[Federal Register Volume 87, Number 53 (Friday, March 18, 2022)]
[Rules and Regulations]
[Pages 15808-15812]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-05531]



[[Page 15807]]

Vol. 87

Friday,

No. 53

March 18, 2022

Part IV





 Department of Defense





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Defense Acquisition Regulations System





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48 CFR Parts 204, 208, 209, et al.





Defense Federal Acquisition Regulations; Final Rules and Proposed Rule

  Federal Register / Vol. 87 , No. 53 / Friday, March 18, 2022 / Rules 
and Regulations  

[[Page 15808]]


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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 212, 215, 216, 233, and 252

[Docket DARS-2021-0010]
RIN 0750-AJ73


Defense Federal Acquisition Regulation Supplement: Postaward 
Debriefings (DFARS Case 2018-D009)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Final rule.

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SUMMARY: DoD is issuing a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2018 that provides 
enhanced postaward debriefing rights under negotiated contracts, task 
orders, and delivery orders.

DATES: Effective March 18, 2022.

FOR FURTHER INFORMATION CONTACT: Ms. Kimberly Ziegler, telephone 571-
372-6095.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD published a proposed rule in the Federal Register at 86 FR 
27354 on May 20, 2021, to implement section 818 of the National Defense 
Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 115-91). 
Section 818 amends 10 U.S.C. 2305 to enhance postaward debriefing 
rights for competitive negotiated contracts, task orders, and delivery 
orders that exceed $10 million and to provide offerors the opportunity, 
upon receiving a postaward debriefing, to submit follow-up questions 
related to the debriefing and to receive agency responses. Section 818 
also amends 31 U.S.C. 3553(d)(4) to delay the beginning of the 
timeframe during which the contracting officer shall immediately 
suspend contract performance or terminate the awarded contract if a 
protest is filed. These changes may also impact the timeframe for 
filing a timely protest. Four respondents submitted public comments in 
response to the proposed rule.

II. Discussion and Analysis

    DoD reviewed the public comments in the development of the final 
rule. A discussion of the comments and the changes made to the rule as 
a result of those comments is provided, as follows:

A. Summary of Significant Changes From the Proposed Rule

    Edits were made to the proposed rule to clarify the time periods 
for requesting, delivering, and completing the postaward debriefing, 
including the impact of additional questions on the timely submission 
of protests to the Government Accountability Office (GAO). Conforming 
edits were made to the time periods associated with protests to the GAO 
and in the solicitation provision and contract clause.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: Some respondents supported the rule.
    Response: DoD acknowledges the support.
2. Clarification of Protest Timeline
    Comment: Some respondents requested that DoD clarify the timelines 
for additional questions as it pertains to the protest window.
    Response: DoD has simplified the text throughout the final rule to 
address potential confusion and adopt the plain language interpretation 
in Nika Technologies Inc. v. United States, United States Court of 
Appeals for the Federal Circuit, decided February 4, 2021. The final 
rule is revised to clarify that, for DoD, the 5-day protest window at 
Federal Acquisition Regulation (FAR) 33.104 begins on the date that the 
postaward debriefing is offered, unless additional questions are 
received within 2 business days after the debriefing date. If the 
agency receives timely additional questions from the offeror, the 
agency will respond in writing within 5 business days. Upon delivery of 
the agency response, the 5-day protest window will begin.
3. Expansion to Successful Offerors
    Comment: One respondent expressed concerns that the proposed rule 
expands the requirement to provide a postaward debriefing to successful 
offerors, although section 818 only requires a debriefing of 
disappointed offerors.
    Response: The proposed rule does not expand the requirement for 
postaward debriefings to successful offerors, because the FAR already 
provides for postaward debriefings to both successful and unsuccessful 
offerors at FAR 15.506(b).
4. Untimely Additional Questions
    Comment: One respondent recommended that additional questions be 
permitted more than 2 days after the debriefing and answered 
voluntarily without impacting the process.
    Response: While contracting officers have the discretion to 
voluntarily answer questions received after the postaward debriefing is 
concluded, the statute requires a response to only those questions 
received within 2 business days after the postaward debriefing.
5. Source Selection Decision Document Release
    Comment: One respondent recommended DoD provide the source 
selection decision document prior to the postaward debriefing, because 
it may result in more relevant questions and fewer requests for 
debriefings.
    Response: The statute provides that certain offerors requesting a 
debriefing in accordance with FAR 15.506 are eligible to receive a 
redacted source selection decision document as part of the postaward 
debriefing. As a result of section 818, debriefed offerors will have 
the opportunity to submit additional follow-up questions about the 
debriefing, including questions about the source selection decision 
document.
6. Document Redaction Standards
    Comment: One respondent expressed concerns that the quality of 
redactions is inconsistent and suggested that strict standards be set 
for redacting source selection documentation to protect proprietary 
information before implementing this policy change.
    Response: Establishing additional redaction guidelines beyond those 
already in the FAR is outside scope of this rule.

