[Federal Register: July 11, 2000 (Volume 65, Number 133)]
[Proposed Rules]               
[Page 42851-42854]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr11jy00-18]                         


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Part V





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Part 2 et al



Federal Acquisition Regulation; Definitions for Sealed Bid and 
Negotiated Procurements; Proposed Rule


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 3, 14, 15, 28, 35, and 52

[FAR Case 2000-403]
RIN 9000-AI84

 
Federal Acquisition Regulation; Definitions for Sealed Bid and 
Negotiated Procurements

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to provide consistent definitions 
for sealed bids and negotiated procurements. This case is one of a 
series of cases in response to the White House memorandum, Plain 
Language in Government Writing, dated June 1, 1999. The Councils' 
proposed amendments are intended only to reorganize, simplify, and 
clarify the FAR. The Councils do not intend to make any substantive 
change to the FAR by these amendments. Comments should address any 
potential unintended substantive changes to the FAR resulting from the 
proposed amendments.

DATES: Interested parties should submit comments in writing on or 
before September 11, 2000, to be considered in the formulation of a 
final rule.

ADDRESSES: Submit written comments to:
    General Services Administration
    FAR Secretariat (MVR)
    1800 F Street, NW, Room 4035
    ATTN: Laurie Duarte
    Washington, DC 20405
    Submit electronic comments via the Internet to: farcase.2000-
403@gsa.gov
    Please submit comments only and cite FAR case 2000-403 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
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 2000-403.

SUPPLEMENTARY INFORMATION:

A. Background

    The rule amends the FAR to clarify definitions that are used for 
sealed bid and negotiated procurements. The rule--
    <bullet> Moves the definitions of ``bid sample'' and ``descriptive 
literature'' from FAR Part 14 to FAR 2.101 because the definitions 
apply to more than one FAR, (e.g. Parts 14 and 15).
    <bullet> Amends those definitions and the definition of ``offer'' 
in accordance with plain language guidelines;
    <bullet> Revises applicable provisions in FAR Part 52 to conform 
with the new definitions;
    <bullet> Adds a new definition for ``solicitation'' at FAR 2.101;
    <bullet> Provides definitions for ``bid'' and ``bidder'' in FAR 
Part 28 because, as used in that part, the terms address sealed bid and 
negotiated acquisitions; and
    <bullet> Revises 3.302 by deleting ``invitation for bids'' and 
substituting ``solicitation.''
    We also reviewed every instance where the terms ``offeror,'' 
``prospective offeror,'' and ``potential offeror'' are used in the FAR. 
The rule corrects policy in FAR 15.201(f), 15.609(e), and 35.007(g) 
because the term ``prospective offeror'' is not used properly. Where we 
mean an entity that is actively seeking a contract, we use the term 
``prospective offeror.'' However, those cites describe processes that 
are set up to ensure fair and open competition. Therefore, any 
interested party is able to participate, including parties that the 
Government has not yet identified. Therefore, the proposed rule uses 
the more general term ``potential offeror.''
    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, while we have made changes in accordance with plain language 
guidelines, we have not substantively changed procedures for award and 
administration of contracts. An Initial Regulatory Flexibility Analysis 
has, therefore, not been performed. We invite comments from small 
businesses and other interested parties. The Councils will consider 
comments from small entities concerning the affected FAR Parts 2, 3, 
14, 15, 28, 35, and 52 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 2000-403), 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 parts 2, 3, 14, 15, 28, 35, and 52

    Government procurement.

    Dated: July 5, 2000.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose that 48 CFR parts 2, 3, 14, 
15, 28, 35, and 52 be amended as set forth below:
    1. The authority citation for 48 CFR parts 2, 3, 14, 15, 28, 35, 
and 52 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).

