[Federal Register Volume 75, Number 226 (Wednesday, November 24, 2010)]
[Proposed Rules]
[Pages 71647-71648]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-29510]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 215
Defense Federal Acquisition Regulation Supplement; Discussions
Prior to Contract Award (DFARS Case 2010-D013)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Proposed rule with request for comments.
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SUMMARY: DoD is proposing to amend the Defense Federal Acquisition
Regulation Supplement (DFARS) to strongly encourage discussions prior
to award for source selections of procurements estimated at $100
million or more. The proposed change was recommended by the DoD Source
Selection Joint Analysis Team.
DATES: Comments on the proposed rule should be submitted in writing to
the address shown below on or before January 24, 2011, to be considered
in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2010-D013, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2010-D013 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Meredith
Murphy, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense Pentagon,
Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
To confirm receipt of your comment(s), please check http://www.regulations.gov approximately two to three days after submission to
verify posting (except allow 30 days for posting of comments submitted
by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Meredith Murphy, Defense
Acquisition Regulations System, OUSD (AT&L) DPAP (DARS), 3060 Defense
Pentagon, Room 3B855, Washington, DC 20301-3060. Telephone 703-602-
1302; facsimile 703-602-0350. Please cite DFARS Case 2010-D013.
SUPPLEMENTARY INFORMATION:
I. Background
This DFARS case was initiated at the request of the DoD Source
Selection Joint Analysis Team (JAT), chartered by the Deputy Under
Secretary of Defense (Acquisition, Technology, and Logistics) to revise
the DoD source selection procedures (which are being published
separately).
In their examination of current source selection processes utilized
within the DoD, members of the JAT determined that there is a
significant positive correlation between high-dollar value source
selections conducted without discussions and protests sustained.
Therefore, to improve the quality of high-dollar value, more complex
source selections and reduce turbulence and inefficiency resulting from
sustained protests, the JAT recommended that discussions prior to award
be strongly encouraged for source selections with a dollar value of
$100 million or more.
DoD research has indicated that holding meaningful discussions with
industry prior to contract award on high-dollar value, complex
requirements improves both industry's understanding of solicitation
requirements and the Government's understanding of industry issues. By
identifying and discussing these issues prior to submission of final
proposals, the Government is often able to issue clarifying language.
The modified requirements documentation allows
[[Page 71648]]
industry to tailor proposals and better describe the offeror's intended
approach, increases the probability that the offeror's proposal
satisfies Government requirements, and often results in better contract
performance. Asking contracting officers to conduct discussions with
industry provides a reasonable approach to recognizing and addressing
valid industry concerns and a constructive alternative to protests
resulting from industry frustration over misunderstood requirements.
DoD notes the potential disadvantages of this proposed change in
increased time to complete the source-selection process and additional
workload for acquisition staff. However, failure to hold discussions in
high-dollar value, more complex source selections has led to
misunderstandings of Government requirements by industry and flaws in
the Government's evaluation of offerors' proposals, leading to protests
that have been sustained, and ultimately extending source-selection
timelines. DoD proposes to decrease the possibility of this outcome by
making such discussions the default procedure for source selections for
procurements at or above $100 million. However, use of the term
``should,'' as defined in FAR part 2, provides that the expected course
of action need not be followed if inappropriate for a particular
circumstance.
II. Executive Order 12866
This is not a significant regulatory action and, therefore, is not
subject to review under Section 6 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.
III. Regulatory Flexibility Act
DoD does 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, et seq., because the rule
does not add to or delete existing regulations on discussions for the
vast majority of DoD procurements, i.e., those under $100 million. For
the largest procurements of at least $100 million, any increase in
discussions is anticipated to benefit all offerors, including small
businesses, by providing them an opportunity to explain details of the
offer and market their particular capabilities.
An initial regulatory flexibility analysis has been prepared and is
summarized as follows: The opportunity to participate in discussions
increases the probability of selection for award, as described above.
In fiscal year 2009, the most recent fiscal year for which data is
available, DoD awarded 620 new contracts and 252 new task orders/
delivery orders of $100 million or more to small businesses. While
there is no way to determine how many more small businesses may have
been selected for high-dollar value DoD awards had discussions been
held, it is reasonable to assume that the number would have been
higher, thus providing small businesses with a net positive benefit.
DoD invites comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities. DoD will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (DFARS Case 2010-D013)
in correspondence.
IV. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because there are no
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 215
Government procurement.
Clare M. Zebrowski,
Editor, Defense Acquisition Regulations System.
Therefore, DoD proposes to amend 48 CFR part 215 as follows:
1. The authority citation for 48 CFR part 215 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
PART 215--CONTRACTING BY NEGOTIATION
2. Add sections 215.203-71 and 215.209 to read as follows:
215.203-71 Requests for proposals--procurements of $100 million or
more.
For source selections when the procurement is $100 million or more,
contracting officers should conduct discussions with offerors in the
competitive range.
215.209 Solicitation provisions and contract clauses.
(a) For source selections when the procurement is $100 million or
more, contracting officers should use the provision at 52.215-1,
Instructions to Offerors--Competitive Acquisition, with its Alternate
I.
[FR Doc. 2010-29510 Filed 11-23-10; 8:45 am]
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