C. Other Changes

    The final rule also--
     Corrects the location of the online annual representations 
and certifications in the System for Award Management at DFARS 
212.301(f) to reflect https://www.sam.gov;
     Redesignates DFARS 216.506 paragraph (S-70) as 216.506-70 
paragraph (a); and
     At 215.570 and 216.506-70 clarifies that the prescriptions 
for the new DFARS provision and clause apply to acquisitions valued at 
$10 million or more.

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

    This final rule creates one new solicitation provision at 252.215-
7016, Notification to Offerors--Postaward Debriefings, for use in 
competitive

[[Page 15809]]

negotiated solicitations, and one new contract clause at 252.216-7010, 
Postaward Debriefings for Task Orders and Delivery Orders, for use in 
multiple-award contracts. DoD is not applying the rule to contracts and 
subcontracts valued at or below the SAT. DoD is applying the rule to 
contracts for the acquisition of commercial products including COTS 
items and for the acquisition of commercial services.

A. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT)

    41 U.S.C 1905 governs the applicability of laws to contracts or 
subcontracts in amounts not greater than the SAT. It is intended to 
limit the applicability of laws to such contracts or subcontracts. 41 
U.S.C. 1905 provides that if a provision of law contains criminal or 
civil penalties, or if the Federal Acquisition Regulatory Council (FAR 
Council) makes a determination that it is not in the best interest of 
the Federal Government to exempt contracts or subcontracts at or below 
the SAT, the law will apply to them. The Principal Director, Defense 
Pricing and Contracting (DPC), is the appropriate authority to make 
comparable determinations for regulations to be published in the DFARS, 
which is part of the FAR system of regulations. DoD did not make that 
determination. Therefore, this rule does not apply below the SAT.

B. Applicability to Contracts for the Acquisition of Commercial 
Products Including Commercially Available Off-the-Shelf (COTS) Items 
and for the Acquisition of Commercial Services

    10 U.S.C. 2375 governs the applicability of laws to DoD contracts 
and subcontracts for the acquisition of commercial products including 
COTS items and for the acquisition of commercial services, and is 
intended to limit the applicability of laws to contracts for the 
acquisition of commercial products including COTS items and for the 
acquisition of commercial services. 10 U.S.C. 2375 provides that if a 
provision of law contains criminal or civil penalties, or if the Under 
Secretary of Defense for Acquisition and Sustainment (USD(A&S)) makes a 
written determination that it is not in the best interest of the 
Federal Government to exempt commercial product contracts and 
commercial service contracts, the provision of law will apply to 
contracts for the acquisition of commercial products and commercial 
services. Due to delegations of authority from USD(A&S), the Principal 
Director, DPC is the appropriate authority to make this determination. 
DoD has made that determination. Therefore, this rule does apply to the 
acquisition of commercial products including COTS items and to the 
acquisition of commercial services, if otherwise applicable.

C. Determination

    Given that the requirements of section 818 apply to contracts 
valued at $10 million or higher, DoD will not apply the requirements of 
section 818 to contracts valued at or below the SAT. However, DoD will 
apply the requirements of section 818 to negotiated procurements and 
contracts for the acquisition of commercial products including COTS 
items and for the acquisition of commercial services.
    It is not in the best interest of the Federal Government to exempt 
application of this rule to commercial products including COTS items 
and to commercial services, for the following reasons. Implementation 
of section 818 affords offerors the opportunity for enhanced postaward 
debriefings for contracts, task orders, and delivery orders that exceed 
$10 million. Implementation provides offerors the opportunity, upon 
receiving a postaward debriefing, to submit follow-up questions related 
to the debriefing and to receive an agency response. These enhanced 
postaward debriefing requirements will assist in developing small 
business capabilities, provide increased participation, and promote 
competition. Properly conducted postaward debriefings with this 
enhanced transparency may minimize the number of unnecessary protests 
filed while strengthening relationships between DoD and industry.
    Applying these requirements to the acquisition of commercial 
products and commercial services does not increase the burden on 
offerors, since the rule only enhances existing requirements concerning 
postaward debriefings. Exclusion of acquisitions of commercial products 
including COTS items and of commercial services would greatly limit 
access to the benefits afforded to successful and unsuccessful offerors 
by the section 818 requirements.

