Federal Acquisition Regulation: Explanations to Unsuccessful Offerors on Certain Orders Under Task and Delivery Order Contracts, 53855-53857 [2023-16395]
Download as PDF
<![CDATA[
Federal Register / Vol. 88, No. 152 / Wednesday, August 9, 2023 / Proposed Rules
authority to the Bureaus to modify,
supplement, and update those
instructions and templates as
appropriate to supplement information
WCB will be receiving in response to
the 2023 Mandatory Data Collection.
6. Pursuant to their delegated
authority, the Bureaus have proposed
revisions to the instructions, templates,
and certification form for the Annual
Reports and are issuing the document to
seek comment on all aspects of these
proposed changes.
B. Legal Basis
7. The proposed action is authorized
pursuant to sections 1, 2, 4(i)–(j), 5(c),
201(b), 218, 220, 225, 255, 276, 403, and
716 of the Communications Act of 1934,
as amended, 47 U.S.C. 151, 152, 154(i)–
(j), 155(c), 201(b), 218, 220, 225, 255,
276, 403, and 617, and the Martha
Wright-Reed Act, Public Law 117–338,
136 Stat. 6156 (2022).
lotter on DSK11XQN23PROD with PROPOSALS1
C. Description and Estimate of the
Number of Small Entities to Which the
Proposed Rules Would Apply
8. The RFA directs agencies to
provide a description of, and where
feasible, an estimate of the number of
small entities that may be affected by
the proposed Annual Reports data
collection. The RFA generally defines
the term ‘‘small entity’’ as having the
same meaning as the terms ‘‘small
business,’’ ‘‘small organization,’’ and
‘‘small governmental jurisdiction.’’ In
addition, the term ‘‘small business’’ has
the same meaning as the term ‘‘smallbusiness concern’’ under the Small
Business Act. noted above,
9. As noted above, Regulatory
Flexibility Analyses were incorporated
in the 2022 ICS Order and the 2023
IPCS Notice. In those analyses, the
Commission described in detail the
small entities that might be affected. In
this Supplemental IRFA, the Bureaus
hereby incorporate by reference the
descriptions and estimates of the
number of small entities from the
previous Regulatory Flexibility
Analyses in the 2022 ICS Order and
2023 IPCS Notice.
D. Description of Projected Reporting,
Recordkeeping, and Other Compliance
Requirements for Small Entities
10. The document seeks comment on
the specifics of the proposed revisions
to the instructions, templates, and
certification form to ensure the
Commission receives the data it needs
for the Annual Reports. The proposed
data collection would require certain
providers that are classified as inmate
calling services providers under the
Commission’s rules to submit, among
VerDate Sep<11>2014
17:06 Aug 08, 2023
Jkt 259001
other things, data and other information
on providers’ operations, IPCS rates,
ancillary services, site commissions,
and disability access. The proposed data
collection may subject small and other
providers to modified or new reporting
or other compliance obligations. In
addition, the Bureaus recognize that
their actions in this proceeding may
affect the reporting, recordkeeping, and
other compliance requirements for
several groups of small entities. At this
time, the Bureaus do not have sufficient
information to determine whether the
proposed revisions to the Annual
Reports data collection will require
small entities to hire attorneys,
engineers, or other professionals to
comply with the new rules. The
Bureaus, however, anticipate the
information they receive in the
comments will help the Commission
identify and evaluate relevant
compliance matters for small entities,
including compliance costs and other
burdens that may result from the
proposals and inquiries the Bureaus
make in the document.
E. Steps Taken To Minimize the
Significant Economic Impact on Small
Entities and Significant Alternatives
Considered
11. The RFA requires an agency to
describe any significant alternatives that
it has considered in reaching its
proposed approach, which may include
the following four alternatives (among
others): ‘‘(1) the establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance and reporting requirements
under the rules for such small entities;
(3) the use of performance rather than
design standards; and (4) an exemption
from coverage of the rule, or any part
thereof, for such small entities.’’ The
Bureaus will consider these factors after
reviewing any substantive comment the
Bureaus have received from the public
and potentially affected small entities.
