[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Proposed Rules]
[Pages 53855-53857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16395]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAR Case 2020-005; Docket No. FAR-2020-0005; Sequence No. 1]
RIN 9000-AO08


Federal Acquisition Regulation: Explanations to Unsuccessful 
Offerors on Certain Orders Under Task and Delivery Order 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 for Fiscal Year 2020 that requires 
explanations to unsuccessful awardees on certain orders under task 
order and delivery order contracts.

DATES: Interested parties should submit written comments to the 
Regulatory

[[Page 53856]]

Secretariat Division at the address shown below on or before October 
10, 2023 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2020-005 to the 
Federal eRulemaking portal at https://www.regulations.gov by searching 
for ``FAR Case 2020-005''. Select the link ``Comment Now'' that 
corresponds with ``FAR Case 2020-005''. Follow the instructions 
provided on the ``Comment Now'' screen. Please include your name, 
company name (if any), and ``FAR Case 2020-005'' 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 2020-
005'' in all correspondence related to this case. Comments received 
generally will be posted without change to https://www.regulations.gov, 
including any personal and/or business confidential information 
provided. Public comments may be submitted as an individual, as an 
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s), 
please check https://www.regulations.gov, approximately two to three 
days after submission to verify posting.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949 or by email at [email protected], for 
clarification of content. For information pertaining to status, 
publication schedules, or alternate instructions for submitting 
comments if https://www.regulations.gov cannot be used, contact the 
Regulatory Secretariat Division at 202-501-4755 or [email protected]. 
Please cite FAR Case 2020-005.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement 
section 874 of the National Defense Authorization Act (NDAA) for Fiscal 
Year (FY) 2020 (Pub. L. 116-92) which, for task orders or delivery 
orders exceeding the simplified acquisition threshold (SAT) but not 
greater than $6 million, requires contracting officers to provide, upon 
written request from an unsuccessful offeror, a brief explanation as to 
why the offeror was unsuccessful, including the rationale for award and 
an evaluation of the significant weak or deficient factors in the 
offeror's offer.
    Section 874 of the NDAA uses the term ``unsuccessful offeror.'' FAR 
16.505 uses the term ``unsuccessful awardee''. Both terms are 
synonymous; referring to an entity who has been awarded a basic 
contract but has been unsuccessful for the award of an order competed 
under the basic contract. Since the term ``unsuccessful awardee'' is 
already used and understood by the acquisition community, the term will 
be used to implement the requirement.
    FAR 16.505(b)(6) requires contracting officers to notify 
unsuccessful awardees when the total price of a task order or delivery 
order exceeds $6 million. If the $6 million threshold is met, 
contracting officers are directed to the procedures at FAR 15.503(b)(1) 
and FAR 15.506 when providing a postaward notification or postaward 
debriefing, respectively.
    The FAR threshold at 16.505 is currently $6 million as a result of 
two inflation adjustments in accordance with FAR 1.109. FAR Case 2014-
022 published on July 2, 2015, at 80 FR 38293 and 2019-013 published on 
October 2, 2020, at 85 FR 62485 each raised the threshold by $500,000 
from the $5 million reflected at 41 U.S.C. 4106(d).

II. Discussion and Analysis

    The proposed rule implements the requirement for contracting 
officers to, upon written request from an unsuccessful awardee, provide 
a brief explanation as to why the awardee was unsuccessful for a task 
order or delivery order exceeding the SAT but not exceeding $6 million. 
While the statutory threshold is $5.5 million, this rule is imposing 
these debriefing requirements at the higher $6 million threshold to 
align with the current threshold at FAR 16.505(b)(6). This avoids a gap 
between $5.5 million and $6 million. This new debriefing requirement 
for orders above the SAT and below $6 million does not provide a 
debriefing at the level of detail currently afforded to unsuccessful 
awardees over $6 million, however, this information is expected to 
benefit entities by improving future offers. While not expressly 
required by the statute, the proposed rule adds a postaward 
notification requirement for the applicable task orders and delivery 
orders to ensure unsuccessful awardees are provided an opportunity to 
obtain the debriefing information in a timely manner.