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 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.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD will submit a copy of 
the interim or final rule with the form, Submission of Federal Rules 
under the Congressional Review Act, to the U.S. Senate, the U.S. House 
of Representatives, and the Comptroller General of the United States. A 
major rule under the Congressional Review Act cannot take effect until 
60 days after it is published in the Federal Register. The Office of 
Information and Regulatory Affairs has determined that this rule is not 
a major rule as defined by 5 U.S.C. 804.

VI. Regulatory Flexibility Act

    A final regulatory flexibility analysis (FRFA) has been prepared 
consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. 
The FRFA is summarized as follows:
    This rule amends the DFARS to implement section 818 of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2018 (Pub. L. 
115-91), which provides offerors and contractors with significantly 
enhanced written or oral debriefing information for negotiated 
contracts and task orders or delivery orders that exceed $100 million, 
and the opportunity for small entities and nontraditional defense 
contractors to obtain such information for awards that exceed $10 
million but do not exceed $100 million.
    The objective of the rule is to ensure offerors are provided a 
standard written or oral postaward debriefing at the dollar thresholds 
in the statute, while protecting the confidential and proprietary 
information of other offerors. The statute also provides direction to 
contracting officers when notified that a protest has been received by 
the Government Accountability Office.
    There were no significant issues raised by the public in response 
to the initial regulatory flexibility analysis.
    This rule is not expected to have a significant economic impact on 
a substantial number of small entities, because the enhanced ability to 
obtain source selection information for actions over $10 million by 
submitting questions is voluntary. However,

[[Page 15810]]

obtaining such additional information may be helpful to entities 
competing on future actions.
    Data obtained from the Federal Procurement Data System for FYs 
2018, 2019, and 2020 indicate that DoD awarded an average of 
approximately 5,534 negotiated awards and delivery orders or task 
orders per year valued between $10 and $100 million. Of those actions, 
an average of 3,994 were awarded to approximately 1,543 unique small 
entities and 1,311 nontraditional defense contractors. Based upon that 
data, approximately 1,543 unique small entities will have the 
opportunity to request and obtain enhanced debriefing information if 
desired.
    This rule does not include any new reporting, recordkeeping, or 
other compliance requirements for small businesses.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no known significant alternative approaches to the rule 
that would meet the requirements of the statute.

VII. Paperwork Reduction Act

    The rule does not contain 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 212, 215, 216, 233, and 252

    Government procurement.

Jennifer D. Johnson,
Editor/Publisher, Defense Acquisition Regulations System.

    Therefore, 48 CFR parts 212, 215, 216, 233, and 252 are amended as 
follows:

0
1. The authority citation for 48 CFR parts 212, 215, 216, 233, and 252 
continues to read as follows:

    Authority:  41 U.S.C. 1303 and 48 CFR chapter 1.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

0
2. Amend section 212.301 by--
0
a. In paragraph (f) introductory text, removing ``https://www.acquisition.gov'' and adding ``https://www.sam.gov'' in its place;
0
b. Adding paragraph (f)(vi)(F);
0
c. Redesignating paragraphs (f)(vii) through (xviii) as paragraphs 
(f)(viii) through (xix); and
0
d. Adding new paragraph (f)(vii).
    The additions read as follows:


212.301   Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (f) * * *
    (vi) * * *
    (F) Use the provision at 252.215-7016, Notification to Offerors--
Postaward Debriefings, as prescribed in 215.570, to comply with section 
818 of the National Defense Authorization Act for Fiscal Year 2018 
(Pub. L. 115-91).
    (vii) Part 216--Types of Contracts. Use the clause at 252.216-7010, 
Postaward Debriefings for Task Orders and Delivery Orders, as 
prescribed in 216.506-70(b), to comply with section 818 of the National 
Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-91).
* * * * *

PART 215--CONTRACTING BY NEGOTIATION

0
3. Amend section 215.506 by adding paragraphs (b) and (d) to read as 
follows:


215.506   Postaward debriefing of offerors.

    (b) Notwithstanding FAR 15.506(b), when requested by a successful 
or unsuccessful offeror, a written or oral debriefing is required for 
contract awards valued at $10 million or more (section 818 of the 
National Defense Authorization Act for Fiscal Year 2018 (Pub. L. 115-
91)).
    (d) In addition to the requirements of FAR 15.506(d), the minimum 
debriefing information shall include the following:
    (i) For award of a contract in excess of $10 million and not in 
excess of $100 million with a small business or nontraditional defense 
contractor, an option for the small business or nontraditional defense 
contractor to request disclosure of the agency's written source 
selection decision document, redacted to protect the confidential and 
proprietary information of other offerors for the contract award.
    (ii) For award of a contract in excess of $100 million, disclosure 
of the agency's written source selection decision document, redacted to 
protect the confidential and proprietary information of other offerors 
for the contract award.
* * * * *

0
4. Add section 215.506-70 to read as follows:


215.506-70   Opportunity for follow-up questions.

