Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Proposed Rules 67113

causing the overpayment. The Board may

recover the remainder of the overpayment by

setoff against the widow’s annuity. However,

it may forego recovery under this section if

such recovery would be contrary to the

purpose of the Railroad Retirement Act as

defined in § 255.12. Since this is not a waiver

of the overpayment, the Board is free to

recover the overpayment from the widow at

a later date, for example, if an accrual of

benefits should become payable, or if it

determines that such recovery would not be

against the purpose of the Railroad

Retirement Act.

Example (2): A representative payee for a

retarded child, through her own fault, causes

an overpayment in the child’s annuity. The

overpaid amounts were used for the benefit

of the child. The representative payee dies

before the overpayment can be recovered

from her and she leaves no estate. The Board

may not waive the remainder of the

overpayment with respect to the child since

for purposes of waiver the representative

payee is considered the overpaid individual

(see § 255.18) and the overpaid individual

was at fault. However, if the child was not

at fault in causing the overpayment and

recovery would be contrary to the purpose of

the Railroad Retirement Act as defined in

§ 255.12, then the Board may forego recovery

of the overpayment from the child’s annuity

under this section.

§ 255.18 Recovery of overpayments from a

representative payee.

(a) Joint liability. In general, if an

overpayment is made to an individual

receiving benefits as a representative

payee (see part 266 of this chapter) the

Board may recovery the overpayment

from either the representative payee or

the beneficiary, or both. If the

beneficiary is currently receiving

benefits, either in his or her own right

or through a representative payee, the

Board will generally propose to recover

the overpayment by setoff against those

benefits as provided for in § 255.6 of

this part. If the beneficiary is not

currently receiving benefits but the

representative payee is receiving

benefits, then the Board will generally

propose to recover the overpayment by

setoff against those benefits.

(b) Waiver of overpayments. For

purposes of § 255.10 (Waiver of

recovery), if it is determined that the

representative payee was at fault in

causing the overpayment there may be

no waiver of the overpayment either as

to the representative payee or the

beneficiary. However, if the beneficiary

was not at fault in causing the

overpayment he or she may be eligible

for administrative relief from recovery

under § 255.17.

(c) This section may be illustrated by

the following examples:

Example (1). M is receiving a child’s

annuity as a representative payee for her

disabled son, S. With M’s knowledge S

marries. Although both M and S know that

marriage terminates the child’s annuity,

neither of them informs the Board of this

event. Both M and S are liable for any

overpayment caused. Wavier is not available

since M would be considered at fault in

causing the overpayment. Administrative

relief from recovery is not available to S since

he would also be considered at fault.

Example (2). R is a representative payee for

B, who resides in a skilled-care facility. R is

found to be at fault in causing an

overpayment of benefits to B. The Board may

recover the overpayment from either R or B.

Waiver is not available because R was at fault

in causing the overpayment. However, if B

was not at fault in causing the overpayment

he or she may be entitled to administrative

relief from recovery under § 255.17.

§ 255.19 Compromise of overpayments.

(a) This section sets forth the

principal standards which the Board

applies in exercising its authority under

31 U.S.C. 3711 to compromise an

overpayment. In addition, the Board

may compromise an overpayment under

the Federal Claims Collection Standards

set forth in 4 CFR part 103.

(b) An overpayment may be

compromised only if it is in the best

interest of the agency. Circumstances

and factors to be considered are:

(1) The overpayment cannot be

collected because of the overpaid

individual’s inability to pay the full

amount of the overpayment within a

reasonable time;

(2) The overpaid individual refuses to

pay the overpayment in full and it

appears that enforced collection

procedures will take an inordinate

amount of time or that the cost of

collecting does not justify the enforced

collection of the full amount; or

(3) There is doubt that the Board

could prove its case in court for the full

amount claimed because of a bona fide

dispute as to the facts or because of the

legal issues involved.

§ 255.20 Suspension or termination of the

collection of overpayments.

This section sets forth the principal

standards which the Board applies in

approving the suspension or

termination of the collection of an

overpayment. In addition the Board may

suspend or terminate collection under

the Federal Claims Collection Standards

set forth in 4 CFR part 104.

(a) Collection action on a Board claim

may be suspended temporarily when

the debtor cannot be located and there

is reason to believe future collection

action may be productive or collection

may be effected by offset in the near

future.

(b) Collection action may be

terminated when:

(1) The debtor is unable to make any

substantial payment;

(2) The debtor cannot be located and

offset is too remote to justify retention

of the claim;

(3) The cost of collection action will

exceed the amount recoverable; or

(4) The claim is legally without merit

or cannot be substantiated by the

evidence.

