[Federal Register Volume 61, Number 148 (Wednesday, July 31, 1996)]
[Proposed Rules]
[Pages 40116-40117]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-19351]
[[Page 40115]]
_______________________________________________________________________
Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Part 6, et al.
Federal Acquisition Regulations; Competitive Range Determinations;
Proposed Rule
Federal Register / Vol. 61, No. 148 / Wednesday, July 31, 1996 /
Proposed Rules
[[Page 40116]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 6, 12, 15, and 52
[FAR Case 96-303]
RIN 9000-AH15
Federal Acquisition Regulation; Competitive Range Determinations
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council are proposing to amend the Federal
Acquisition Regulation (FAR) to implement Sections 4101 and 4103 of the
Federal Acquisition Reform Act of 1996. The rule provides the
contracting officer with the authority to limit the size of the
competitive range, in accordance with criteria specified in the
solicitation, to the greatest number that will permit an efficient
competition. This regulatory action was not subject to Office of
Management and Budget review under Executive Order 12866, dated
September 30, 1993. This is not a major rule under 5 U.S.C. 804.
DATES: Comments should be submitted on or before September 30, 1996 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 18th & F
Streets, NW, Room 4037, Washington, DC 20405.
Please cite FAR case 96-303 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758
in reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 96-303.
SUPPLEMENTARY INFORMATION:
A. Background
Subsections 4101 (a) and (b) of the Federal Acquisition Reform Act
of 1996 (Pub. L. 104-106) (the Act) require FAR implementation of the
requirement to obtain full and open competition in a manner that is
consistent with the need to efficiently fulfill the Government's
requirements. Section 4103 of the Act provides that the contracting
officer may limit the number of proposals in the competitive range, in
accordance with criteria specified in the solicitation, to the greatest
number that will permit an efficient competition. The proposed rule
revises FAR 6.101(b), 12.301(e), 15.407(d)(4), 15.609, 52.212-1(g) and
52.215-16 to implement sections 4101 and 4103. The integrity, fairness,
and openness principles in FAR subpart 1.102 are not changed.
B. Regulatory Flexibility Act
The proposed changes may 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, et seq., because the rule
revises the procedures for determining the competitive range in
negotiated acquisitions. The size of the competitive range will be
reduced in some negotiated acquisitions and some offerors may be
eliminated from a competition earlier than they would be eliminated
under existing procedures. However, bid and proposal costs are expected
to decrease, as an offeror who is not likely to receive an award will
be less likely to remain in a competition. An Initial Regulatory
Flexibility Analysis has been performed and will be provided to the
Chief Council for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the FAR Secretariat. Comments are
invited from small businesses and other interested parties. Comments
from small entities concerning the affected FAR subpart will be
considered in accordance with section 610 of the Act. Such comments
must be submitted separately and should cite 5 U.S.C. 601, et seq. (FAR
case 96-303), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose any substantial change in
recordkeeping or information collection requirements, or collections of
information from offerors, contractors, or members of the public which
require the approval of the Office of Management and Budget under 44
U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 6, 12, 15 and 52
Government procurement.
Dated: July 25, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 6, 12, 15 and 52 be
amended as set forth below:
1. The authority citation for 48 CFR Parts 6, 12, 15 and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. 2301 to 2331; and 42
U.S.C. 2473(c).
PART 6--COMPETITION REQUIREMENTS
2. Section 6.101 is amended by revising paragraph (b) to read as
follows:
6.101 Policy
* * * * *
(b) Contracting officers shall provide for full and open
competition through use of the competitive procedure, or combination of
competitive procedures, contained in this subpart that is best suited
to the circumstances of the contract action and is consistent with the
need to efficiently fulfill the Government's requirement. Contracting
officers must use good judgment in selecting the procedure that best
meets the needs of the Government.
PART 12.3--ACQUISITION OF COMMERCIAL ITEMS
3. Section 12.301 is amended by adding new paragraph (e)(4) to read
as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(e) * * *
(4) The contracting officer may reserve the right to conduct
discussions with offerors determined to be within the competitive range
after evaluation of proposals and to limit the number of proposals in
the competitive range to the greatest number that will permit an
efficient competition among the most highly rated proposals. 52.215-16,
Contract Award, Alternate III, may be used in solicitations for this
purpose.
* * * * *
PART 15--CONTRACTING BY NEGOTIATION
4. Section 15.407 is amended by revising paragraph (d)(4)(ii) and
adding new paragraph (d)(4)(iii) to read as follows:
15.407 Solicitation provisions.
* * * * *
(d) * * *
(4) * * *
[[Page 40117]]
(ii) If awards are intended to be made without discussions with
offerors within the competitive range, use the basic provision with its
Alternate II.