12. In the document, the Bureaus have
taken steps to minimize the economic
impact on small entities and consider
alternatives through its proposals that
include considering different ways to
revise the Annual Reports instructions,
templates, and certification form
without causing significant economic
impact to small entities. For example,
the Bureaus propose reporting and
certification requirements that are
similar to those used in prior Annual
Reports data collections. In addition, the
standardized templates and instructions
simplify compliance with, and reduce
PO 00000
Frm 00041
Fmt 4702
Sfmt 4702
53855
the burden of, the information
requirements related to submission of
the Annual Reports. Further, the
Bureaus have taken steps to ensure the
instructions, annual reporting
templates, and certification form are
competitively neutral and are not
unduly burdensome for all providers.
Finally, the document proposes to allow
providers that charge the same rates for
domestic and international video IPCS
to opt out of filing a separate
spreadsheet for international video
IPCS, thus reducing the regulatory
burden to providers. The Bureaus will
also consider any significant economic
impact to small entities that may be
raised in comments filed in response to
the document and Supplemental IRFA.
F. Federal Rules That May Duplicate,
Overlap, or Conflict With the Proposed
Rules
13. None.
Federal Communications Commission.
Lynne Engledow
Deputy Chief, Pricing and Policy Division,
Wireline Competition Bureau.
[FR Doc. 2023–17076 Filed 8–8–23; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 16
[FAR Case 2020–005; Docket No. FAR–
2020–0005; Sequence No. 1]
RIN 9000–AO08
Federal Acquisition Regulation:
Explanations to Unsuccessful Offerors
on Certain Orders Under Task and
Delivery Order Contracts
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCY:
DoD, GSA, and NASA are
proposing to amend the Federal
Acquisition Regulation (FAR) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2020 that requires explanations to
unsuccessful awardees on certain orders
under task order and delivery order
contracts.
SUMMARY:
Interested parties should submit
written comments to the Regulatory
DATES:
E:\FR\FM\09AUP1.SGM
09AUP1
53856
Federal Register / Vol. 88, No. 152 / Wednesday, August 9, 2023 / Proposed Rules
Secretariat Division at the address
shown below on or before October 10,
2023 to be considered in the formation
of the final rule.
ADDRESSES: Submit comments in
response to FAR Case 2020–005 to the
Federal eRulemaking portal at https://
www.regulations.gov by searching for
‘‘FAR Case 2020–005’’. Select the link
‘‘Comment Now’’ that corresponds with
‘‘FAR Case 2020–005’’. Follow the
instructions provided on the ‘‘Comment
Now’’ screen. Please include your name,
company name (if any), and ‘‘FAR Case
2020–005’’ on your attached document.
If your comment cannot be submitted
using https://www.regulations.gov, call
or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of
this document for alternate instructions.
Instructions: Please submit comments
only and cite ‘‘FAR Case 2020–005’’ in
all correspondence related to this case.
Comments received generally will be
posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided. Public comments
may be submitted as an individual, as
an organization, or anonymously (see
frequently asked questions at https://
www.regulations.gov/faq). To confirm
receipt of your comment(s), please
check https://www.regulations.gov,
approximately two to three days after
submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949 or by email at
michaelo.jackson@gsa.gov, for
clarification of content. For information
pertaining to status, publication
schedules, or alternate instructions for
submitting comments if https://
www.regulations.gov cannot be used,
contact the Regulatory Secretariat
Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAR
Case 2020–005.
SUPPLEMENTARY INFORMATION:
lotter on DSK11XQN23PROD with PROPOSALS1
I. Background
DoD, GSA, and NASA are proposing
to revise the FAR to implement section
874 of the National Defense
Authorization Act (NDAA) for Fiscal
Year (FY) 2020 (Pub. L. 116–92) which,
for task orders or delivery orders
exceeding the simplified acquisition
threshold (SAT) but not greater than $6
million, requires contracting officers to
provide, upon written request from an
unsuccessful offeror, a brief explanation
as to why the offeror was unsuccessful,
including the rationale for award and an
evaluation of the significant weak or
deficient factors in the offeror’s offer.