Dated: December 20, 1995.

By Authority of the Board.

For the Board.

Beatrice Ezerski,

Secretary of the Board.

[FR Doc. 95–31311 Filed 12–27–95; 8:45 am]

BILLING CODE 7905–01–M

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Part 15

Federal Acquisition Regulation;

Contracting by Negotiations; FAR Part

15 Rewrite

AGENCIES: Department of Defense,

General Services Administration, and

National Aeronautics and Space

Administration.

ACTION: Advance notice of proposed

rulemaking.

SUMMARY: Comments are solicited from

both government and industry

personnel on how FAR Part 15 can be

rewritten to better support contracting

by negotiation. The Director of Defense

Procurement, in concert with the

Federal Acquisition Regulatory Council,

is sponsoring an initiative to rewrite

Federal Acquisition Regulation (FAR)

Part 15, Contracting by Negotiation. The

goal is to make Part 15 easier to

understand and to eliminate policies,

procedures, or requirements that impose

unnecessary burdens on contractors or

contracting officers. Regulatory

requirements that are not required by

statute, required to ensure adequately

standardized government business

practices, or required to protect the

public interest will be considered for

elimination. Innovative means of

simplifying the procurement process

and enhancing its efficiency will be

considered for incorporation into the

regulation.

Comments may be submitted in two

formats: (1) By letter to the address

below, or (2) by electronic response on

the Acquisition Reform Network’s FAR

Part 15 Rewrite Forum located on the
67114 Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Proposed Rules

Internet at http://www-far.npr.gov. All

comments received will be posted in the

Acquisition Reform Network’s FAR Part

15 Rewrite Forum.

DATES: Comments are due on or before

January 16, 1996.

ADDRESSES: Send comments to the Part

15 Rewrite Committee Chair, Ms.

Melissa Rider, DAR Council, Attn: IMD

3D139, PDUSD(A&T)DP/DAR, 3062

Defense Pentagon, Washington, D.C.

20301–3062.

FOR FURTHER INFORMATION CONTACT:

Ms. Melissa Rider, telephone (703) 602–

0131. FAX (703) 602–0350.

SUPPLEMENTARY INFORMATION: An

interagency team has been established

to rewrite FAR Part 15. The team

members are drawn from the

Department of Defense, civilian

agencies, and the Office of Federal

Procurement Policy. The team chair is

Ms. Melissa Rider, with the Department

of Defense. The team vice chair is Ms.

Frances Sullivan, with the National

Aeronautics and Space Agency (NASA).

The team is soliciting comments on

recommended changes to Part 15. The

following topics have already been

raised by the Administrator, Office of

Federal Procurement Policy, as potential

areas of interest. Comments are

requested on these topics, and any other

ideas interested parties may offer.

1. Use of Shall: In what way do you

think Part 15 is overly prescriptive or

overly permissive? We would appreciate

your comments on this issue.

2(a). Government-Industry

Communications; Draft Solicitations:

The team is considering expanding the

use of draft RFPs. We would appreciate

your input regarding the positive or

negative impacts of using draft RFPs

and any other comments you may have

on the subject.

2(b). Government-Industry

Communications; Discussions: Within

the confines of applicable law, the team

is considering expanding the nature,

scope, and timing of discussions held

during the course of a procurement. We

would appreciate your comments

regarding the pros and cons of changing

what constitutes discussions.

2(c). Government-Industry

Communications; Oral Presentations:

FAR 15.402(f) provides for oral

solicitations in certain circumstances,

but makes no provisions for oral

circumstances, but makes no provisions

for oral presentations. The team is

considering adding guidance on the use

of oral presentations. The team would

appreciate your comments regarding the

use of oral presentations, including

experiences (good and bad) your

organization has had with their use.

3. Commercial Items: FAR 15.4,

Solicitations and Receipt of Proposals

and Quotations, and FAR 15.6, Source

Selection, do not apply to acquisitions

made using simplified acquisition

procedures. We would appreciate your

comments regarding whether

commerical items should also be

exempted from any of Part 15?

4. Source Selection: The team would

appreciate your comments on how the

Part 15 coverage of greatest value

contracting can be enhanced.

5(a). Competitive Range; No Cost

Proposal: Current coverage at FAR

15.609(a) requires the contracting officer

to determine the competitive range ‘‘on

the basis of cost or price and other

factors.’’ It has been suggested that it

would be better for both the

Government and the offeror to

determine the competitive range

without requiring a cost proposal. The

Contracting Officer would still be able

to get certain cost information (e.g.,

labor rates, past performance on cost

control, etc.) to help determine which

offerors are not in the running based on

cost, but would not get a complete cost

proposal prior to determining the

competitive range. The team solicits

your comments on benefits or

disadvantages of deleting the

requirement to consider cost in making

the initial competitive range

determination.

