32580 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Proposed Rules

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 5, 13, 14, 15, 19, 25, 33,

and 36

[FAR Case 96–304]

RIN 9000–AH13

Federal Acquisition Regulation;

Preaward Debriefings

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council are

proposing to amend the Federal

Acquisition Regulation (FAR) to

implement Section 4104 of the Federal

Acquisition Reform Act of 1996. The

proposed rule requires that, prior to

contract award, contracting officers

provide a debriefing to any interested

offeror on the reasons for that offeror’s

exclusion from the competitive range in

a competitive negotiation. 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 August 23, 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 and F Streets,

NW., Room 4037, Washington, DC

20405.

Please cite FAR case 96–304 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 96–304.

SUPPLEMENTARY INFORMATION:

A. Background

Section 4104 of the Federal

Acquisition Reform Act of 1996 (Public

Law 104–106) requires that, prior to

contract award, contracting officers

provide a debriefing to any interested

offeror on the reasons for that offeror’s

exclusion from the competitive range in

a competitive negotiation. The

contracting officer may refuse a

preaward debriefing request if it is not

in the best interests of the government

to conduct a debriefing at that time.

Section 4104 also requires that the

debriefings include the following

information: the agency’s evaluation of

the significant elements in the offeror’s

proposal; a summary of the rationale for

the offeror’s exclusion; and reasonable

responses to relevant questions posed

by the debriefed offeror as to whether

the source selection procedures in the

solicitation and applicable regulations

were followed by the agency.

B. Regulatory Flexibility Act

This proposed rule is not expected 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, et seq.,

because the rule provides for earlier

debriefings to unsuccessful offerors but

does not significantly alter the amount

of information provided to unsuccessful

offerors. Therefore, an Initial Regulatory

Flexibility Analysis has not been

performed. Comments from small

entities concerning the affected FAR

subpart will be considered in

accordance with 5 U.S.C. 610 of the Act.

Such comments must be submitted

separately and should cite 5 U.S.C. 601,

et seq. (FAR case 96–304), in

correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the proposed 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.

List of Subjects in 48 CFR Parts 5, 13,

14, 15, 19, 25, 33, and 36

Government procurement.

Dated: June 18, 1996.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, it is proposed that 48 CFR

Parts 5, 13, 14, 15, 19, 25, 33 and 36 be

amended as set forth below:

1. The authority citation for 48 CFR

Parts 5, 13, 14, 15, 19, 25, 33 and 36

continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

CHAPTER 1—[AMENDED]

2. In the list below, for each section

listed in the left column, remove the

citation listed in the middle column,

and insert the citation in the last

column:

Section Remove Insert

5.303(b)(2) .......................................................................................................................................................... 15.1002(c) ........ 15.1003(b)

13.106–1(c)(2) .................................................................................................................................................... 15.1001(c)(3) .... 15.1003(b)(2)

15.412(d) ............................................................................................................................................................ 15.1002(c)(1) .... 15.1003(b)(1)

15.609(c) ............................................................................................................................................................ 15.1002(b) ........ 15.1003

19.302(d)(1) ........................................................................................................................................................ 15.1002(b)(2) .... 15.1003(a)(2)

19.501(h)(1) ........................................................................................................................................................ 15.1002(b)(2) .... 15.1003(a)(2)

19.501(h)(2) ........................................................................................................................................................ 15.1002(b)(2) .... 15.1003(a)(2)

25.405(e) ............................................................................................................................................................ 15.1002 ............ 15.1003

33.104(c)(1) ........................................................................................................................................................ 15.1004 ............ 15.1006

33.105(d)(1) (intro text) ...................................................................................................................................... 15.1004 ............ 15.1006

PART 14—SEALED BIDDING

3. Section 14.503–1(g) is revised in

the second sentence to read as follows:

14.503–1 Step one.

* * * * *

(g) * * * Upon written request, the

contracting Officer shall debrief

unsuccessful offerors (see 15.1005 and

15.1006.

* * * * *

PART 15—CONTRACTING BY

NEGOTIATION

4. Section 15.612(f) is revised to read

as follows:
Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Proposed Rules 32581

15.612 Formal source selection.

* * * * *

(f) Notices and debriefings. See

15.1003, 15.1004, 15.1005, and 15.1006.

5. Subpart 15.10 is revised to read as

follows:

Subpart 15.10—Preaward, Award, and

Postaward Notifications, Protests, and

Mistakes

Sec.

15.1001 Definition.

15.1002 Applicability.

15.1003 Notifications to unsuccessful

offerors.

15.1004 Notification to successful offeror.

15.1005 Preaward debriefing of offerors.

15.1006 Postaward debriefing of offerors.

15.1007 Protests against award.

15.1008 Discovery of mistakes.

Subpart 15.10—Preaward, Award, and

Postaward Notifications, Protests, and

Mistakes

15.1001 Definition.

’’Day,’’ as used in this subpart, means

calendar day, except that the period will

run until a day which is not a Saturday,

Sunday, or legal holiday.

15.1002 Applicability.

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).

15.1003 Notifications to unsuccessful

offerors.

(a) Preaward notices. (1) Preaward

notices of exclusion from competitive

range. The contracting officer shall

promptly notify offerors when their

proposals are excluded from the

competitive range. The notice shall state

the basis for the determination and that

a proposal revision will not be

considered.

