[Federal Register Volume 60, Number 158 (Wednesday, August 16, 1995)]
[Rules and Regulations]
[Pages 42652-42657]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19859]
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DEPARTMENT OF DEFENSE
48 CFR Parts 2, 4, 5, 6, 14, 15, 17, 19, 25, 36, 51 and 52
[FAC 90-31; FAR Case 94-701; Item II]
RIN 9000-AG39
Federal Acquisition Regulation; Contract Award Implementation
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: This final rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994 to (1) identify new Federal Procurement Data
System reporting requirements, (2) expand the reasons for establishing
or maintaining alternative sources of supplies or services, (3) allow
acquisition of expert services to support litigation by other than full
and open competition and provide an exception to synopsis requirements,
(4) clarify procedures for award to a source identified in a statute,
(5) clarify approval authority for use of other than full and open
competition, (6) revise procedures for use of source selection
evaluation factors in solicitations, for conducting written or oral
discussions, and for providing postaward notices and debriefing to
offerors, (7) require a determination that an option is likely to be
exercised before providing for evaluation of sealed bid options, (8)
allow nonprofit agencies for the blind or severely disabled to use
Government supply sources in performing certain Javits-Wagner-O'Day
contracts, and (9) make procedures for award without discussion the
same for Department of Defense and civilian agencies. This regulatory
action was subject to Office of Management and Budget review under
Executive Order 12866, dated September 30, 1993.
EFFECTIVE DATE: October 1, 1995.
FOR FURTHER INFORMATION CONTACT:
Ms. Melissa Rider, Contract Award Team Leader, at (703) 614-1634 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 FAC 90-31, FAR case 94-701.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Acquisition Streamlining Act of 1994, Pub. L. 103-355
(the Act), provides authorities that streamline the acquisition process
and minimize burdensome Government-unique requirements. Major changes
that can be expected in the acquisition process as a result of the
Act's implementation include changes in the areas of Commercial Item
Acquisition, the Truth in Negotiations Act, and introduction of the
Federal Acquisition Computer Network.
This notice announces FAR revisions developed under FAR Case 94-
701, Contract Award Implementation, which implements the following
sections of the Act:
--Sections 1002 and 1052 amend 10 U.S.C. 2304(b) and 41 U.S.C. 253(b)
to--(1) Ensure the continuous availability of a reliable source of
supply; (2) satisfy projected needs based on a history of high demand;
and (3) satisfy a critical need for medical, safety, or emergency
supplies, as reasons for establishing or maintaining alternative
sources. (Implementation at FAR 6.202.)
--Sections 1003 and 1053 amend 10 U.S.C. 2304(f)(1)(B)(i) and 41 U.S.C.
253(f)(1)(B)(i) to clarify the approval authority for use of other than
full and open competition. (Implementation at FAR 6.304.)
--Sections 1005 and 1055 amend 10 U.S.C. 2304(c)(3) and 41 U.S.C.
253(c) to add the acquisition of expert services for use in any
litigation or dispute involving the Federal Government as an exception
to use of full and open competition. (Implementation at FAR 6.302-3.)
Section 1055 also amended 41 U.S.C. 416(c) and 15 U.S.C. 637(c) to
provide an exception to the publication of notices in the Commerce
Business Daily for acquisition of expert services. (Implementation at
FAR 5.201, 5.202, 5.301, and 6.302-3.)
--Sections 1011 and 1061 amend 10 U.S.C. 2305(a) and 41 U.S.C. 253a and
253b to (1) Make procedures for award of contracts without discussion
comparable in Department of Defense and civilian agencies, (2) require
solicitations for competitive proposals to include all significant
factors and subfactors and whether they are more important, of equal
importance or less important than cost or price, (3) permit agencies to
disclose numerical weights assigned to evaluation factors at their
discretion, and (4) allow award without discussion to other than the
lowest overall cost offeror. (Implementation at FAR 15.406-5, 15.407,
15.605, 15.610, and 52.215-16.)