(iii) If the Government wishes to reserve the right to limit the
competitive range to no more than a specific number, use the basic
provision with its Alternate III, or the basic provision with both
Alternates II and III.
* * * * *
5. Section 15.609 is revised to read as follows:
15.609 Competitive range.
(a) The contracting officer shall determine the competitive range
for the purpose of conducting written or oral discussion (see
15.610(b)) based on cost or price and other factors in the
solicitation. The competitive range consists of proposals having the
greatest likelihood of award based on the factors and subfactors in the
solicitation.
(b) In planning an acquisition, the contracting officer may
determine that the number of proposals that would otherwise be included
in the competitive range is expected to exceed the number at which an
efficient competition can be conducted. In reaching such a conclusion,
the contracting officer may consider such factors as the results of
market research, historical data from previous acquisitions for similar
supplies and services, and the resources available to conduct the
source selection. Alternate III of 52.215-16, Contract Award, may be
used to indicate the Government's estimate of the greatest number or
proposals that will be included in the competitive range for purposes
of conducting an efficient competition among the most highly rated
proposals.
(c) After evaluating offers, the contracting officer may determine
that the number of proposals that would otherwise be included in the
competitive range exceeds the number at which an efficient competition
can be conducted. Provided the solicitation notifies offerors that the
competitive range can be limited for purposes of efficiency, the
contracting officials may limit the number of proposals in the
competitive range to the greatest number that will permit an efficient
competition among the most highly rated proposals. The basic
solicitation provisions at 52.215-16, Contract Award, reserves the
contracting officer's right to limit the competitive range for purposes
of efficiency.
(d) If the contracting officer determines that an offeror's
proposal is no longer in the competitive range the proposal shall no
longer be considered for award. Written notice of this decision shall
be provided to the unsuccessful offeror at the earliest practicable
time (see 15.1002(b)).
(e) Offerors excluded from the competitive range may request a
debriefing. When a debriefing is requested, see 15.1004.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
6. Section 52.212-1 is amended by revising the provision date and
paragraph (g) to read as follows:
52.212-1 Instructions to Offerors--Commercial Items.
* * * * *
Instructions to Offerors--Commercial Items (Date)
* * * * *
(g) Contract award (not applicable to Invitation for Bids). The
Government intends to evaluate proposals and award a contract
without discussions with offerors (except communications conducted
for the purpose of minor clarification). Therefore, each individual
offer should contain the offeror's best terms from a cost or price
and technical standpoint. However, the Government reserves the right
to conduct discussions if the Contracting Officer later determines
them to be necessary. If discussions are held and the Contracting
Officer determines that the number of proposals that would otherwise
be in the competitive range exceeds the number at which an efficient
competition can be conducted, the Contracting Officer may limit the
number of proposals in the competitive range to the greatest number
that will permit an efficient competition among the most highly
rated proposals. The Government may reject any or all offers if such
action is in the public interest; accept other than the lowest
offer; and waive informalities and minor irregularities in offers
received.
* * * * *
7. Section 52.215-16 is amended by revising the provision date and
paragraph (c), revising Alternate II (c), and adding a new Alternate
III to read as follows:
52.215-16 Contract Award.
* * * * *
Contract Award (Date)
* * * * *
(c) The Government intends to evaluate proposals and award a
contract after conducting discussions with responsible offerors
whose proposals have been determined to be within the competitive
range. If the Contracting Officer determines that the number of
proposals that would otherwise be in the competitive range exceeds
the number at which an efficient competition can be conducted, the
Contracting Officer may limit the number of proposals in the
competitive range to the greatest number that will permit an
efficient competition among the most highly rated proposals.
Therefore, each initial offer should contain the offeror's best
terms from a cost or price and technical standpoint.
* * * * *
Alternate II (Date) * * *
(c) The Government intends to evaluate proposals and award a
contract without discussions with offerors (except communications
conducted for the purpose of minor clarification). Therefore, each
individual offer should contain the offeror's best terms from a cost
or price and technical standpoint. However, the Government reserves
the right to conduct discussions if the Contracting Officer later
determines them to be necessary. If discussions are to be held and
the Contracting Officer determines that the number of proposals that
would otherwise be in the competitive range exceeds the number at
which an efficient competition can be conducted, the Contracting
Officer may limit the number of proposals in the competitive range
to the greatest number that will permit an efficient competition
among the most highly rated proposals.
Alternate III (Date). As prescribed in 15.407(d)(4)(iii), insert
the following paragraph (i) in the basic provision:
(i) If the Contracting Officer exercises the Government's right
to limit the number of proposals in the competitive range, the
competitive range will be limited to no more than ________ (insert
number).
[FR Doc. 96-19351 Filed 7-30-96; 8:45 am]
BILLING CODE 6820-EP-M
