[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Rules and Regulations]
[Pages 53748-53751]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16658]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 12, 26, and 52

[FAC 2023-05, FAR Case 2017-014, Item I; Docket No. 2017-001, Sequence 
No. 1]
RIN 9000-AN43


Federal Acquisition Regulation: Use of Acquisition 360 To 
Encourage Vendor Feedback

AGENCY: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

[[Page 53749]]


ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to encourage use of voluntary 
feedback mechanisms, where appropriate, to support continual 
improvement of the acquisition process.

DATES: Effective September 22, 2023.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207, or by email 
at [email protected]. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat Division at 
202-501-4755 or [email protected]. Please cite FAC 2023-05, FAR Case 
2017-014.

SUPPLEMENTARY INFORMATION: 

I. Background

    Understanding how contractors experience the Federal marketplace is 
critical to the Government's ability to build and maintain a healthy, 
diverse, and resilient supplier base that can help Federal agencies use 
acquisition as a catalyst to address the needs of our Nation. While 
many agencies periodically seek feedback from their contractors, there 
are no Government-wide mechanisms for agencies to collect and consider 
this information in a consistent and organized manner. This final rule 
fills an important gap in Government-vendor communications by providing 
a standardized tool for voluntary vendor feedback.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 85 FR 57177 on September 15, 2020, 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 preaward and debriefing processes in a consistent and 
standardized manner.
    An advance 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.
    One respondent submitted comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. A discussion of the comments is provided 
as follows:

A. Summary of Significant Changes

    There are no significant changes from the proposed rule. Minor 
corrections were made at FAR 1.102-3(a)(3) to the citation referencing 
performance standards, and to update a reference at FAR 26.206(a). The 
new FAR provision at FAR 52.201-1 was added to the list of provisions 
and clauses at FAR 12.301(e) to reflect the final rule's applicability 
to commercial solicitations.

B. Analysis of Public Comments

1. Support for the Rule
    Comment: The respondent commends OFPP and the Federal Acquisition 
Regulatory Council for their initiative in advancing this rule, and 
states that both the information and the initiative to promote 
voluntary feedback has merit. The respondent also notes the Government 
estimate of 10 minutes to complete the survey, and finds this to be a 
worthy time investment to facilitate effective communication that could 
prevent delays or errors due to miscommunication.
    Response: The Councils appreciate the support for the rule.
2. True 360-Degree Rollout
    Comment: The respondent suggests that ``Acquisition 360'' 
techniques would be most effective by implementing a ``true 360-degree 
rollout, including adding questions that would identify both contract 
type and non-bidders.''
    Response: OFPP will consider the respondent's comment during 
development of the final question set. The final question set will be 
available for public comment as part of the Paperwork Reduction Act 
common form information collection notice.
3. Acquisition 360 Should Be Made Mandatory
    Comment: Rather than merely encouraging Contracting Officers to 
insert the provision at FAR 52.201-1, more should be provided to ensure 
the full accomplishment of the Acquisition 360 initiative and achieve 
the objective to obtain actionable feedback on the acquisition process. 
The respondent also recommends more direct language to encourage 
participants' feedback.
    Response: While actionable feedback is desired, it is equally 
important that participants understand the survey is completely 
voluntary and will not impact the outcome of a specific acquisition. 
Adding language to further encourage survey use may confuse 
participants or compel a response out of fear that not responding would 
preclude the opportunity to participate in an acquisition.
4. Rule Does Not Accomplish the Goals of the 2015 OFPP Memorandum
i. Public Reporting
    Comment: The effort outlined in the proposed rule falls short of 
the goals outlined in the memorandum dated March 18, 2015, titled 
``Improving the Acquisition Process through Timely Feedback from 
External and Internal Stakeholders,'' by failing to publicly report 
information acquired from such evaluations.
    Response: The Councils and OFPP agree that publicly reporting 
survey data would be beneficial; however, the open-comment fields 
present the possibility of personal or private information being 
disclosed, if entered voluntarily by a participant. Full transparency 
is not feasible, as review and redaction of comments would be necessary 
prior to publication to prevent the unintentional release of personal 
or private information. The Councils and OFPP intend to publicize 
efforts taken in response to the survey data so that all parties can 
understand the impact and efforts undertaken as a result.
ii. Postaward Goals
    Comment: The proposed rule does not meet the goals of Acquisition 
360 by not including postaward experiences or acquisition outcomes in 
the evaluation.
    Response: The survey does include questions regarding the postaward 
debriefing process. Additionally, the proposed revisions at 1.102-
3(a)(3) encourage agencies to seek feedback on ``targeted aspects of an 
acquisition throughout its lifecycle''.
5. Use of Pilot Program Version of the Survey Questions
    Comment: The respondent recommends reviving the original intent by 
using the pilot program version of the survey questions in the 
Acquisition 360 portal and adding three options: ``contractor'', 
``program office'', and ``acquisition office'' to route survey 
participants to the appropriate version of the survey.