--Sections 1012 and 1062 amend 10 U.S.C. 2305(a) and 41 U.S.C. 253a to
require a determination that it is likely that an option will be
exercised before providing for evaluation of prices of options in
solicitations for contracts awarded using sealed bid procedures.
(Implementation at FAR 17.202 and 17.208.)
--Sections 1013 and 1063 amend 10 U.S.C. 2305(b) and 41 U.S.C. 253b to
require, within three days of contract award, notification to
unsuccessful offerors that a contract has been awarded and to allow
electronic transmission of the notice. (Implementation at FAR 2.101,
14.408-1, 14.409-1, 15.1002, 15.1003, 25.405, and 36.304.)
--Sections 1014 and 1064 amend 10 U.S.C. 2305(b) and 41 U.S.C. 253b to
(1) Allow offerors to request a debriefing within three days of receipt
of notice of award and require agencies, to the maximum extent
practicable, to conduct the debriefings within five days, and (2)
specify minimum requirements for content of the debriefings.
(Implementation at FAR 15.1001, 15.1004, 36.607, and 52.215-16.)
--Section 1555 amends 40 U.S.C. 481 to allow nonprofit agencies for the
blind or severely disabled providing supplies or services under a
Javitts-Wagner-O'Day Act contract to use Government supply sources in
performing the contract. (Implementation at FAR 51.101 and
[[Page 42653]]
51.102.) Other parts of Section 1555 are being implemented separately
by GSA (see proposed rule of April 7, 1995, 60 FR 17764).
--Section 7203 amends 10 U.S.C. 2304 and 41 U.S.C. 253 to state
Congressional policy regarding legislative requirements for award of a
new contract to a specific non-Federal Government entity.
(Implementation at FAR 6.302-5.)
--Section 10004 requires the Federal Procurement Data System to collect
from contracts in excess of $25,000 data on awards to small and
disadvantaged businesses using either set asides or full and open
competition, awards to businesses owned and controlled by women, the
number of offers received in response to a solicitation, task or
delivery order contracts and contracts for the acquisition of
commercial items. (Implementation at FAR 4.601.)
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
Flexibility Act, 5 U.S.C. 601, et seq., because the regulatory changes
contained in the rule relate primarily to the content of solicitations,
debriefings and notifications to offerors, internal Government
procedures, and procedures which apply only to the acquisition of
expert services for litigation or to decisions to maintain alternative
sources of supply. The rule will increase the amount of pre-award and
post-award information provided to the public, but will not have a
significant economic impact.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose 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.
D. Public Comments
Eighteen public comments were received in response to the proposed
rule published in the Federal Register on January 9, 1995 (60 FR 2472).
These comments were considered in formulation of this final rule.
List of Subjects in 48 CFR Parts 2, 4, 5, 6, 14, 15, 17, 19, 25,
36, 51 and 52
Government procurement.
Dated: August 7, 1995.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Therefore, 48 CFR Chapter 1 is amended as set forth below:
1. The authority citation for 48 CFR Parts 2, 4, 5, 6, 14, 15, 17,
19, 25, 36, 51 and 52 continue to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Section 2.101 is amended by adding, in alphabetical order, the
definition Day to read as follows:
2.101 Definitions.
* * * * *
Day means, unless otherwise specified, a calendar day.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
3. Section 4.601 is amended by redesignating existing paragraph (d)
as (e); and adding a new paragraph (d) to read as follows:
4.601 Record requirements.
* * * * *
(d) In addition to the information described in paragraphs (b) and
(c) of this section, for procurements in excess of $25,000, agencies
shall be able to access information on the following from the computer
file:
(1) Awards to small disadvantaged businesses using either set-
asides or full and open competition.
(2) Awards to business concerns owned and controlled by women.
(3) The number of offers received in response to a solicitation.
