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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: February 4, 2003

SUBJECT: Federal Acquisition Regulation (FAR); Debriefing -- Competitive Acquisition

SOURCE: Federal Register, February 4, 2003, Vol. 68, No. 23, page 5777

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

ACTION: Proposed Rule

SYNOPSIS: It is proposed that FAR 52.212-1, Instruction to Offerors -- Commercial Items, and FAR 52.215-1, Instructions to Offerors -- Competitive Acquisition, be amended to add requirements for debriefing unsuccessful offerors under competitive proposals.

DATES: Comments are due on or before April 7, 2003.

ADDRESSES: Submit written comments on proposed rule to General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW, Room 4035, Attn: Laurie Duarte, Washington, DC 20405. Submit e-mail comments to: farcase.2002-014@gsa.gov. Cite "FAR case 2002-014" when referring to this proposed rule.

FOR FURTHER INFORMATION CONTACT: Ralph De Stefano, 202-501-1758.

SUPPLEMENTAL INFORMATION: Sections 1014 and 1064 of the Federal Acquisition Streamlining Act of 1994 include requirements for debriefing unsuccessful offerors under competitive proposals. Specifically, these sections require each solicitation for competitive proposals to include a statement that unsuccessful offerors may request to be debriefed, and that the unsuccessful offerors are to be provided the following information:

1. the agency's evaluation of the significant weak or deficient factors in the debriefed offeror's offer;
2. the overall evaluated cost or price and technical rating of the successful and the debriefed offeror;
3. the overall ranking of all offers;
4. a summary of the rationale for award;
5. for acquisitions of commercial items, the make and model of the item to be delivered by the successful offeror; and
6. reasonable responses to relevant questions posed by the debriefed offeror as to whether source-selection procedures in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

This information is reflected in paragraph (d) of FAR 15.506, Postaward Debriefing of Offerors. Also, FAR 15.506(d) requires the following additional information be disclosed to unsuccessful offerors:

1. Unit price information of the successful and debriefed offerors (this is included in paragraph (d)(2) as an element of the statutory requirement to disclose the overall evaluated cost or price -- "the overall evaluated cost or price (including unit prices) and technical rating..."); and
2. Past performance information on the debriefed offeror (also included in paragraph (d)(2)).

Some, but not all, of these requirements were incorporated into FAR 52.215-1, Instructions to Offerors -- Competitive Acquisitions (left out of FAR 52.215-1 are the requirements to disclose the agency's evaluation of the significant weak or deficient factors in the debriefed offeror's offer; reasonable responses to relevant questions; unit price information, and past performance information). In addition, the entire subject of debriefings was inadvertently omitted during the drafting of FAR 52.212-1, Instruction to Offerors -- Commercial Items. This proposed rule would add the missing debriefing requirements to FAR 52.215-1(f)(11) except for "unit pricing information", and would add all the debriefing requirements to FAR 52.212-1 as new paragraph (k) except for "unit pricing information."

"Unit price information" was intentionally not included in this proposed rule as information required to be disclosed because recent court cases, especially MCI WorldCom v. GSA (163 F. Supp. 2d 28), have put the treatment of unit prices under exemption number 4 of the Freedom of Information Act (FOIA) (5 U.S.C. 552(b)(4) -- FOIA does not apply to "trade secrets and commercial or financial information obtained from a person and privileged or confidential") in a state of flux which may cause FAR 15.506 and paragraph (b)(1)(iv) of FAR 15.503, Notifications to Unsuccessful Offerors, to be revised to clarify the release of unit prices.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

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