81 FR 85914 - Federal Acquisition Regulation: Effective Communication between Government and Industry
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 81, Issue 229 (November 29, 2016)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 81, Issue 229 (November 29, 2016)
| Page Range | 85914-85915 | |
| FR Document | 2016-28450 |
[Federal Register Volume 81, Number 229 (Tuesday, November 29, 2016)] [Proposed Rules] [Pages 85914-85915] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-28450] ======================================================================= ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 1 [FAR Case 2016-005; Docket No. 2016-0005, Sequence No.1] RIN 9000-AN29 Federal Acquisition Regulation: Effective Communication between Government and Industry AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. ----------------------------------------------------------------------- SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016. This rule clarifies that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing law and regulation and do not promote an unfair competitive advantage to particular firms. DATES: Interested parties should submit comments to the Regulatory Secretariat Division at one of the addresses shown below on or before January 30, 2017 to be considered in the formulation of a final rule. ADDRESSES: Submit comments in response to FAR case 2016-005 by any of the following methods:Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by entering ``FAR Case 2016-005'' under the heading ``Enter Keyword or ID'' and selecting ``Search.'' Select the link ``Comment Now'' that corresponds with ``FAR Case 2016-005.'' Follow the instructions provided on the screen. Please include your name, company name (if any), and ``FAR Case 2016-005'' on your attached document. Mail: General Services Administration, Regulatory Secretariat Division, ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405. Instructions: Please submit comments only and cite ``FAR Case 2016- 005: Effective Communication between Government and Industry'' in all correspondence related to this case. Comments received generally will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check 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: For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case 2016-005.'' SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA (the ``Councils'') are proposing to amend the FAR to implement section 887 of NDAA for FY 2016. The rule clarifies that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, in a manner that is consistent with existing law and regulation, and does not promote an unfair competitive advantage. FAR 1.102 establishes the guiding principles within the FAR to-- (1) Satisfy the customer in terms of cost, quality, and timeliness of the delivered product or service; (2) Minimize administrative operating costs; (3) Conduct business with integrity, fairness, and openness; and (4) Fulfill public policy objectives. FAR 1.102-2 provides the requirements or ``performance standards'' for transforming these principles into positive, results-oriented acquisition strategies. A communication policy that takes into account a range of approaches for effectively describing the Government's requirements to private industry is an essential component of the Federal acquisition process. This concept is in keeping with the direction expressed by Congress in section 887 of the NDAA for FY 2016. II. Discussion and Analysis The proposed rule will amend FAR 1.102-2(a)(4) to specifically state that Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry, so long as those exchanges are consistent with existing laws and regulations, and promote a fair competitive environment. This revision, [[Page 85915]] coupled with the existing guidance in the FAR subpart 1.1 and the market research strategies set forth in FAR part 10, will better equip Federal acquisition officials with the information needed to issue high-quality solicitations. III. Public Feedback In the winter of 2011, the Office of Federal Procurement Policy (OFPP) launched a campaign to address misconceptions commonly held by industry and Government regarding the role of communication during the acquisition process in order to encourage early, frequent, and constructive engagement with industry to achieve better acquisition outcomes. The first of two ``myth-busting'' memoranda, issued in February 2011, focused on misconceptions on the part of Federal agencies and a second memorandum, issued in May 2012, addressed misconceptions that may be held by some in the vendor community. Both memoranda described best practices for effective communication that have been put into use by the acquisition community, with good results. Copies of these memoranda, ``Myth-Busting: Addressing Misconceptions to Improve Communication with Industry during the Acquisition Process'' and ``Myth-Busting 2: Addressing Misconceptions and Further Improving Communication During the Acquisition Process,'' are available at https://www.whitehouse.gov/omb/procurement_index_memo. The Councils seek to continue the conversation initiated by these memoranda and welcome any suggestions from the public to further enhance open communication between industry and the Federal acquisition community. The Councils specifically request information regarding the following: Which phase(s) of the Federal acquisition process--i.e., acquisition planning/market research; solicitation/award; post award-- would benefit from more exchanges with industry and what specific policies or procedures would enhance communication during these phases? Is there a current FAR policy that may inhibit communication? If so, what is the policy, and how could this policy be revised to remove barriers to effective communication? Might it be beneficial to encourage, or require, contracting officers to conduct discussions with offerors after establishing the competitive range for contracts of a high dollar threshold? If so, what would be the appropriate dollar threshold? IV. Executive Order 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. V. Regulatory Flexibility Act DoD, GSA, and NASA do not expect the 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 proposed changes relate to internal Government business practices. However, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared and is summarized