VerDate Sep<11>2014
17:06 Aug 08, 2023
Jkt 259001
Section 874 of the NDAA uses the
term ‘‘unsuccessful offeror.’’ FAR
16.505 uses the term ‘‘unsuccessful
awardee’’. Both terms are synonymous;
referring to an entity who has been
awarded a basic contract but has been
unsuccessful for the award of an order
competed under the basic contract.
Since the term ‘‘unsuccessful awardee’’
is already used and understood by the
acquisition community, the term will be
used to implement the requirement.
FAR 16.505(b)(6) requires contracting
officers to notify unsuccessful awardees
when the total price of a task order or
delivery order exceeds $6 million. If the
$6 million threshold is met, contracting
officers are directed to the procedures at
FAR 15.503(b)(1) and FAR 15.506 when
providing a postaward notification or
postaward debriefing, respectively.
The FAR threshold at 16.505 is
currently $6 million as a result of two
inflation adjustments in accordance
with FAR 1.109. FAR Case 2014–022
published on July 2, 2015, at 80 FR
38293 and 2019–013 published on
October 2, 2020, at 85 FR 62485 each
raised the threshold by $500,000 from
the $5 million reflected at 41 U.S.C.
4106(d).
II. Discussion and Analysis
The proposed rule implements the
requirement for contracting officers to,
upon written request from an
unsuccessful awardee, provide a brief
explanation as to why the awardee was
unsuccessful for a task order or delivery
order exceeding the SAT but not
exceeding $6 million. While the
statutory threshold is $5.5 million, this
rule is imposing these debriefing
requirements at the higher $6 million
threshold to align with the current
threshold at FAR 16.505(b)(6). This
avoids a gap between $5.5 million and
$6 million. This new debriefing
requirement for orders above the SAT
and below $6 million does not provide
a debriefing at the level of detail
currently afforded to unsuccessful
awardees over $6 million, however, this
information is expected to benefit
entities by improving future offers.
While not expressly required by the
statute, the proposed rule adds a
postaward notification requirement for
the applicable task orders and delivery
orders to ensure unsuccessful awardees
are provided an opportunity to obtain
the debriefing information in a timely
manner.
PO 00000
Frm 00042
Fmt 4702
Sfmt 4702
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT), for Commercial
Products (Including Commercially
Available Off-the-Shelf (COTS) Items),
and for Commercial Services
This rule does not create any new
provisions or clauses, nor does it change
the applicability of any existing
provisions or clauses included in
solicitations and contracts valued at or
below the SAT, for commercial
products, including COTS items, or for
commercial services.
IV. Expected Impact of the Rule
This proposed rule is expected to
increase the availability of debriefing
information to significantly more small
and large entities participating in fair
opportunity competitions than is
currently required by the FAR. When
requested by an unsuccessful awardee,
the information provided is expected to
enable these entities to improve future
offers.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not anticipated to be a major rule
under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect
this rule 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–
612, because the rule provides
postaward information to unsuccessful
awardees, if requested. However, an
Initial Regulatory Flexibility Analysis
(IRFA) has been performed and is
summarized as follows:
DoD, GSA, and NASA are proposing to
amend the Federal Acquisition Regulation
(FAR) to implement section 874 of the
National Defense Authorization Act (NDAA)
for Fiscal Year (FY) 2020 (Pub. L. 116–92).
For task orders or delivery orders exceeding
the simplified acquisition threshold (SAT)
but not greater than $5.5 million, section 874
E:\FR\FM\09AUP1.SGM
09AUP1
Federal Register / Vol. 88, No. 152 / Wednesday, August 9, 2023 / Proposed Rules
lotter on DSK11XQN23PROD with PROPOSALS1
requires contracting officers to provide, upon
written request from an unsuccessful offeror,
a brief explanation as to why the offeror’s
offer was unsuccessful, including the
rationale for award and an evaluation of the
significant weak or deficient factors in the
unsuccessful offeror’s offer. While the
statutory threshold is $5.5 million, this rule
is implementing this requirement at the
higher $6 million threshold for debriefings
currently in the FAR to avoid a gap between
$5.5 million and $6 million.
