Status Report

DoD/GSA/NASA: Final Rule: Federal Acquisition Regulation; Debriefing- Competitive Acquisition

By SpaceRef Editor
December 11, 2003
Filed under ,

[Federal Register: December 11, 2003 (Volume 68, Number 238)]
[Rules and Regulations]
[Page 69257-69258]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11de03-26]

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAC 2001-18; FAR Case 2002-014; Item VII] RIN 9000-AJ59

Federal Acquisition Regulation; Debriefing–Competitive
Acquisition

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

ACTION: Final rule.

SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement sections
1014 and 1064 of the Federal Acquisition Streamlining Act of 1994 on
requirements for debriefing unsuccessful offerors under competitive
proposals.

DATES: Effective Date: January 12, 2004.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, at (202) 501-
4755, for information pertaining to status or publication schedules.
For clarification of content, contact Ms. Julia Wise, Procurement
Analyst, at (202) 208-1168. Please cite FAC 2001-18, FAR case 2002-014.

SUPPLEMENTARY INFORMATION:

A. Background

This rule amends the FAR to include requirements for debriefing
unsuccessful offerors under competitive proposals, as required by
sections 1014 and 1064 of the Federal Acquisition Streamlining Act of
1994 which amended 10 U.S.C. 2305(b) and 41 U.S.C. 253b, respectively.
Specifically, 10 U.S.C. 2305(b)(5)(D) and 41 U.S.C. 253b(e)(4) require
each solicitation for competitive proposals to include a statement that
prescribes minimal information that shall be disclosed in postaward
debriefings. Some of the requirements were already incorporated into
the clause at FAR 52.215-1, Instructions to Offerors–Competitive
Acquisitions, but the notification for debriefings was overlooked
during the drafting of the clause at 52.212-1, Instruction to
Offerors–Commercial Items. This rule amends FAR 52.212-1 and 52.215-1
to implement the statutory requirements, and the past performance
debriefing requirement at FAR 15.506(d)(2), by listing all the
prescribed minimal information that shall be disclosed in postaward
debriefings.

DoD, GSA, and NASA published a proposed rule in the Federal
Register at 68 FR 5778, February 4, 2003. Two respondents submitted
public comments. The Councils considered the comments before agreeing
to publish the proposed rule as final without change. A summary of the
comments and their disposition follows:

Comment: The revised FAR clauses should include a debriefing
requirement to reveal the number of “points” an offeror received
under the evaluation of its past performance.

Response: The Councils do not concur. The clauses, as revised by
this final rule, establish a clear requirement for agencies to provide
the results of its evaluation of an offeror’s past performance.
However, agencies successfully use different methods (e.g., adjectival,
color coding, and point scoring) to evaluate proposals. Specifying a
particular method would limit agency discretion with no apparent
associated benefit.

Comment: The revised FAR clauses should include a debriefing
requirement to reveal the sources, other than the offeror, of any past
performance information received.

Response: The Councils do not concur. FAR 15.506(e) prohibits the
identification of individuals providing reference information about an
offeror’s past performance.

Comment: The rule should be revised to address the requirement to
release unit price information clearly and consistently within the FAR.

Response: The Councils appreciate that, as a result of recent court
cases, especially MCI WorldCom v. GSA, 163 F. Supp. 2d 28, the
treatment of unit prices under exemption no. 4 of the Freedom of
Information Act (5 U.S.C. 552(b)(4)) is in a state of flux which may

[[Page 69258]]

ultimately require that FAR 15.503(b)(1)(iv) addressing the release of
unit prices be clarified. The Councils will continue to evaluate this
issue and will consider whether a case needs to be opened to address
this issue.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
FlexibilityAct, 5 U.S.C. 601, et seq., because the rule primarily
clarifies language pertaining to disclosure of information in post-
award debriefings currently authorized by statute and does not change
existing policy.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.

List of Subjects in 48 CFR Part 52

Government procurement.

Dated: December 4, 2003.
Laura Auletta,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:

PART 52–SOLICITATIONS PROVISIONS AND CONTRACT CLAUSES

0
1. The authority citation for 48 CFR part 52 is revised to read as
follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).

0
2. Amend section 52.212-1 by revising the date of the provision; and
adding paragraph (l) to read as follows:

52.212-1 Instructions to Offerors–Commercial Items.

* * * * *

Instructions to Offerors–Commercial Items (JAN 2004)

* * * * *

(l) Debriefing. If a post-award debriefing is given to
requesting offerors, the Government shall disclose the following
information, if applicable:

(1) The agency’s evaluation of the significant weak or deficient
factors in the debriefed offeror’s offer.

(2) The overall evaluated cost or price and technical rating of
the successful and the debriefed offeror and past performance
information on the debriefed offeror.

(3) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection.
(4) A summary of the rationale for award;

(5) For acquisitions of commercial items, the make and model of
the item to be delivered by the successful offeror.

(6) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source-selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the agency.

(End of provision)

0

3. Amend section 52.215-1 by revising the date of the provision and
paragraph (f)(11) to read as follows:

52.215-1 Instructions to Offerors–Competitive Acquisition.

* * * * *

Instructions to Offerors–Competitive Acquisition (Jan 2004)

* * * * *

(f) * * *

(11) If a post-award debriefing is given to requesting offerors,
the Government shall disclose the following information, if
applicable:

(i) The agency’s evaluation of the significant weak or deficient
factors in the debriefed offeror’s offer.

(ii) The overall evaluated cost or price and technical rating of
the successful and the debriefed offeror and past performance
information on the debriefed offeror.

(iii) The overall ranking of all offerors, when any ranking was
developed by the agency during source selection.

(iv) A summary of the rationale for award.

(v) For acquisitions of commercial items, the make and model of
the item to be delivered by the successful offeror.

(vi) Reasonable responses to relevant questions posed by the
debriefed offeror as to whether source-selection procedures set
forth in the solicitation, applicable regulations, and other
applicable authorities were followed by the agency.

(End of provision)

* * * * *

[FR Doc. 03-30478 Filed 12-10-03; 8:45 am]

SpaceRef staff editor.