[[Page 53750]]

    Response: OFPP will consider the respondent's comment during 
development of the final question set. The final question set will be 
available for public comment as part of the Paperwork Reduction Act 
common form information collection notice.
6. OMB Centralized Survey Portal
    Comment: The respondent suggests that survey data be collected 
through the Office of Management and Budget's (OMB) centralized survey 
portal, which should facilitate greater data submission, access, and 
analysis across the Government.
    Response: The current iteration of the survey, though hyper-linked 
at acquisition.gov/360 for ease, is hosted via the OMB MAX Survey tool 
so that agencies can be granted access to data. Ease of access and the 
ability of agencies to receive their response data will remain a 
priority when and if the survey tool is moved to other platforms.
7. Anonymization of the Data
    Comment: Respondent recommends language that allows the survey to 
anonymously categorize the data for publication.
    Response: Subject to the quality and reliability of the data, the 
Councils and OFPP may perform certain analyses and develop statistics, 
reports, or other items summarizing the results of the collection 
activity and may make public aggregate information discussing efforts 
taken in response to the survey data. Efforts will be made not to 
disclose personal or private information related to any particular 
survey participant.
8. Use of Other Mechanisms
    Comment: Respondent recommends language to encourage the use of 
other mechanisms where Government and industry may also provide input 
through a freeform response on the OMB portal.
    Response: The revisions at 1.102-3(a) encourage agencies to 
``utilize a variety of feedback mechanisms available to the public 
(e.g., surveys, in-person, and/or group exchanges)'' and seek feedback 
on ``targeted aspects of an acquisition throughout its lifecycle.'' 
This may include freeform response. In addition, improving 
communication between Government and industry partners is an ongoing 
process and multi-dimensional effort that involves the coordination of 
various elements and networks. Besides regulatory actions, agency 
personnel such as the designated industry liaisons and acquisition 
innovation advocates, continue to promote effective and meaningful 
communication strategies. With the aid of a ``crowd-sourcing'' idea 
management tool, OFPP will also solicit additional, targeted input to 
gather more ideas on modernizing and improving communication during the 
acquisition process. These efforts will continue in parallel with the 
rollout of this rulemaking and the voluntary use of a standardized 
feedback survey as part of broader efforts to improve Government-vendor 
communication and strengthen the diversity and resiliency of the 
Federal supplier base.

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

    This rule adds a provision at FAR 52.201-1, Acquisition 360: 
Voluntary Survey. The provision is not prescribed for any particular 
procurement; agencies, in accordance with their procedures, may include 
it in solicitations at or below the SAT and in solicitations for 
commercial services and commercial products, including COTS items.

IV. Expected Impact of the Rule

    This final rule amends the FAR to implement the Acquisition 360 
Survey tool, a voluntary online survey to elicit industry feedback on 
the preaward and debriefing processes in a consistent and standardized 
manner. Contracting officers may insert the provision into 
solicitations per agency guidance. However, because it is voluntary, 
the impact on offerors or contractors is expected to be minimal.

V. 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.

VI. Congressional Review Act

    The Congressional Review Act (5 U.S.C. 801-808) requires interim 
and final rules to be submitted to Congress before the rule takes 
effect. DoD, GSA, and NASA will send this rule to each House of the 
Congress and to the Comptroller General of the United States. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601-612. The FRFA is summarized as follows:

    This final rule amends the Federal Acquisition Regulation to 
implement the voluntary use of the Acquisition 360 Survey to elicit 
feedback on preaward 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 to obtain feedback 
from offerors which may be used to improve their acquisition 
processes.
    No public comments were received in response to the initial 
regulatory flexibility analysis.
    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 331,899 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 331,899 small entities.
    To estimate the likely number of small entities impacted by the 
rule, we used the average of FPDS data for fiscal years 2020, 2021, 
and 2022. Examination of the data reveals that the number of unique 
small entities that received contract awards was 79,264. DoD, GSA, 
and NASA estimate that each unique small entity would respond to 
approximately 3 solicitations, equating to 237,791 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 
78,471 small entities will likely be affected by the rule.
    The final rule encourages potential offerors to provide feedback 
at https://www.acquisition.gov/360 on agency acquisition processes.
    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.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
has submitted a copy of the FRFA to the Chief Counsel

[[Page 53751]]

for Advocacy of the Small Business Administration.

VIII. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies. The rule 
contains information collection requirements. OMB has cleared this 
information collection requirement under OMB Control Number 9000-0204, 
Acquisition 360 Voluntary Survey.

List of Subjects in 48 CFR Parts 1, 12, 26, 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 amend 48 CFR parts 1, 12, 26, and 52 
as set forth below:

0
1. The authority citation for 48 CFR parts 1, 12, 26, and 52 continues 
to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C. 
chapter 137 legacy provisions (see 10 U.S.C. 3016); 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 preaward 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 1.102-2 or 
postaward contract administration responsibilities at 42.302).
    (b) Contracting officers are encouraged to insert the provision 
52.201-1, 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-
1'' in numerical order to read as follows:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                           OMB  control
                      FAR segment                              No.
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                                * * * * *
52.201-1...............................................       9000-0204
 
                                * * * * *
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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 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES

0
6. Amend section 12.301 by--
0
a. Redesignating paragraphs (e)(1) through (4) as paragraphs (e)(2) 
through (5); and
0
b. Adding a new paragraph (e)(1).
    The addition reads as follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial products and commercial services.

* * * * *
    (e) * * *
    (1) The contracting officer may use the provision at 52.201-1, 
Acquisition 360: Voluntary Survey, as prescribed in 1.102-3(b).
* * * * *

PART 26--OTHER SOCIOECONOMIC PROGRAMS


26.206  [Amended]

0
7. Amend section 26.206 by removing from paragraph (a) ``12.301(e)(4)'' 
and adding ``12.301(e)(5)'' in its place.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
8. Add section 52.201-1 to read as follows:


52.201-1  Acquisition 360: Voluntary Survey.

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

Acquisition 360: Voluntary Survey (Sep 2023)

    (a) All actual and potential offerors are encouraged to provide 
feedback on the preaward and debriefing processes, as applicable. 
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 preaward and debriefing processes, as applicable, 
used for a specific acquisition.


(End of provision)

[FR Doc. 2023-16658 Filed 8-7-23; 8:45 am]
BILLING CODE 6820-EP-P