(4) Task or delivery order contracts.
(5) Contracts for the acquisition of commercial items.
* * * * *
PART 5--PUBLICIZING CONTRACT--ACTIONS
4. Section 5.201 is amended by revising paragraph (a) to read as
follows:
5.201 General.
(a) As required by the Small Business Act (15 U.S.C. 637(e)) and
the Office of Federal Procurement Policy Act (41 U.S.C. 416), agencies
shall furnish for publication in the Commerce Business Daily (CBD)
notices of proposed contract actions as specified in paragraph (b) of
this section.
* * * * *
5. Section 5.202 is amended at the end of paragraph (a)(13) by
removing the word ``or''; at the end of paragraph (a)(14) by removing
the period and inserting ``; or'' in its place; and by adding paragraph
(a)(15) to read as follows:
5.202 Exceptions.
* * * * *
(a) * * *
(15) The contract action is made under conditions described in
6.302-3 with respect to the services of an expert to support the
Federal Government in any current or anticipated litigation or dispute.
* * * * *
6. Section 5.301 is amended at the end of paragraph (b)(6) by
removing ``or''; at the end of paragraph (b)(7) by removing the period
and inserting ``; or''; and by adding paragraph (b)(8) to read as
follows:
5.301 General.
* * * * *
(b) * * *
(8) The award is for the services of an expert to support the
Federal Government in any current or anticipated litigation or dispute
pursuant to the exception to full and open competition authorized at
6.302-3.
* * * * *
5.303 [Amended]
7. Section 5.303 is amended in paragraph (b)(2) by removing the
citation ``15.1001(c)'' and inserting ``15.1002(c)'' in its place.
PART 6--COMPETITION REQUIREMENTS
8. Section 6.202 is amended by revising paragraph (a)(1); at the
end of paragraph (a)(2) by removing ``or''; at the end of paragraph
(a)(3) by removing the period and inserting a semicolon; and adding
paragraphs (a)(4) through (a)(6) to read as follows:
6.202 Establishing or maintaining alternative sources.
(a) * * *
(1) Increase or maintain competition and likely result in reduced
overall costs for the acquisition, or for any anticipated acquisition;
* * * * *
(4) Ensure the continuous availability of a reliable source of
supplies or services;
(5) Satisfy projected needs based on a history of high demand; or
[[Page 42654]]
(6) Satisfy a critical need for medical, safety, or emergency
supplies.
* * * * *
9. Section 6.302-3 is amended by revising the heading and paragraph
(a)(2); and by adding paragraph (b)(3) to read as follows:
6.302-3 Industrial mobilization; engineering, developmental, or
research capability; or expert services.
(a) * * *
(2) Full and open competition need not to be provided for when it
is necessary to award the contract to a particular source or sources in
order:
(i) to maintain a facility, producer, manufacturer, or other
supplier available for furnishing supplies or services in case of a
national emergency or to achieve industrial mobilization,
(ii) to establish or maintain an essential engineering, research,
or other nonprofit institution or a federally funded research and
development center, or
(iii) to acquire the services of an expert for any current or
anticipated litigation or dispute.
(b) * * *
(3) Use of the authority in paragraph (a)(2)(iii) of this section
may be appropriate when it is necessary to acquire the services of
either--
(i) An expert to use, in any litigation or dispute (including any
reasonably foreseeable litigation or dispute) involving the Government
in any trial, hearing, or proceeding before any court, administrative
tribunal, or agency, whether or not the expert is expected to testify.
Examples of such services include, but are not limited to:
(A) Assisting the Government in the analysis, presentation, or
defense of any claim or request for adjustment to contract terms and
conditions, whether asserted by a contractor or the Government, which
is in litigation or dispute, or is anticipated to result in dispute or
litigation before any court, administrative tribunal, or agency, or
(B) Participating in any part of an alternative dispute resolution
process, including but not limited to evaluators, fact finders, or
witnesses, regardless of whether the expert is expected to testify; or
(ii) A neutral person, e.g., mediators or arbitrators, to
facilitate the resolution of issues in an alternative dispute
resolution process.