5(b). Competitive Range; When there

is doubt: The team directs your

attention to FAR Case number 95–008,

which was published as a proposed rule

in the Federal Register on November 6,

1995 (60 FR 56035). You may provide

comments on the proposed rule, which

deletes the statement that a proposal

should be included in the competitive

range for the purpose of conducting

discussions, if there is doubt as to

whether the proposal is in the

competitive range, through the GSA

case manager noted in the proposed

rule. The public comment period for the

proposed rule ends on January 5, 1996.

5(c). Competitive Range; Reasonable

Chance: The team solicits your

comments on the benefits or

disadvantages of changing the standard

for inclusion in the competitive range.

5(d). Competitive Range; Two-phase

Acquisitions: In using a two-phase

process, the agency would solicit

information in the first phase regarding

an offeror’s capability to perform the

contract. The offeror would not prepare

a detailed cost or technical proposal in

the first phase. Based on an offeror’s

capabilities, it would be invited to the

second phase wherein the agency would

ask for detailed technical proposals and

cost information. Several agencies are

already considering similar methods. If

you have had experience using similar

methods or would like to share your

opinions on the topic, we would

appreciate your comments.

6(a). Contract Pricing; Subcontracts:

The current coverage at FAR 15.806–

1(d) states that the prices of negotiated

subcontractors should ‘‘in no instance

* * * be accepted as the sole evidence

that [such] prices are fair and

reasonable.’’ It has been suggested that

this language be removed. We would

appreciate any comments you want to

share on the subject.

6(b). Contract Pricing: TINA: If there

are additional revisions you believe

would further the efforts of the TINA

drafting team, please let us know. The

team would also like to solicit your

opinions regarding the field pricing

support coverage at FAR 15.805–5.

7. Agency supplementation: The

public’s views are sought on the extent

to which agency supplementation of

FAR Part 15, other than internal agency

procedures, should be limited.

8. Evolving (changes to) solicitations

on commercial item acquisitions: Under

traditional procurement thinking,

contracting officials are expected to

have completed intensive needs and

product analyses before they initiate the

formal competitive procurement

process, which requires substantial

acquisition leadtimes. The public’s

views are sought regarding whether and

how the FAR provisions for making

changes to evaluation factors and

contract requirements in the acquisition

of commercial items should be modified

to ensure that agencies may more

efficiently and effectively match their

needs with commercially available

technologies and products.

9. Open negotiation techniques: In the

commercial marketplace, competitions

may involve techniques in which the

buyer releases or otherwise makes

available the bid prices of all vendors

without revealing competitive secrets

(e.g., cost breakdowns, vendor name,

etc.). These sorts of auctioning

techniques are currently prohibited in

the FAR. The public’s view are sought

on whether such prohibitions can and

should be narrowed or eliminated.

10. Use of source selection standards:

Currently, agencies develop evaluation

standards to establish a uniform

baseline to determine how well an

offeror’s proposal satisfies the source

selection evaluation criteria. Evaluation

criteria and standards can be difficult to

determine, particularly with respect to

commercial items and in cases where

the Government’s requirements are

stated in terms of performance

objectives rather than detailed
Federal Register / Vol. 60, No. 249 / Thursday, December 28, 1995 / Proposed Rules 67115

specifications. In such cases, the

offeror’s lack of knowledge of the

standards may hinder its ability to know

the basis upon which the offer will be

evaluated.

The public’s views are sought

regarding what types of acquisitions, if

any, might warrant the release of

evaluation standards as part of the

solicitation. The public’s views are also

sought on whether there are

circumstances in which proposals

should be evaluated against one another

as opposed to a set of standards.

11. Unsolicited proposals: The

public’s views are sought on whether

the FAR provisions addressing the

handling of unsolicited proposals

discourage industry from investing

independent research and development

funds in unique and innovative ideas

and, therefore, should be modified.

Linda W. Neilson,

Deputy Director, Defense Acquisition

Regulations Council.

[FR Doc. 95–31335 Filed 12–27–95; 8:45 am]

BILLING CODE 5000–04–M

48 CFR Parts 225 and 252

Defense Federal Acquisition

Regulation Supplement; Foreign

Product Restrictions

AGENCY: Department of Defense (DoD).

ACTION: Proposed rule with request for

comment.

