[Federal Register: November 24, 2010 (Volume 75, Number 226)]
[Proposed Rules]               
[Page 71647-71648]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24no10-50]                         

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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: dfars@osd.mil. 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]
BILLING CODE 5001-08-P