* * * * *
10. Section 6.302-5 is amended by revising paragraph (c)(1) and
adding paragraph (c)(3) to read as follows:
6.302-5 Authorized or required by statute.
* * * * *
(c) Limitations. (1) This authority shall not be used when a
provision of law requires an agency to award a new contract to a
specified non-Federal Government entity unless the provision of law
specifically--
(i) Identifies the entity involved;
(ii) Refers to 10 U.S.C. 2304(j) for armed services acquisitions or
section 303(h) of the Federal Property and Administrative Services Act
of 1949 for civilian agency acquisitions; and
(iii) States that award to that entity shall be made in
contravention of the merit-based selection procedures in 10 U.S.C.
2304(j) or section 303(h) of the Federal Property and Administrative
Services Act, as appropriate. However, this limitation does not apply--
(A) When the work provided for in the contract is a continuation of
the work performed by the specified entity under a preceding contract;
or
(B) To any contract requiring the National Academy of Sciences to
investigate, examine, or experiment upon any subject of science or art
of significance to an executive agency and to report on those matters
to the Congress or any agency of the Federal Government.
* * * * *
(3) The authority in (a)(2)(ii) of this subsection may be used only
for purchases of brand-name commercial items for resale through
commissaries or other similar facilities. Ordinarily, these purchases
will involve articles desired or preferred by customers of the selling
activities (but see 6.301(d)).
11. Section 6.304 is amended by revising paragraph (a)(2) to read
as follows:
6.304 Approval of the justification.
(a) * * *
(2) For a proposed contract over $100,000 but not exceeding
$1,000,000, by the competition advocate for the procuring activity
designated pursuant to 6.501 or an official described in paragraph
(a)(3) or (a)(4) of this section. This authority is not delegable.
* * * * *
PART 14--SEALED BIDDING
12. Section 14.408-1 is amended by revising paragraphs (a)(1) and
(d)(2) to read as follows:
14.408-1 General.
(a) * * *
(1) by written or electronic notice,* * *
* * * * *
(d) * * *
(2) Use of the Award portion of SF 33, SF 26, or SF 1447, does not
preclude the additional use of informal documents, including telegrams
or electronic transmissions, as notices of awards.
13. Section 14.409-1 is revised to read as follows:
14.409-1 Award of unclassified contracts.
(a)(1) The contracting officer shall as a minimum (subject to any
restrictions in Subpart 9.4)--
(i) Notify each unsuccessful bidder in writing or electronically
within three days after contract award, that its bid was not accepted.
``Day,'' for purposes of the notification process, means calendar day,
except that the period will run until a day which is not a Saturday,
Sunday, or legal holiday;
(ii) Extend appreciation for the interest the unsuccessful bidder
has shown in submitting a bid; and
(iii) When award is made to other than a low bidder, state the
reason for rejection in the notice to each of the unsuccessful low
bidders.
(2) For acquisitions subject to the Trade Agreements Act or the
North American Free Trade Agreement (NAFTA) Implementation Act (see
25.405(e)), agencies shall include in notices given unsuccessful
bidders from designated or NAFTA countries--
(i) The dollar amount of the successful bid; and
(ii) The name and address of the successful bidder.
(b) Information included in paragraph (a)(2) of this subsection
shall be provided to any unsuccessful bidder upon request except when
multiple awards have been made and furnishing information on the
successful bids would require so much work as to interfere with normal
operations of the contracting office. In such circumstances, only
information concerning location of the abstract of offers need be
given.
(c) When a request is received concerning an unclassified
invitation from an inquirer who is neither a bidder nor a
representative of a bidder, the contracting officer should make every
effort to furnish the names of successful bidders and, if requested,
the prices at which awards were made. However, when such requests
require so much work as to interfere with the normal operations of the
contracting office, the inquirer will be advised where a copy of the
abstract of offers may be seen.
