[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
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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:
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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]
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2. Redesignate sections 1.102-3 and 1.102-4 as sections 1.102-4 and
1.102-5.
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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.
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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]
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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
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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]
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