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 rule does not create any new provisions or clauses, nor does 
it change the applicability of any existing provisions or clauses 
included in solicitations and contracts valued at or below the SAT, for 
commercial products, including COTS items, or for commercial services.

IV. Expected Impact of the Rule

    This proposed rule is expected to increase the availability of 
debriefing information to significantly more small and large entities 
participating in fair opportunity competitions than is currently 
required by the FAR. When requested by an unsuccessful awardee, the 
information provided is expected to enable these entities to improve 
future offers.

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. This rule is not anticipated to 
be a major rule under 5 U.S.C. 804.

VI. 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. 601-612, because 
the rule provides postaward information to unsuccessful awardees, if 
requested. 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 874 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020 
(Pub. L. 116-92). For task orders or delivery orders exceeding the 
simplified acquisition threshold (SAT) but not greater than $5.5 
million, section 874

[[Page 53857]]

requires contracting officers to provide, upon written request from 
an unsuccessful offeror, a brief explanation as to why the offeror's 
offer was unsuccessful, including the rationale for award and an 
evaluation of the significant weak or deficient factors in the 
unsuccessful offeror's offer. While the statutory threshold is $5.5 
million, this rule is implementing this requirement at the higher $6 
million threshold for debriefings currently in the FAR to avoid a 
gap between $5.5 million and $6 million.
    The objective of this proposed rule is to increase the 
availability of debriefing information to significantly more small 
and large entities participating in fair opportunity competitions 
than is currently required by the FAR. When requested by an 
unsuccessful awardee, the information provided is expected to enable 
these entities to improve future offers. The legal basis for the 
rule is section 874 of the NDAA for FY 2020. Promulgation of FAR 
regulations is authorized by 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.
    This proposed rule will apply to all entities participating in 
fair opportunity competitions that exceed the SAT but do not exceed 
$6 million. Based upon FY 2018 through FY 2020 data obtained from 
the Federal Procurement Data System, the Government awarded an 
average of 53,068 task orders and delivery orders against multiple-
award contracts exceeding the SAT but not exceeding $6 million 
annually. Of those orders, an estimated 22,863 were awarded to 
approximately 5,984 unique small entities each year. While DoD, GSA, 
and NASA are unable to estimate how many unique small entities are 
unsuccessful awardees and would request information afforded by this 
rule, it is assumed that at least one small entity may make such a 
request per opportunity, 22,863 annually.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small entities.
    The proposed 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 proposed objectives.

    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 rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2020-005), 
in correspondence.

VII. Paperwork Reduction Act

    The 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. 3501-3521).

List of Subjects in 48 CFR Part 16

    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 part 16 as 
set forth below:

PART 16--TYPES OF CONTRACTS

0
1. The authority citation for 48 CFR part 16 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.

0
2. Amend section 16.505 by revising paragraph (b)(6) to read as 
follows:


16.505  Ordering.

* * * * *
    (b) * * *
    (6) Postaward notices and debriefings (41 U.S.C. 4106 and 41 U.S.C. 
4106 note).
    (i) For task orders or delivery orders exceeding the simplified 
acquisition threshold but not exceeding $6 million, the contracting 
officer shall--
    (A) Provide timely notification to unsuccessful awardees. At a 
minimum, the notification shall provide the name of the awardee of the 
order and the total price of the order;
    (B) Upon written request, received by the agency within 3 days 
after the date that the unsuccessful awardee has received notification 
of award, provide a brief explanation as to why the awardee was 
unsuccessful that includes--
    (1) A summary of the rationale for the award; and
    (2) An evaluation of the significant weak or deficient factors in 
the unsuccessful awardee's offer.
    (C) Include the brief explanation in the task order or delivery 
order file.
    (ii) For task orders or delivery orders exceeding $6 million, the 
contracting officer shall--
    (A) Provide postaward notification to unsuccessful awardees in 
accordance with the procedures at 15.503(b)(1);
    (B) Follow the procedures at 15.506 when providing postaward 
debriefings to unsuccessful awardees; and
    (C) Include a summary of the debriefing in the task order or 
delivery order file.
* * * * *
[FR Doc. 2023-16395 Filed 8-8-23; 8:45 am]
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