PART 2--DEFINITIONS OF WORDS AND TERMS

    2. Amend section 2.101 by adding, in alphabetical order, the 
definitions ``Bid sample,;'' ``Descriptive literature,'' and 
``Solicitation;'' and revise the definition ``Offer'' to read as 
follows:


2.101  Definitions.

* * * * *
    Bid sample means a product sample required to be submitted by an 
offeror to show characteristics of the offered products that cannot 
adequately be described by specifications, purchase descriptions, or 
the solicitation (e.g., balance, ease of use, or pattern).
* * * * *
    Descriptive literature means information provided by an offeror, 
such as cuts, illustrations, drawings, and brochures, that shows a 
product's characteristics or construction or explains its operation. 
The term includes only that information needed to evaluate the 
acceptability of the product and excludes other information for 
operating or maintaining the product.
* * * * *
    Offer means a response to a solicitation that, if accepted, would 
bind the offeror to perform the resultant contract. Responses to 
invitations for

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bids (sealed bidding) are offers called ``bids'' or ``sealed bids;'' 
responses to requests for proposals in negotiated acquisitions are 
offers called ``proposals;'' responses to requests for quotations in 
simplified acquisitions are called ``quotations'' not offers. For 
unsolicited proposals, see subpart 15.6.
* * * * *
    Solicitation means any request to submit offers or quotations to 
the Government. Solicitations under sealed bid procedures are called 
``invitations for bids.'' Solicitations under negotiated procedures are 
called ``requests for proposals.'' Solicitations under simplified 
acquisition procedures may require submission of either a quotation or 
an offer.
* * * * *

PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF 
INTEREST

    3. In section 3.302, revise the definition ``Line item'' to read as 
follows:


3.302  Definitions.

* * * * *
    Line item means an item of supply or service, specified in a 
solicitation, that the offeror must separately price.

PART 14--SEALED BIDDING

    4. Amend section 14.201-6 as follows:
    (a) Revise paragraph (a);
    (b) Remove paragraphs (b)(1) and (b)(2) and redesignate paragraphs 
(b)(3) and (b)(4) as (b)(1) and (b)(2), respectively;
    (c) In paragraph (o)(2), remove ``14.202-4(f)(1)'' and add 
``14.202-4(e)(1)'' in its place; and
    (d) In paragraph (o)(3), remove ``14.202-4(f)(2)'' and add 
``14.202-4(e)(2)'' in its place.
    The revised text reads as follows:


14.201-6  Solicitation provisions.

    (a) The provisions prescribed in this subsection apply to 
preparation and submission of bids in general. See other FAR parts for 
provisions and clauses related to specific acquisition requirements.
* * * * *


14.202-4  [Amended]

    5. Amend section 14.202-4 by removing paragraph (a); redesignating 
paragraphs (b) through (h) as (a) through (g), respectively; and in the 
newly redesignated paragraph (g) remove ``of'' from the paragraph 
heading.
    6. In section 14.202-5, remove paragraph (a); redesignate 
paragraphs (b) through (f) as (a) through (e), respectively; and revise 
the newly designated paragraphs (a) through (e) to read as follows:


14.202-5  Descriptive literature.

    (a) Policy. Contracting officers must not require bidders to 
furnish descriptive literature unless it is needed before award to 
determine whether the products offered meet the specification and to 
establish exactly what the bidder proposes to furnish.
    (b) Justification. The contracting officer must document in the 
contract file the reasons why product acceptability cannot be 
determined without the submission of descriptive literature, except 
when the contract specifications require submission.
    (c) Requirements of invitation for bids. (1) The invitation must 
clearly state--
    (i) What descriptive literature the bidder must furnish;
    (ii) The purpose for requiring the literature;
    (iii) The extent of its consideration in the evaluation of bids; 
and
    (iv) The rules that will apply if a bidder fails to furnish the 
literature before bid opening or if the literature provided does not 
comply with the requirements of the invitation.
    (2) If bidders must furnish descriptive literature, see 14.201-
6(p).
    (d) Waiver of requirements for descriptive literature. (1) The 
contracting officer may waive the requirement for descriptive 
literature if--
    (i) The bidder states in the bid that the product being offered is 
the same as a product previously or currently being furnished to the 
contracting activity; and
    (ii) The contracting officer determines that the product offered by 
the bidder complies with the specification requirements of the current 
invitation for bids. When the contracting officer waives the 
requirement, see 14.201-6(p)(2).
    (2) When descriptive literature is not necessary and a waiver of 
literature requirements of a specification has been authorized, the 
contracting officer must include a statement in the invitation that, 
despite the requirements of the specifications, descriptive literature 
will not be required.
    (3) If the solicitation provides for a waiver, a bidder may submit 
a bid on the basis of either the descriptive literature furnished with 
the bid or a previously furnished product. If the bid is submitted on 
one basis, the bidder may not have it considered on the other basis 
after bids are opened.
    (e) Unsolicited descriptive literature. If descriptive literature 
is furnished when it is not required by the invitation for bids, the 
procedures set forth in 14.202-4(g) must be followed.