(d) Requests for records shall be governed by agency regulations
implementing Subpart 24.2.
14.503-1 [Amended]
14. Section 14.503-1 is amended at the end of paragraph (g) by
removing the phrase ``(see 15.1003)'' and inserting ``(see 15.1004)''
in its place.
[[Page 42655]]
PART 15--CONTRACTING BY NEGOTIATION
15.406-5 [Amended]
15. Section 15.406-5 is amended in paragraph (c) by inserting the
word ``significant'' after the word ``all''; and by removing the phrase
``(see 15.605(e) and (f)'' and inserting in its place ``(see 15.605(d)
and (e)''.
16. Section 15.407 is amended by revising paragraph (d)(4) to read
as follows:
15.407 Solicitation provisions.
* * * * *
(d) * * *
(4) Insert in RFP's the provision at 52.215-16, Contract Award.
(i) If the RFP is for construction, the contracting officer shall
use the provision with its Alternate I. If awards are to be made
without discussions, also use Alternate II.
(ii) If the contracting officer intends to evaluate offers and make
award without discussions, use the basic provision with its Alternate
II.
* * * * *
15.412 [Amended]
17. Section 15.412 is amended in the second sentence of paragraph
(d) by removing the citation ``15.1001(c)(1)'' and inserting
``15.1002(c)(1)'' in its place.
18. Section 15.605 is amended by revising the heading, and
paragraphs (a), (b)(1) introductory text, (b)(1)(iii), (b)(2), and (d)
to read as follows:
15.605 Evaluation factors and subfactors.
(a) The factors and subfactors that will be considered in
evaluating proposals shall be tailored to each acquisition and shall
include only those factors that will have an impact on the source
selection decision.
(b)(1) The evaluation factors and subfactors that apply to an
acquisition and the relative importance of those factors and subfactors
are within the broad discretion of agency acquisition officials except
that--
* * * * *
(iii) Quality shall be addressed in every source selection through
inclusion in one or more of the non-cost evaluation factors or
subfactors, such as past performance, technical excellence, management
capability, personnel qualifications, prior experience, and schedule
compliance.
* * * * *
(2) Any other relevant factors or subfactors, such as cost realism,
may also be included.
* * * * *
(d)(1) The solicitation should be structured to provide for the
selection of the source whose proposal offers the greatest value to the
Government in terms of performance, risk management, cost or price, and
other factors. At a minimum, the solicitation shall clearly state the
significant evaluation factors, such as cost or price, cost or price-
related factors, past performance and other non-cost or non-price-
related factors, and any significant subfactors, that will be
considered in making the source selection, and their relative
importance (see 15.406-5(c)). The solicitation shall inform offerors of
minimum requirements that apply to particular evaluation factors and
significant subfactors. Further, the solicitation shall state whether
all evaluation factors other than cost or price, when combined, are--
(i) Significantly more important than cost or price;
(ii) Approximately equal to cost or price; or
(iii) Significantly less important than cost or price.
(2) The solicitation may elaborate on the relative importance of
factors and subfactors at the discretion of the contracting officer.
Agencies may elect to assign numerical weights to evaluation factors
and employ those weights when evaluating proposals. Numerical weights
need not be disclosed in solicitations; however, nothing precludes an
agency from disclosing the weights on a case-by-case basis. The
solicitation may state that award will be made to the offeror that
meets the solicitation's minimum criteria for acceptable award at the
lowest cost or price.
* * * * *
15.609 [Amended]
19. Section 15.609 is amended in paragraph (c) by removing ``(see
15.1001(b))'' and inserting ``(see 15.1002(b))'' in its place.