SUMMARY: The Director of Defense

Procurement is proposing to amend the

Defense Federal Acquisition Regulation

Supplement (DFARS) to rescind most of

the non-statutory foreign product

restrictions in subpart 225.71.

DATES: Comment Date: Comments on

the proposed rule should be submitted

in writing to the address below on or

before February 26, 1996, to be

considered in the formulation of the

final rule.

ADDRESSES: Interested parties should

submit written comments to: Defense

Acquisition Regulations Council, Attn:

Ms. Amy Williams, PDUSD (A&T) DP

(DAR), IMD 3D139, 3062 Defense

Pentagon, Washington, D.C. 20301–

3062. Telefax number (703) 602–0350.

Please cite DFARS Case 95–D033 in all

correspondence related to this issue.

FOR FURTHER INFORMATION CONTACT:

Ms. Amy Williams, (703) 602–0131.

SUPPLEMENTARY INFORMATION:

A. Background

This proposed rule amends language

in the Defense Federal Acquisition

Regulation Supplement (DFARS) to

rescind most of the non-statutory

foreign product restrictions in Subpart

225.71, except for the restrictions on

several forging items, which are still

under review.

B. Regulatory Flexibility Act

The proposed rule 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 proposed rule will affect the

preference for domestic manufacturers

of miniature and instrument ball

bearings, precision components for

certain mechanical time devices, high

purity silicon, high carbon ferrochrome,

and certain foreign items. It is estimated

that approximately 135 contractors,

some of which are small businesses,

will now be subject to foreign

competition. An Initial Regulatory

Flexibility Analysis has been prepared

and may be obtained from the address

stated herein. Comments are invited

from small businesses and other

interested parties. Comments from small

entities concerning the affected DFARS

subparts will be considered in

accordance with Section 610 of the Act.

Such comments must be submitted

separately and cite DFARS Case 95–

D033 in correspondence.

C. Paperwork Reduction Act

Because many items are no longer

restricted, the proposed rule will result

in a reduction of the paperwork burden

associated with DFARS clause 252.225–

7025, Foreign Source Restrictions (OMB

Control No. 0704–0229), which requires

that contractors maintain records

showing compliance with the

restrictions until three years after final

payment and make records available

upon request of the Contracting Officer.

The rule does not impose any additional

information collection requirements

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 225 and

252

Government procurement.

Michele P. Peterson,

Executive Editor, Defense Acquisition

Regulations Council.

Therefore, 48 CFR Parts 225 and 252

are proposed to be amended as follows:

PART 225—FOREIGN ACQUISITION

1. The authority citation for 48 CFR

Parts 225 and 252 continues to read as

follows:

Authority: 41 U.S.C. 421 and 48 CFR

Chapter 1.

2. Section 225.7102 is revised to read

as follows:

225.7102 Forgings policy.

DoD requirements for the following

forging items, whether as end items or

components, shall be acquired from U.S.

or Canadian sources to the maximum

extent practicable—

Items Categories

Ship propulsion shafts Excludes service and

landing craft

shafts.

Periscope tubes ......... All.

Ring forgings for bull

gears.

All greater than 120

inches in diameter.

3. Section 225.7103 is revised to read

as follows:

225.7103 Forgings exceptions.

The policy in 225.7102 does not apply

to acquisitions—

(a) When using simplified acquisition

procedures, unless the restricted item is

the end item being purchased:

(b) Overseas for overseas use; or

(c) When the quantity acquired

exceeds the amount needed to maintain

the U.S. defense mobilization base

(provided such quantity is an

economical purchase quantity). The

restriction to domestic sources does not

apply to the quantity above that

required to maintain the base, in which

case, qualifying country sources may

compete.

4. Section 225.7104 is revised to read

as follows:

225.7104 Forgings waivers.

Upon request from a prime contractor,

the contracting officer may waive the

requirement for domestic manufacture

of the items covered by the policy in

225.7102.

PART 252—SOLICITATION

PROVISIONS AND CONTRACT

CLAUSES

5. Section 252.225–7105, is revised to

read as follows:

252.225–7025 Foreign Source

Restrictions.

As prescribed in 225.7105, use the

following clause:

Foreign Source Restrictions (XXX XXXX)

(a) Definitions. As used in this clause—

(1) ‘‘Domestic manufacture’’ means

manufactured in the United States or Canada

if the Canadian firm—

(i) Normally produces similar items or is

currently producing the item in support of

DoD contracts (as prime or subcontractor);

and

(ii) Agrees to become (upon receiving a

contract/order) a planned producer under