The objective of this proposed rule is to
increase the availability of debriefing
information to significantly more small and
large entities participating in fair opportunity
competitions than is currently required by
the FAR. When requested by an unsuccessful
awardee, the information provided is
expected to enable these entities to improve
future offers. The legal basis for the rule is
section 874 of the NDAA for FY 2020.
Promulgation of FAR regulations is
authorized by 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51
U.S.C. 20113.
This proposed rule will apply to all entities
participating in fair opportunity competitions
that exceed the SAT but do not exceed $6
million. Based upon FY 2018 through FY
2020 data obtained from the Federal
Procurement Data System, the Government
awarded an average of 53,068 task orders and
delivery orders against multiple-award
contracts exceeding the SAT but not
exceeding $6 million annually. Of those
orders, an estimated 22,863 were awarded to
approximately 5,984 unique small entities
each year. While DoD, GSA, and NASA are
unable to estimate how many unique small
entities are unsuccessful awardees and
would request information afforded by this
rule, it is assumed that at least one small
entity may make such a request per
opportunity, 22,863 annually.
This proposed rule does not include any
new reporting, recordkeeping, or other
compliance requirements for small entities.
The proposed rule does not duplicate,
overlap, or conflict with any other Federal
rules.
VerDate Sep<11>2014
17:06 Aug 08, 2023
Jkt 259001
There are no known significant alternative
approaches to the proposed rule that would
meet the proposed objectives.
■
The Regulatory Secretariat Division
has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat Division. DoD,
GSA, and NASA invite comments from
small business concerns and other
interested parties on the expected
impact of this rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAR Case 2020–005), in
correspondence.
16.505
VII. Paperwork Reduction Act
The rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
3501–3521).
List of Subjects in 48 CFR Part 16
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR part 16 as set
forth below:
PART 16—TYPES OF CONTRACTS
1. The authority citation for 48 CFR
part 16 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 4 and 10 U.S.C. chapter 137 legacy
provisions (see 10 U.S.C. 3016); and 51
U.S.C. 20113.
PO 00000
Frm 00043
Fmt 4702
Sfmt 9990
53857
2. Amend section 16.505 by revising
paragraph (b)(6) to read as follows:
Ordering.
*
*
*
*
*
(b) * * *
(6) Postaward notices and debriefings
(41 U.S.C. 4106 and 41 U.S.C. 4106
note).
(i) For task orders or delivery orders
exceeding the simplified acquisition
threshold but not exceeding $6 million,
the contracting officer shall—
(A) Provide timely notification to
unsuccessful awardees. At a minimum,
the notification shall provide the name
of the awardee of the order and the total
price of the order;
(B) Upon written request, received by
the agency within 3 days after the date
that the unsuccessful awardee has
received notification of award, provide
a brief explanation as to why the
awardee was unsuccessful that
includes—
(1) A summary of the rationale for the
award; and
(2) An evaluation of the significant
weak or deficient factors in the
unsuccessful awardee’s offer.
(C) Include the brief explanation in
the task order or delivery order file.
(ii) For task orders or delivery orders
exceeding $6 million, the contracting
officer shall—
(A) Provide postaward notification to
unsuccessful awardees in accordance
with the procedures at 15.503(b)(1);
(B) Follow the procedures at 15.506
when providing postaward debriefings
to unsuccessful awardees; and
(C) Include a summary of the
debriefing in the task order or delivery
order file.
*
*
*
*
*
[FR Doc. 2023–16395 Filed 8–8–23; 8:45 am]
BILLING CODE 6820–EP–P
E:\FR\FM\09AUP1.SGM
09AUP1
]]>Agencies
[Federal Register Volume 88, Number 152 (Wednesday, August 9, 2023)]
[Proposed Rules]
[Pages 53855-53857]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-16395]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAR Case 2020-005; Docket No. FAR-2020-0005; Sequence No. 1]
RIN 9000-AO08
Federal Acquisition Regulation: Explanations to Unsuccessful
Offerors on Certain Orders Under Task and Delivery Order Contracts
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement a section of the National
Defense Authorization Act for Fiscal Year 2020 that requires
explanations to unsuccessful awardees on certain orders under task
order and delivery order contracts.
