Federal Acquisition Regulation: Explanations to Unsuccessful Offerors on Certain Orders Under Task and Delivery Order Contracts
| Citation | 88 FR 53855 |
| Published date | 09 August 2023 |
| Record Number | 2023-16395 |
| Court | Defense Department,General Services Administration,National Aeronautics And Space Administration |
Federal Register, Volume 88 Issue 152 (Wednesday, August 9, 2023)
[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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