20. Section 15.610 is amended by revising paragraphs (a) and (b) to
read as follows:
15.610 Written or oral discussion.
(a) The requirement in paragraph (b) of this section for written or
oral discussion need not be applied in acquisitions--
(1) In which prices are fixed by law or regulation;
(2) Of the set-aside portion of a partial set-aside; or
(3) In which the solicitation notified all offerors that the
Government intends to evaluate proposals and make award without
discussion, unless the contracting officer determines that discussions
(other than communications conducted for the purpose of minor
clarification) are considered necessary (see 15.407(d)(4)). Once the
Government states its intent to award without discussion, the rationale
for reversal of this decision shall be documented in the contract file.
(b) Except as provided in paragraph (a) of this section, the
contracting officer shall conduct written or oral discussions with all
responsible offerors who submit proposals within the competitive range.
The content and extent of the discussions is a matter of the
contracting officer's judgment, based on the particular facts of each
acquisition (but see paragraphs (c) and (d) of this section).
* * * * *
21. Section 15.612 is amended by revising paragraph (f) to read as
follows:
15.612 Formal source selection.
* * * * *
(f) Postaward notices and debriefings. See 15.1002(c) and 15.1004.
15.1001 through 15.1005 [Redesignated as 15.1002 through 15.1006]
22. Sections 15.1001 through 15.1005 are redesignated as 15.1002
through 15.1006, respectively; and a new 15.1001 is added to read as
follows:
15.1001 General.
This subpart applies to the use of competitive proposals, as
described in 6.102(b), and a combination of competitive procedures, as
described in 6.102(c). To the extent practicable, however, the
procedures and intent of this subpart, with reasonable modification,
should be followed for acquisitions described in 6.102(d): broad agency
announcements, small business innovation research contracts, and
architect-engineer contracts. However, they do not apply to multiple
award schedules, as described in 6.102(d)(3).
23. Newly designated section 15.1002 is amended by revising
paragraph (a), and the introductory text of paragraph (b)(2); by
removing paragraph (c)(2) and redesignating paragraph (c)(3) as (c)(2);
and by amending the newly designated paragraph (c)(2) by removing
``15.1001(c)(1)(i)'' and inserting ``15.1002(c)(1)(i)''. The revised
text reads as follows:
15.1002 Notifications to unsuccessful offerors.
(a) General. Within three days after the date of contract award,
the contracting officer shall notify, in writing or electronically,
each offeror whose proposal is determined to be
[[Page 42656]]
unacceptable or whose offer is not selected for award. ``Day,'' for
purposes of the notification process, means calendar day, except that
the period will run until a day which is not a Saturday, Sunday, or
legal holiday.
(b) * * *
(2) In a small business set-aside (see Subpart 19.5), upon
completion of negotiations and determinations of responsibility, but
prior to award, the contracting officer shall notify each unsuccessful
offeror in writing or electronically of the name and location of the
apparent successful offeror. The notice shall also state that:
* * * * *
24. Newly designated section 15.1003 is amended by revising the
first sentence to read as follows:
15.1003 Notification to successful offeror.
The contracting officer shall award a contract with reasonable
promptness to the successful offeror (selected in accordance with
15.611(d)) by transmitting written or electronic notice of the award to
that offeror (but see 15.608(b)). * * *
25. Newly designated section 15.1004 is revised to read as follows:
15.1004 Debriefing of offerors.
(a) When a contract is awarded on the basis of competitive
proposals, an offeror, upon its written request received by the agency
within three days after the date on which that offeror has received
notice of contract award, shall be debriefed and furnished the basis
for the selection decision and contract award. When practicable,
debriefing requests received more than three days after the offeror
receives notice of contract award shall be accommodated. However,
accommodating such untimely debriefing requests does not extend the
time within which suspension of performance can be required, as this
accommodation is not a ``required debriefing'' as described in FAR Part
33. To the maximum extent practicable, the debriefing should occur
within five days after receipt of the written request. ``Day,'' for
purposes of the debriefing process, means calendar day, except that the
period will run until a day which is not a Saturday, Sunday, or legal
holiday.