(2) Preaward notices for small

business set-asides. 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 offeror in writing of the

name and location of the apparent

successful offeror. The notice shall also

state that

(i) The Government will not consider

subsequent revisions of the offeror’s

proposal, and

(ii) No response is required unless a

basis exists to challenge the small

business size status of the apparently

successful offeror. The notice is not

required when the contracting officer

determines in writing that the urgency

of the requirement necessitates award

without delay.

(b) Postaward notices. Within three

days after the date of contract award, the

contracting officer shall provide written

notification to each offeror whose

proposal was in the competitive range

but not selected for award (Public Law

103–355).

(1) The notice shall include—

(i) The number of offerors solicited;

(ii) The number of proposals received;

(iii) The name and address of each

offeror receiving an award;

(iv) The items, quantities, and unit

prices of each award (if the number of

items or other factors makes listing unit

prices impracticable, only the total

contract price need be furnished); and

(v) In general terms, the reasons the

offeror’s proposal was not accepted,

unless the price information in

paragraph (b)(1)(iv) of this section

readily reveals the reason. In no event

shall an offeror’s cost breakdown, profit,

overhead rates, trade secrets,

manufacturing processes and

techniques, or other confidential

business information be disclosed to

any other offeror.

(2) Upon request, the contracting

officer shall furnish the information

described in paragraphs (b)(1) (i)

through (v) of this section to

unsuccessful offerors in solicitations

using simplified acquisition procedures

in part 13.

(3) Upon request, after contract award,

the contracting officer shall provide the

information in paragraphs (b)(1) (i)

through (v) of this section to

unsuccessful offerors who received a

preaward notice of exclusion from the

competitive range.

15.1004 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 notice of the award

to that offeror (but see 15.608(b)). When

an award is made to an offeror for less

than all of the items that may be

awarded to that offeror and additional

items are being withheld for subsequent

award, each notice shall state that the

Government may make subsequent

awards on those additional items within

the offer acceptance period.

15.1005 Preaward debriefing of offerors.

Offerors excluded from the

competitive range may request a

debriefing before award (10 U.S.C.

2305(b)(6)(A) and 41 U.S.C. 253b(f)–(h)).

The process for preaward debriefings

follows:

(a) The offeror may request a

preaward debriefing by submitting a

written request for debriefing to the

contracting officer within three days

after the receipt of notice of exclusion

from the competitive range. If the offeror

does not submit a timely request, the

offeror need not be given either a

preaward or a postaward debriefing.

Offerors are entitled to no more than

one debriefing for each proposal.

(b) The contracting officer should

provide a debriefing to the offeror as

soon as practical. If providing a

preaward debriefing is not in the best

interest of the Government at the time

it is requested, the contracting officer

may delay the debriefing, but shall

provide the debriefing no later than the

time postaward debriefings are provided

under 15.1006. In that event, the

contracting officer shall include the

information at 15.1006(d) in the

debriefing.

(c) Debriefings may be done orally, in

writing, or by any other method

acceptable to the contracting officer.

(d) The contracting officer should

normally chair any debriefing session

held. Individuals who conducted 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, if approved by an

individual at a level above the

contracting officer.

(e) At a minimum, preaward

debriefings shall include—

(1) The agency’s evaluation of

significant elements in the offeror’s

proposal;

(2) A summary of the rationale for

excluding the offeror from the

competitive range; and

(3) Reasonable responses to relevant

questions about whether source

selection procedures contained in the

solicitation, applicable regulations, and

other applicable authorities were

followed in the process of excluding the

offeror from the competitive range.

(f) Preaward debriefings shall not

disclose—

(1) The number of offerors;

(2) The identify of other offerors;

(3) The content of other offeror’s

proposals;

(4) The ranking of other offerors;

(5) The evaluation of other offerors; or

(6) Any of the information prohibited

in 15.1006(e).
32582 Federal Register / Vol. 61, No. 122 / Monday, June 24, 1996 / Proposed Rules

(g) The contracting officer shall

include an official summary of the

debriefing in the contract file.

15.1006 Postaward debriefing of offerors.

(a) 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. An offeror who failed to

submit a timely request under

15.1005(a) is not entitled to a debriefing.

When practicable, debriefing requests

received more than three days after the

offeror receives notice of contract award

may be accommodated. However,

accommodating untimely debriefing

requests does not extend the time

within which suspension of

performance can be required because

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.

(b) Debriefings of successful and

unsuccessful offerors may be done

orally, in writing, or by any other

method acceptable to the contracting

officer.

(c) The contracting officer should

normally chair any debriefing session

held. Individuals who conducted the

evaluation 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, the

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.

15.1007 Protests against award.

(a) Protests against award in

negotiated acquisitions shall be treated

substantially the same as in sealed

bidding (see subpart 33.1). Use of

agency protest procedures which

incorporate the alternative dispute

resolution provisions of Executive Order

12979 is encouraged for both preaward

and postaward protests.

(b) 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 prospective

offerors or original offerors still within

the competitive range, respectively—

(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.

15.1008 Discovery of mistakes.

For treatment of mistakes in an

offeror’s proposal that are discovered

before award, see 15.607. Mistakes in a

contractor’s proposal that are disclosed

after award shall be processed in

accordance with 14.407–4.

PART 36—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

6. Section 36.607(b) is revised 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 and 15.1006

(b) through (g). Note that 15.1006(d) (2)

through (d)(5) does not apply to

architect-engineer contracts.

[FR Doc. 96–15901 Filed 6–21–96; 8:45 am]

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