    When providing a required postaward debriefing to successful and 
unsuccessful offerors, contracting officers shall--
    (a) Provide an opportunity to submit additional written questions 
related to the required debriefing not later than 2 business days after 
receiving the postaward debriefing;
    (b) Respond in writing to timely submitted additional questions 
within 5 business days after receipt of the questions; and
    (c) Not consider the postaward debriefing to be concluded until the 
later of--
    (1) The date that the postaward debriefing is delivered, orally or 
in writing; or
    (2) If additional written questions related to the debriefing are 
timely received, the date the agency delivers its written response.

0
5. Add section 215.570 to read as follows:


215.570   Solicitation provision.

    Use the provision at 252.215-7016, Notification to Offerors--
Postaward Debriefings, in competitive negotiated solicitations for 
contract awards valued at $10 million or more, including solicitations 
using FAR part 12 procedures for the acquisition of commercial items.

PART 216--TYPES OF CONTRACTS

0
6. Amend section 216.505 by adding paragraphs (b)(6) introductory text 
and (b)(6)(ii) to read as follows:


216.505   Ordering.

* * * * *
    (b) * * *
    (6) Postaward notices and debriefing of awardees for orders 
exceeding $6 million. In addition to the notice required at FAR 
16.505(b)(6), a written or oral postaward debriefing of successful and 
unsuccessful awardees is required for task orders and delivery orders 
valued at $10 million or more (section 818 of the National Defense 
Authorization Act for Fiscal Year 2018 (Pub. L. 115-91)).
    (ii) Follow the procedures at 215.506 and 215.506-70 when providing 
the postaward debriefing to successful and unsuccessful awardees for 
task orders or delivery orders valued at $10 million or more.

0
7. Revise section 216.506 to read as follows:


216.506  Solicitation provisions and contract clauses.

0
8. Add section 216.506-70 to read as follows:


216.506-70   Additional solicitation provisions and contract clause.

    (a) Use the provisions at 252.215-7007, Notice of Intent to 
Resolicit, and 252.215-7008, Only One Offer, as prescribed at 215.371-6 
and 215.408(3), respectively.

[[Page 15811]]

    (b) Use the clause at 252.216-7010, Postaward Debriefings for Task 
Orders and Delivery Orders, in competitive negotiated solicitations and 
contracts, including solicitations and contracts using FAR part 12 
procedures for the acquisition of commercial items, when a multiple-
award contract is contemplated and task orders or delivery orders 
placed under the contract may be valued at $10 million or more.

PART 233--PROTESTS, DISPUTES, AND APPEALS


233.102   [Amended]

0
9. Amend section 233.102 by removing ``Government Accountability 
Office'' and adding ``Government Accountability Office (GAO)'' in its 
place.

0
10. Add section 233.104 to read as follows:


233.104   Protests to GAO.

    (c) Protests after award. (1) In lieu of the time periods in FAR 
33.104(c)(1), contracting officers shall immediately suspend 
performance or terminate the awarded contract, task order, or delivery 
order upon notice from the GAO of a protest filed within the time 
periods listed in paragraphs (c)(1)(A) through (D) of this section, 
whichever is later, except as provided in FAR 33.104(c)(2) and (3)--
    (A) Within 10 days after the date of contract award;
    (B) Within 10 days after the date a task order or delivery order is 
issued, where the value exceeds $25 million (10 U.S.C. 2304c(e));
    (C) Within 5 days after a debriefing date offered to the protestor 
under a timely debriefing request in accordance with FAR 15.506 
regardless of whether the protestor rejected the offered debriefing 
date, unless an earlier debriefing date is negotiated as a result; or
    (D) Within 5 days after a postaward debriefing under FAR 15.506 is 
concluded in accordance with 215.506-70(b).


233.171  [Amended]

0
11. Amend section 233.171 by removing ``Government Accountability 
Office'' and adding ``GAO'' in its place.

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
12. Add section 252.215-7016 to read as follows:


252.215-7016   Notification to Offerors--Postaward Debriefings.