DATES: Interested parties should submit written comments to the
Regulatory
[[Page 53856]]
Secretariat Division at the address shown below on or before October
10, 2023 to be considered in the formation of the final rule.
ADDRESSES: Submit comments in response to FAR Case 2020-005 to the
Federal eRulemaking portal at https://www.regulations.gov by searching
for ``FAR Case 2020-005''. Select the link ``Comment Now'' that
corresponds with ``FAR Case 2020-005''. Follow the instructions
provided on the ``Comment Now'' screen. Please include your name,
company name (if any), and ``FAR Case 2020-005'' on your attached
document. If your comment cannot be submitted using https://www.regulations.gov, call or email the points of contact in the FOR
FURTHER INFORMATION CONTACT section of this document for alternate
instructions.
Instructions: Please submit comments only and cite ``FAR Case 2020-
005'' in all correspondence related to this case. Comments received
generally will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided. Public comments may be submitted as an individual, as an
organization, or anonymously (see frequently asked questions at https://www.regulations.gov/faq). To confirm receipt of your comment(s),
please check https://www.regulations.gov, approximately two to three
days after submission to verify posting.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949 or by email at [email protected], for
clarification of content. For information pertaining to status,
publication schedules, or alternate instructions for submitting
comments if https://www.regulations.gov cannot be used, contact the
Regulatory Secretariat Division at 202-501-4755 or [email protected].
Please cite FAR Case 2020-005.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to revise the FAR to implement
section 874 of the National Defense Authorization Act (NDAA) for Fiscal
Year (FY) 2020 (Pub. L. 116-92) which, for task orders or delivery
orders exceeding the simplified acquisition threshold (SAT) but not
greater than $6 million, requires contracting officers to provide, upon
written request from an unsuccessful offeror, a brief explanation as to
why the offeror was unsuccessful, including the rationale for award and
an evaluation of the significant weak or deficient factors in the
offeror's offer.
Section 874 of the NDAA uses the term ``unsuccessful offeror.'' FAR
16.505 uses the term ``unsuccessful awardee''. Both terms are
synonymous; referring to an entity who has been awarded a basic
contract but has been unsuccessful for the award of an order competed
under the basic contract. Since the term ``unsuccessful awardee'' is
already used and understood by the acquisition community, the term will
be used to implement the requirement.
FAR 16.505(b)(6) requires contracting officers to notify
unsuccessful awardees when the total price of a task order or delivery
order exceeds $6 million. If the $6 million threshold is met,
contracting officers are directed to the procedures at FAR 15.503(b)(1)
and FAR 15.506 when providing a postaward notification or postaward
debriefing, respectively.
The FAR threshold at 16.505 is currently $6 million as a result of
two inflation adjustments in accordance with FAR 1.109. FAR Case 2014-
022 published on July 2, 2015, at 80 FR 38293 and 2019-013 published on
October 2, 2020, at 85 FR 62485 each raised the threshold by $500,000
from the $5 million reflected at 41 U.S.C. 4106(d).
II. Discussion and Analysis
The proposed rule implements the requirement for contracting
officers to, upon written request from an unsuccessful awardee, provide
a brief explanation as to why the awardee was unsuccessful for a task
order or delivery order exceeding the SAT but not exceeding $6 million.
While the statutory threshold is $5.5 million, this rule is imposing
these debriefing requirements at the higher $6 million threshold to
align with the current threshold at FAR 16.505(b)(6). This avoids a gap
between $5.5 million and $6 million. This new debriefing requirement
for orders above the SAT and below $6 million does not provide a
debriefing at the level of detail currently afforded to unsuccessful
awardees over $6 million, however, this information is expected to
benefit entities by improving future offers. While not expressly
required by the statute, the proposed rule adds a postaward
notification requirement for the applicable task orders and delivery
orders to ensure unsuccessful awardees are provided an opportunity to
obtain the debriefing information in a timely manner.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT), for Commercial Products (Including Commercially
Available Off-the-Shelf (COTS) Items), and for Commercial Services
This rule does not create any new provisions or clauses, nor does
it change the applicability of any existing provisions or clauses
included in solicitations and contracts valued at or below the SAT, for
commercial products, including COTS items, or for commercial services.