(b) Debriefings of successful and unsuccessful offerors may be done
orally, in writing, by electronic means, or any other method acceptable
to the contracting officer.
(c) The contracting officer should normally chair any debriefing
session held. Individuals actually responsible for the evaluations
shall provide support. If the contracting officer is unavailable,
another agency representative may be designated by the contracting
officer on a case-by-case basis, with the approval of an individual a
level above the contracting officer.
(d) At a minimum, the debriefing information shall include--
(1) The Government's evaluation of the significant weaknesses or
deficiencies in the offeror's proposal, if applicable;
(2) The overall evaluated cost or price and technical rating, if
applicable, of the successful offeror and the debriefed offeror;
(3) The overall ranking of all offerors when any ranking was
developed by the agency during the source selection;
(4) A summary of the rationale for award;
(5) For acquisitions of commercial end items, the make and model of
the item to be delivered by the successful offeror; and
(6) Reasonable responses to relevant questions about whether source
selection procedures contained in the solicitation, applicable
regulations, and other applicable authorities were followed.
(e) The debriefing shall not include point-by-point comparisons of
the debriefed offeror's proposal with those of other offerors.
Moreover, debriefing shall not reveal any information exempt from
release under the Freedom of Information Act including--
(1) Trade secrets;
(2) Privileged or confidential manufacturing processes and
techniques;
(3) Commercial and financial information that is privileged or
confidential, including cost breakdowns, profit, indirect cost rates,
and similar information; and
(4) The names of individuals providing reference information about
an offeror's past performance.
(f) The contracting officer shall include an official summary of
the debriefing in the contract file.
(g) If, within one year of contract award, a protest causes the
agency to issue either a new solicitation or a new request for best and
final offers on the protested contract award, the agency shall make
available to all prospective offerors--
(1) Information provided in any debriefings conducted on the
original award about the successful offeror's proposal; and
(2) Other nonproprietary information that would have been provided
to the original offerors.
PART 17--SPECIAL CONTRACTING METHODS
26. Section 17.202 is amended by revising paragraph (a); and at the
end of paragraph (b)(1)(ii) by removing ``; or'' and inserting a period
in its place. The revised text reads as follows:
17.202 Use of options.
(a) Subject to the limitations of paragraphs (b) and (c) of this
section, for both sealed bidding and contracting by negotiation, the
contracting officer may include options in contracts when it is in the
Government's interest. When using sealed bidding, the contracting
officer shall make a written determination that there is a reasonable
likelihood that the options will be exercised before including the
provision at 52.217-5, Evaluation of Options, in the solicitation. (See
17.207(f) with regard to the exercise of options.)
* * * * *
27. Section 17.208 is amended by revising paragraphs (b) and (c)(4)
to read as follows:
17.208 Solicitation provisions and contract clauses.
* * * * *
(b) The contracting officer shall insert a provision substantially
the same as the provision at 52.217-4, Evaluation of Options Exercised
at Time of Contract Award, in solicitations when the solicitation
includes an option clause, the contracting officer has determined that
there is a reasonable likelihood that the option will be exercised, and
the option may be exercised at the time of contract award.
(c) * * *
(4) The contracting officer has determined that there is a
reasonable likelihood that the option will be exercised. For sealed
bids, the determination shall be in writing.
* * * * *
PART 19--SMALL BUSINESS AND SMALL DISADVANTAGED BUSINESS CONCERNS
19.302 [Amended]
28. Section 19.302 is amended in paragraph (d)(1) introductory text
by removing the word ``below'' and inserting ``of this section'' in its
place; and removing ``(see 15.1001(b)(2))'' and inserting ``(see
15.1002(b)(2))'' in its place.
19.501 [Amended]
29. Section 19.501 is amended in the second sentence of paragraphs
(h)(1) and (h)(2) by removing the citation ``15.1001(b)(2)'' and
inserting ``15.1002(b)(2) in their place.
