04-7408. Federal Acquisition Regulation; Unsolicited Proposals

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 Section 834 of the Homeland Security Act of 2002 (Public Law 107-296). Section 834 adds new considerations concerning the submission, receipt, evaluation, and acceptance or rejection of unsolicited proposals.

DATES:

Effective Date: May 5, 2004.

FOR FURTHER INFORMATION CONTACT:

The FAR Secretariat at [phone] for information pertaining to status or publication schedules. For clarification of content, contact Ms. Julia Wise, Procurement Analyst, at [phone]. Please cite FAC 2001-22, FAR case 2002-027.

SUPPLEMENTARY INFORMATION:

A. Background

This rule amends the FAR to implement section 834 of the Homeland Security Act of 2002 (Pub. L. 107-296). Section 834 adds new considerations concerning the submission, receipt, evaluation, and acceptance or rejection of unsolicited proposals. The rule will require that a valid unsolicited proposal not address a previously published agency requirement. It also requires that, before initiating a comprehensive evaluation, the agency must determine that the proposal contains sufficient cost-related or price-related information for evaluation, and that it has overall scientific, technical, or socioeconomic merit.

DOD, GSA, and NASA published a proposed rule in the Federal Register at 68 FR 33330, June 3, 2003. A comment was received from one respondent. The Councils considered the comment before agreeing to publish the proposed rule as final. A summary of the comment and the disposition follows:

Comment: The proposed language in FAR 15.606-1(a)(4), Receipt and initial review, should be revised to more closely mirror the wording in Section 834 as follows: “Contains sufficient technical and cost information including cost-related or price related factors for evaluation.”

Response: The Councils do not concur. Proposals do not typically include cost-related or price-related factors. Such factors are developed by agencies in competitive acquisitions prior to soliciting proposals and are used to assess the offeror's proposal and the offeror's ability to perform the prospective contract successfully. This allows all proposals to be evaluated for award based on the identical factors. Inserting a requirement for proposals to contain factors would likely create confusion between the competitive selection process and the unsolicited proposal process. The addition of the phrase “and cost-related or price-related information” instead of “factors” more clearly addresses the requirements of statute and is consistent with established procedures for initial review of unsolicited proposals.

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 Flexibility Act, 5 U.S.C. 601, et seq., because, while we have made changes in accordance with plain language guidelines, we have not substantively changed procedures for award and administration of contracts.

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 15

• Government procurement

Dated: March 26, 2004.

Laura Auletta,

Director, Acquisition Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR part 15 as set forth below:

PART 15—CONTRACTING BY NEGOTIATION

1. The authority citation for 48 CFR part 15 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).

2. Amend section 15.603 by removing “and” from the end of paragraph (c)(4); removing the period from the end of paragraph (c)(5) and adding “; and” in its place; and adding a new paragraph (c)(6) to read as follows:

15.603

General.

* * * * *

(c) * * *

(6) Not address a previously published agency requirement.

* * * * *

3. In section 15.606-1, amend paragraph (a) by—

a. Revising paragraph (a)(4);

b. Redesignating paragraphs (a)(5) and (a)(6) as (a)(6) and (a)(7), respectively; and

c. Adding a new paragraph (a)(5). The revised and added text reads as follows:

15.606-1

Receipt and initial review.

(a) * * *

(4) Contains sufficient technical information and cost-related or price-related information for evaluation;

(5) Has overall scientific, technical, or socioeconomic merit;

* * * * *