    As prescribed in 215.570, use the following provision:

Notification to Offerors--Postaward Debriefings (Mar 2022)

    (a) Definition. As used in this provision--
    Nontraditional defense contractor means an entity that is not 
currently performing and has not performed any contract or 
subcontract for DoD that is subject to full coverage under the cost 
accounting standards prescribed pursuant to 41 U.S.C. 1502 and the 
regulations implementing such section, for at least the 1-year 
period preceding the solicitation of sources by DoD for the 
procurement (10 U.S.C. 2302(9)).
    (b) Postaward debriefing.
    (1) Upon timely request, the Government will provide a written 
or oral postaward debriefing to successful or unsuccessful offerors 
for contract awards valued at $10 million or more, while protecting 
the confidential and proprietary information of other offerors. The 
request is considered timely if received within 3 days of 
notification of contract award.
    (2) When required, the minimum postaward debriefing information 
will include the following:
    (i) For contracts in excess of $10 million and not in excess of 
$100 million with a small business or nontraditional defense 
contractor, an option for the small business or nontraditional 
defense contractor to request disclosure of the agency's written 
source selection decision document, redacted to protect the 
confidential and proprietary information of other offerors for the 
contract award.
    (ii) For contracts in excess of $100 million, disclosure of the 
agency's written source selection decision document, redacted to 
protect the confidential and proprietary information of other 
offerors for the contract award.
    (3) If a required postaward debriefing is provided--
    (i) The debriefed Offeror may submit additional written 
questions related to the debriefing not later than 2 business days 
after the date of the debriefing;
    (ii) The agency will respond in writing to timely submitted 
additional questions within 5 business days after receipt by the 
contracting officer; and
    (iii) The postaward debriefing will not be considered to be 
concluded until the later of--
    (A) The date that the postaward debriefing is delivered, orally 
or in writing; or
    (B) If additional written questions related to the debriefing 
are timely received, the date the agency delivers its written 
response.
    (c) Contract performance. The Government may suspend performance 
of or terminate the awarded contract upon notice from the Government 
Accountability Office of a protest filed within the time periods 
listed in paragraphs (c)(1) through (3) of this provision, whichever 
is later:
    (1) Within 10 days after the date of contract award.
    (2) Within 5 days after a debriefing date offered to the 
protestor under a timely debriefing request in accordance with 
Federal Acquisition Regulation (FAR) 15.506 unless an earlier 
debriefing date is negotiated as a result.
    (3) Within 5 days after a postaward debriefing under FAR 15.506 
is concluded in accordance with Defense Federal Acquisition 
Regulation Supplement 215.506-70(b).


(End of provision)

0
13. Add section 252.216-7010 to read as follows:


252.216-7010   Postaward Debriefings for Task Orders and Delivery 
Orders.

    As prescribed at 216.506-70(b), use the following clause:

Postaward Debriefings for Task Orders and Delivery Orders (Mar 2022)

    (a) Postaward debriefing.
    (1) Upon timely request, the Government will provide a written 
or oral postaward debriefing for task orders or delivery orders 
valued at $10 million or more to the Contractor, regardless of 
whether the Contractor's offer for the task order or delivery order 
was successful or unsuccessful, while protecting the confidential 
and proprietary information of other contractors. The request is 
considered timely if received within 3 days of notification of task 
order or delivery order award.
    (2) If a required postaward debriefing is provided--
    (i) The debriefed Contractor may submit additional written 
questions related to the required and provided debriefing within 2 
business days after the date of the debriefing;
    (ii) The agency will respond in writing to timely submitted 
additional questions within 5 business days after receipt; and
    (iii) The postaward debriefing will not be considered to be 
concluded until the later of--
    (A) The date that the postaward debriefing is delivered, orally 
or in writing; or
    (B) If additional written questions related to the debriefing 
are timely received, the date the agency delivers its written 
response.
    (b) Task order or delivery order performance. The Government may 
suspend performance of or terminate the awarded task order or 
delivery order upon notice from the Government Accountability Office 
of a protest filed within the time periods listed in paragraphs 
(b)(1) through (3) of this clause, whichever is later:
    (1) Within 10 days after the date a task order or delivery order 
is issued, where the value exceeds $25 million (10 U.S.C. 2304c(e)).
    (2) Within 5 days after a debriefing date offered to the 
protestor under a timely debriefing request in accordance with 
Federal Acquisition Regulation (FAR) 15.506 unless an earlier 
debriefing date is negotiated as a result.
    (3) Within 5 days after a postaward debriefing under FAR 15.506 
is concluded in accordance with Defense Federal Acquisition 
Regulation Supplement 215.506-70(b).


[[Page 15812]]



(End of clause)

[FR Doc. 2022-05531 Filed 3-17-22; 8:45 am]
BILLING CODE 5001-06-P