[[Page 42657]]
PART 25--FOREIGN ACQUISITION
30. Section 25.405 is amended by revising paragraph (e) to read as
follows:
25.405 Procedures.
* * * * *
(e) Within three days after a contract award for an eligible
product, agencies shall give unsuccessful offerors from designated or
NAFTA countries notice in accordance with 14.409-1 and 15.1002.
``Day,'' for purposes of the notification process, means calendar day,
except that the period will run until a day which is not a Saturday,
Sunday, or legal holiday.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
31. Section 36.304 is amended by revising the introductory text to
read as follows:
36.304 Notice of award.
When a notice of award is issued, it shall be done in writing or
electronically, shall contain information required by 14.408, and
shall--
* * * * *
32. Section 36.607 is amended by designating the existing text as
paragraph (a) and adding paragraph (b) to read as follows:
36.607 Release of information on firm selection.
* * * * *
(b) Debriefings of successful and unsuccessful firms will be held
after final selection has taken place and will be conducted, to the
extent practicable, in accordance with 15.1004 (b) through (g). Note
that 15.1004 (d)(2) through (d)(5) does not apply to architect-engineer
contracts.
PART 51--USE OF GOVERNMENT SOURCES BY CONTRACTORS
33. Section 51.101 is amended at the end of paragraph (a)(1) by
removing ``or'' and at the end of paragraph (a)(2) by removing the
period and inserting ``; or'' and by adding paragraph (a)(3) to read as
follows:
51.101 Policy.
(a) * * *
(3) A contract under the Javits-Wagner-O'Day Act (41 U.S.C. 46, et
seq.) if:
(i) the nonprofit agency requesting use of the supplies and
services is providing a commodity or service to the Federal Government,
and
(ii) the supplies or services received are directly used in making
or providing a commodity or service, approved by the Committee for
Purchase From People Who Are Blind or Severely Disabled, to the Federal
Government (See Subpart 8.7).
* * * * *
34. Section 51.102 is amended by revising the second sentence of
paragraph (a) introductory text to read as follows:
51.102 Authorization to use Government supply sources.
(a) * * * Except for findings under 51.101(a)(3), the determination
shall be based on, but not limited to, considerations of the following
factors:
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
35. Section 52.215-16 is amended by revising the date in the
provision heading and by revising paragraph (c); by adding paragraph
(h); by removing Alternate II and redesignating Alternate III as
Alternate II; and revising Alternates I and II to read as follows:
52.215-16 Contract Award.
* * * * *
Contract Award (Oct 1995)
* * * * *
(c) The Government intends to evaluate proposals and award a
contract after conducting written or oral discussions with all
responsible offerors whose proposals have been determined to be
within the competitive range. However, each initial offer should
contain the offeror's best terms from a cost or price and technical
standpoint.
* * * * *
(h) The Government may disclose the following information in
post-award debriefings to other offerors: (1) the overall evaluated
cost or price and technical rating of the successful offeror; (2)
the overall ranking of all offerors, when any ranking was developed
by the agency during source selection; (3) a summary of the
rationale for award; and (4) for acquisitions of commercial end
items, the make and model of the item to be delivered by the
successful offeror.
(End of provision)
Alternate I (OCT 1995). As prescribed in 15.407(d)(4)(i),
substitute the following paragraph (d) for paragraph (d) of the
basic provision:
(d) The Government may accept any item or combination of items,
unless doing so is precluded by a restrictive limitation in the
solicitation or offer.
Alternate II (OCT 1995). As prescribed in 15.407(d)(4)(ii),
substitute the following paragraph (c) for paragraph (c) of the
basic provision:
(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
initial 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 later determined by the Contracting
Officer to be necessary.
[FR Doc. 95-19859 Filed 8-15-95; 8:45 am]
BILLING CODE 6820-EP-M
