to be 
collected; and
    Minimize the burden of the collection of information on those who 
are to respond, including through the use of appropriate collection 
techniques or other forms of information technology.
    Organizations and individuals desiring to submit comments on the 
information collection requirements associated with this rulemaking 
should submit comments, including suggestions for reducing this burden, 
not later than November 16, 2020 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, Regulatory Secretariat Division (MVCB), ATTN: Lois 
Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 20405-0001.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat Division 
(MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 
20405-0001. Please cite OMB Control Number 9000-XXXX.

List of Subjects in 48 CFR Parts 1 and 52.

    Government procurement.

William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 1 and 
52 as set forth below:

0
1. The authority citation for 48 CFR parts 1 and 52 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.102-3 and 1.102-4   [Redesignated]

0
2. Redesignate sections 1.102-3 and 1.102-4 as sections 1.102-4 and 
1.102-5.
0
3. Add new section 1.102-3 to read as follows:


1.102-3   Evaluating agency acquisition processes.

    (a) Agencies are encouraged to develop internal procedures seeking 
voluntary feedback from interested parties in an acquisition to assess 
process strengths and weaknesses and improve effectiveness and 
efficiency of the acquisition process. Agencies may--
    (1) Utilize a variety of feedback mechanisms available to the 
public (e.g., surveys, in-person, and/or group exchanges);
    (2) Utilize the core pre-award and debriefing survey questions at 
https://www.acquisition.gov/360; and
    (3) Seek additional feedback on targeted aspects of an acquisition 
throughout its lifecycle (e.g., performance standards at 1.102(b) or 
post-award contract administration responsibilities at 42.302).
    (b) Contracting officers are encouraged to insert the provision 
52.201-XX, Acquisition 360: Voluntary Survey, in accordance with agency 
procedures.
    (c) Contracting officers shall not review information until after 
contract award and shall not consider it in the award decision.
0
4. In section 1.106, amend the table by adding an entry for ``52.201-
XX'' in numerical order to read as follows:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

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                                                            OMB control
                       FAR segment                              No.
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                                * * * * *
52.201-XX...............................................       9000-XXXX
 
                                * * * * *
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1.108   [Amended]

0
5. Amend section 1.108 by removing from paragraph (b) ``1.102-4(b)'' 
and adding ``1.102-5(b)'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
6. Add section 52.201-XX to read as follows:


52.201-XX   Acquisition 360: Voluntary Survey.

    As prescribed in 1.102-3(b), insert the following provision:

Acquisition 360: Voluntary Survey (DATE)

    (a) All actual and potential offerors are encouraged to provide 
feedback on the preaward and debriefing process. Feedback may be 
provided to agencies up to 45 days after award. The feedback is 
anonymous, unless the participant self-identifies in the survey. 
Actual and potential offerors can participate in the survey by 
selecting the following link: https://www.acquisition.gov/360.
    (b) The Contracting Officer will not review the information 
provided until after contract award and will not consider it in the 
award decision. The survey is voluntary and does not convey any 
protections, rights, or grounds for protest. It creates a way for 
actual and potential offerors to provide the Government constructive 
feedback about the pre-award and debriefing process on a specific 
acquisition.

[FR Doc. 2020-18375 Filed 9-14-20; 8:45 am]
BILLING CODE 6820-EP-P