IV. Expected Impact of the Rule
This proposed rule is expected to increase the availability of
debriefing information to significantly more small and large entities
participating in fair opportunity competitions than is currently
required by the FAR. When requested by an unsuccessful awardee, the
information provided is expected to enable these entities to improve
future offers.
V. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not anticipated to
be a major rule under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this rule 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. 601-612, because
the rule provides postaward information to unsuccessful awardees, if
requested. However, an Initial Regulatory Flexibility Analysis (IRFA)
has been performed and is summarized as follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement section 874 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2020
(Pub. L. 116-92). For task orders or delivery orders exceeding the
simplified acquisition threshold (SAT) but not greater than $5.5
million, section 874
[[Page 53857]]
requires contracting officers to provide, upon written request from
an unsuccessful offeror, a brief explanation as to why the offeror's
offer was unsuccessful, including the rationale for award and an
evaluation of the significant weak or deficient factors in the
unsuccessful offeror's offer. While the statutory threshold is $5.5
million, this rule is implementing this requirement at the higher $6
million threshold for debriefings currently in the FAR to avoid a
gap between $5.5 million and $6 million.
The objective of this proposed rule is to increase the
availability of debriefing information to significantly more small
and large entities participating in fair opportunity competitions
than is currently required by the FAR. When requested by an
unsuccessful awardee, the information provided is expected to enable
these entities to improve future offers. The legal basis for the
rule is section 874 of the NDAA for FY 2020. Promulgation of FAR
regulations is authorized by 40 U.S.C. 121(c); 10 U.S.C. chapter 4
and 10 U.S.C. chapter 137 legacy provisions (see 10 U.S.C. 3016);
and 51 U.S.C. 20113.
This proposed rule will apply to all entities participating in
fair opportunity competitions that exceed the SAT but do not exceed
$6 million. Based upon FY 2018 through FY 2020 data obtained from
the Federal Procurement Data System, the Government awarded an
average of 53,068 task orders and delivery orders against multiple-
award contracts exceeding the SAT but not exceeding $6 million
annually. Of those orders, an estimated 22,863 were awarded to
approximately 5,984 unique small entities each year. While DoD, GSA,
and NASA are unable to estimate how many unique small entities are
unsuccessful awardees and would request information afforded by this
rule, it is assumed that at least one small entity may make such a
request per opportunity, 22,863 annually.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small entities.
The proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known significant alternative approaches to the
proposed rule that would meet the proposed objectives.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA, and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2020-005),
in correspondence.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. 3501-3521).
List of Subjects in 48 CFR Part 16
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 16 as
set forth below:
PART 16--TYPES OF CONTRACTS
0
1. The authority citation for 48 CFR part 16 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
0
2. Amend section 16.505 by revising paragraph (b)(6) to read as
follows:
16.505 Ordering.
* * * * *
(b) * * *
(6) Postaward notices and debriefings (41 U.S.C. 4106 and 41 U.S.C.
4106 note).
(i) For task orders or delivery orders exceeding the simplified
acquisition threshold but not exceeding $6 million, the contracting
officer shall--
(A) Provide timely notification to unsuccessful awardees. At a
minimum, the notification shall provide the name of the awardee of the
order and the total price of the order;
(B) Upon written request, received by the agency within 3 days
after the date that the unsuccessful awardee has received notification
of award, provide a brief explanation as to why the awardee was
unsuccessful that includes--
(1) A summary of the rationale for the award; and
(2) An evaluation of the significant weak or deficient factors in
the unsuccessful awardee's offer.
(C) Include the brief explanation in the task order or delivery
order file.
(ii) For task orders or delivery orders exceeding $6 million, the
contracting officer shall--
(A) Provide postaward notification to unsuccessful awardees in
accordance with the procedures at 15.503(b)(1);
(B) Follow the procedures at 15.506 when providing postaward
debriefings to unsuccessful awardees; and
(C) Include a summary of the debriefing in the task order or
delivery order file.
* * * * *
[FR Doc. 2023-16395 Filed 8-8-23; 8:45 am]
BILLING CODE 6820-EP-P
