[Federal Register: April 3, 2000 (Volume 65, Number 64)]
[Proposed Rules]               
[Page 17581-17582]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 17581]]


Part III

Department of Defense

General Services Administration

National Aeronautics and Space Administration


48 CFR Part 15

Federal Acquisition Regulation; Discussion Requirements; Proposed Rule

[[Page 17582]]





48 CFR Part 15

[FAR Case 1999-022]
RIN 9000-AI68

Federal Acquisition Regulation; Discussion Requirements

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 (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to clarify the scope of 
discussions in competitive negotiated acquisitions.

DATES: Interested parties should submit comments in writing on or 
before June 2, 2000, to be considered in the formulation of a final 

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVRS), 1800 F Street, NW, Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.1999-
    Please submit comments only and cite FAR case 1999-022 in all 
correspondence related to this case.

Building, Washington, DC, 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202) 
501-1758. Please cite FAR case 1999-022.


A. Background

    The proposed rule amends FAR 15.306(d) to clarify the Councils' 
view that the contracting officer is not required to discuss every area 
where the proposal could be improved.
    The rule explains that discussions of offerors' proposals beyond 
deficiencies and significant weaknesses are a matter of contracting 
officer judgment. GAO has already interpreted the previous FAR language 
consistently with this clarification in MRC Federal, Inc. (B-280969, 
December 14, 1998) and Du & Associates (B-280283.3, December 22, 1998). 
The rule encourages the contracting officer to discuss other aspects of 
an offerors' proposal that have the potential, if changed, to 
materially increase the value of the proposal to the Government (B-
280283.3). However, the rule makes clear that whether these discussions 
would be worthwhile is within the contracting officer's discretion.
    This rule was not subject to Office of Management and Budget 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 Councils do not expect this proposed 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 only clarifies existing policy that the scope and 
extent of discussions are a matter of contracting officer judgment. 
Therefore, we have not prepared an Initial Regulatory Flexibility 
Analysis. We invite comments from small businesses and other interested 
parties. The Councils will consider comments from small entities 
concerning the affected FAR subpart in accordance with 5 U.S.C. 610. 
Interested parties must submit such comments separately and should cite 
5 U.S.C. 601, et seq. (FAR case 1999-022), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
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 29, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose that 48 CFR part 15 be 
amended as set forth below:


    1. The authority citation for 48 CFR part 15 continues to read as 

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Amend section 15.306 by revising paragraph (d)(3); by 
redesignating paragraph (d)(4) as (d)(5); and by adding a new paragraph 
(d)(4) to read as follows:

15.306  Exchanges with offerors after receipt of proposals.

* * * * *
    (d) * * *
    (3) At a minimum, the contracting officer must, subject to 
paragraphs (d)(5) and (e) of this section and 15.307(a), indicate to or 
discuss with each offeror still being considered for award significant 
weaknesses, deficiencies, and adverse past performance information to 
which the offeror has not yet had an opportunity to respond. The 
contracting officer also is encouraged to discuss other aspects of the 
offeror's proposal (such as cost, price, technical approach, past 
performance, and terms and conditions) that could, in the opinion of 
the contracting officer, be altered or explained to enhance materially 
the proposal's potential for award. However, the contracting officer is 
not required to discuss every area where the proposal could be 
improved. The scope and extent of discussions are a matter of 
contracting officer judgment.
    (4) In discussing other aspects of the proposal, the Government 
may, in situations where the solicitation stated that evaluation credit 
would be given for technical solutions exceeding any mandatory 
minimums, negotiate with offerors for increased performance beyond any 
mandatory minimums, and the Government may suggest to offerors that 
have exceeded any mandatory minimums (in ways that are not integral to 
the design) that their proposals would be more competitive if the 
excesses were removed and the offered price decreased.
* * * * *
[FR Doc. 00-8135 Filed
3-31-00; 8:45 am]