PART 15--CONTRACTING BY NEGOTIATION

    7. In section 15.201, revise paragraph (f) to read as follows:


15.201  Exchanges with industry before receipt of proposals.

* * * * *
    (f) General information about agency mission needs and future 
requirements may be disclosed at any time. After release of the 
solicitation, the contracting officer must be the focal point of any 
exchange with potential offerors. When specific information about a 
proposed acquisition that would be necessary for the preparation of 
proposals is disclosed to one or more potential offerors, that 
information must be made available to the public as soon as 
practicable, but no later than the next general release of information, 
to avoid creating an unfair competitive advantage. Information provided 
to a potential offeror in response to its request must not be disclosed 
if it would reveal the potential offeror's confidential business 
strategy, and is protected under 3.104 or subpart 24.2. When conducting 
a presolicitation or preproposal conference, materials distributed at 
the conference should be made available to all potential offerors, upon 
request.
    8. In section 15.609, revise paragraph (e) to read as follows:


15.609   Limited use of data.

* * * * *
    (e) Use the notice in paragraph (d) of this section solely as a 
manner of handling unsolicited proposals that will be compatible with 
this subpart. However, do not use this notice to justify withholding of 
a record, or to improperly deny public access to a record, where an 
obligation is imposed by the Freedom of Information Act, 5 U.S.C. 552. 
An offeror should identify trade secrets, commercial or financial 
information, and privileged or confidential information to the 
Government (see paragraph (a) of this section).
* * * * *

PART 28--BONDS AND INSURANCE

    9. Revise section 28.000 to read as follows:


28.000  Scope of part.

    This part prescribes requirements for obtaining financial 
protection against losses under contracts that result from

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use of the sealed bid or negotiated methods. It covers bid guarantees, 
bonds, alternative payment protections, security for bonds, and 
insurance.
    10. Amend section 28.001 as follows:
    (a) Add an introductory paragraph;
    (b) In the definitions ``Attorney-in-fact,'' ``Insurance,'' and 
``Power of attorney,'' remove ``, as used in this part,''; and
    (c) Add the definitions, in alphabetical order, ``Bid'' and 
``Bidder'' to read as follows:


28.001  Definitions.

    As used in this part:
* * * * *
    Bid means any response to a solicitation, including a proposal 
under a negotiated acquisition. See the definition of ``offer'' at 
2.101.
* * * * *
    Bidder means any entity that is responding or has responded to a 
solicitation, including an offeror under a negotiated acquisition.
* * * * *

PART 35--RESEARCH AND DEVELOPMENT CONTRACTING

    11. In section 35.007, revise paragraph (g) to read as follows:


35.007  Solicitations.

* * * * *
    (g) The contracting officer should ensure that potential offerors 
fully understand the details of the work, especially the Government 
interpretation of the work statement. If the effort is complex, the 
contracting officer should provide potential offerors an opportunity to 
comment on the details of the requirements in the work statement, the 
contract Schedule, and any related specifications. This may be done at 
a preproposal conference (see 15.201).
* * * * *

PART 52--SOLICITATION PROVISIONS AND REMOVED AND CONTRACT CLAUSES


52.214-1  [Reserved]

    12. Section 52.214-1 is removed and reserved.
    13. In section 52.214-20, revise the introductory text, the date of 
the provision, paragraphs (a), (b), and the introductory text of 
paragraph (c); and in Alternate I and Alternate II remove ``14.202-
4(f)(1)'' and add ``14.202-4(e)(1)'', in their places, respectively. 
The revised text reads as follows:


52.214-20  Bid samples.

    As prescribed in 14.201-6(o)(1), insert the following provision:

Bid Samples (Date)

    (a) Bid sample means a product sample required to be submitted 
by a bidder to show characteristics of the offered products that 
cannot adequately be described by specifications, purchase 
descriptions, or the invitation for bid (e.g., balance, ease of use, 
or pattern).
    (b) Bidders must furnish bid samples as part of the bid. The 
Government must receive the bid samples by the time specified in the 
invitation for bid. If the bidder fails to submit samples on time, 
the Government will reject the bid, except that the Contracting 
Officer will consider a late sample sent by mail under the Late 
Submissions, Modifications, and Withdrawals of Bids provision of 
this solicitation.
    (c) The Government will test or evaluate bid samples to 
determine compliance with all the characteristics listed for 
examination in this solicitation. The Government will reject the bid 
when the bid fails to conform to the required characteristics. 
Products delivered under any resulting contract must conform to--
* * * * *

(End of Provision)

    14. Revise section 52.214-21 to read as follows:


52.214-21  Descriptive Literature.

    As prescribed in 14.201-6(p)(1), insert the following provision:

Descriptive Literature (Date)

    (a) Descriptive literature means information furnished by a 
bidder, such as cuts, illustrations, drawings, and brochures that 
shows a product's characteristics or construction or explains its 
operation. The term includes only that information required to 
evaluate the acceptability of the product and excludes other 
information for operating or maintaining the product.
    (b) Descriptive literature is required to establish, for the 
purpose of evaluation and award, details of the product offered that 
are specified elsewhere in the solicitation and pertain to 
significant elements such as--
    (1) Design;
    (2) Materials;
    (3) Components;
    (4) Performance characteristics; and
    (5) Methods of manufacture, assembly, construction, or 
operation.
    (c) Descriptive literature, required elsewhere in this 
solicitation, shall be--
    (1) Identified to show the item(s) of the offer to which it 
applies; and
    (2) Received by the time specified in this solicitation.
    (d) If the bidder fails to submit descriptive literature on 
time, the Government will reject the bid, except that late 
descriptive literature sent by mail may be considered under the Late 
Submissions, Modifications, and Withdrawals of Bids provision of 
this solicitation.
    (e) If the descriptive literature fails to show that the product 
offered conforms to the requirements of this solicitation, the 
Government will reject the bid.

(End of Provision)

    Alternate I (Date). As prescribed in 14.201-6(p)(2), add the 
following paragraphs (f) and (g) to the basic provision.
    (f) The Contracting Officer may waive the requirement for 
furnishing descriptive literature if the offeror has supplied a 
product that is the same as that required by this solicitation under 
a prior contract. A bidder requesting a waiver of this requirement 
shall provide the following information:
Prior contract number____________--------------------------------------
Date of prior contract__________---------------------------------------
Contract line item number of product supplied______--------------------
Name and address of Government activity to which delivery was 
made________________________-------------------------------------------
Date of final delivery of product supplied______-----------------------
    (g) Bidders shall submit offers on the basis of required 
descriptive literature or on the basis of a previously supplied 
product under paragraph (f) of this provision. A bidder submitting a 
bid on one of these two bases may not elect to have its bid 
considered on the alternative basis after the time specified for 
receipt of bids. The Government will disregard a bidder's request 
for a waiver under paragraph (f), if that bidder has submitted the 
descriptive literature required under this solicitation.

[FR Doc. 00-17375 Filed 7-10-00; 8:45 am]
BILLING CODE 6820-EP-U