as follows: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 887 of the National Defense Authorization Act (NDAA) for FY 2016, which provides that agency acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry. Any effect to small businesses should be positive in that industry, including small business, will benefit from better communication with the Government. Based on data obtained from the Federal Procurement Data System--Next Generation (FPDS-NG) on June 21, 2016, approximately 112,150 businesses received Federal contracts during fiscal year 2015, and of these, approximately 75,000 or 67 percent were small businesses. This rule does not impose any new reporting, recordkeeping or other compliance requirements. The rule does not duplicate, overlap, or conflict with any other Federal rules. The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by this proposed rule consistent with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2016-005) in correspondence. VI. Paperwork Reduction Act The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35). List of Subjects in 48 CFR Part 1 Government procurement. Dated: November 21, 2016. William F. Clark, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part 1 as set forth below: PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM 0 1. The authority citation for 48 CFR part 1 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. 0 2. Amend section 1.102-2 by-- 0 a. Revising paragraph (a)(4); 0 b. Redesignating paragraphs (a)(5) through (7) as paragraphs (a)(6) through (8), respectively; and 0 c. Adding a new paragraph (a)(5). The revision and addition read as follows: 1.102-2 Performance standards. (a) * * * (4) The Government must not hesitate to communicate with the commercial sector as early as possible in the acquisition cycle to help the Government determine the capabilities available in the commercial marketplace. Government acquisition personnel are permitted and encouraged to engage in responsible and constructive exchanges with industry as part of market research (see 10.002), so long as those exchanges are consistent with existing laws, regulations, and promote a fair competitive environment. (5) The Government will maximize its use of commercial products and services in meeting Government requirements. * * * * * [FR Doc. 2016-28450 Filed 11-28-16; 8:45 am] BILLING CODE 6820-EP-P
![85914 Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Proposed Rules
substantial number of small entities DEPARTMENT OF DEFENSE Comments received generally will be
under the Regulatory Flexibility Act (5 posted without change to http://
U.S.C. 601 et seq.); GENERAL SERVICES www.regulations.gov, including any
ADMINISTRATION personal and/or business confidential
• Does not contain any unfunded
mandate or significantly or uniquely information provided. To confirm
NATIONAL AERONAUTICS AND receipt of your comment(s), please
affect small governments, as described SPACE ADMINISTRATION check www.regulations.gov,
in the Unfunded Mandates Reform Act
approximately two to three days after
of 1995 (Pub. L. 104–4); 48 CFR Part 1 submission to verify posting (except
• Does not have Federalism [FAR Case 2016–005; Docket No. 2016– allow 30 days for posting of comments
implications as specified in Executive 0005, Sequence No.1] submitted by mail).
Order 13132 (64 FR 43255, August 10, FOR FURTHER INFORMATION CONTACT: For
1999); RIN 9000–AN29 clarification of content, contact Mr.
• Is not an economically significant Michael O. Jackson, Procurement
regulatory action based on health or Federal Acquisition Regulation: Analyst, at 202–208–4949. For
Effective Communication between information pertaining to status or
safety risks subject to Executive Order
Government and Industry publication schedules, contact the
13045 (62 FR 19885, April 23, 1997);
AGENCY: Department of Defense (DoD), Regulatory Secretariat Division at 202–
• Is not a significant regulatory action 501–4755. Please cite ‘‘FAR Case 2016–
subject to Executive Order 13211 (66 FR General Services Administration (GSA),
and National Aeronautics and Space 005.’’
28355, May 22, 2001);
Administration (NASA). SUPPLEMENTARY INFORMATION:
• Is not subject to requirements of ACTION: Proposed rule.
section 12(d) of the National I. Background
Technology Transfer and Advancement SUMMARY: DoD, GSA, and NASA are DoD, GSA, and NASA (the
Act of 1995 (15 U.S.C. 272 note) because proposing to amend the Federal ‘‘Councils’’) are proposing to amend the
application of those requirements would Acquisition Regulation (FAR) to FAR to implement section 887 of NDAA
be inconsistent with the CAA; and implement a section of the National for FY 2016. The rule clarifies that
Defense Authorization Act (NDAA) for agency acquisition personnel are
• Does not provide the EPA with the
Fiscal Year (FY) 2016. This rule clarifies permitted and encouraged to engage in
discretionary authority to address, as
that agency acquisition personnel are responsible and constructive exchanges
appropriate, disproportionate human permitted and encouraged to engage in with industry, in a manner that is
health or environmental effects, using responsible and constructive exchanges consistent with existing law and
practicable and legally permissible with industry, so long as those regulation, and does not promote an
methods, under Executive Order 12898 exchanges are consistent with existing unfair competitive advantage.
(59 FR 7629, February 16, 1994). law and regulation and do not promote FAR 1.102 establishes the guiding
In addition, the SIP is not approved to an unfair competitive advantage to principles within the FAR to—
apply on any Indian reservation land or particular firms. (1) Satisfy the customer in terms of
in any other area where the EPA or an DATES: Interested parties should submit cost, quality, and timeliness of the
Indian tribe has demonstrated that a comments to the Regulatory Secretariat delivered product or service;
tribe has jurisdiction. In those areas of Division at one of the addresses shown (2) Minimize administrative operating
Indian country, the proposed rule does below on or before January 30, 2017 to costs;
not have tribal implications and will not be considered in the formulation of a (3) Conduct business with integrity,
impose substantial direct costs on tribal final rule. fairness, and openness; and
ADDRESSES: Submit comments in (4) Fulfill public policy objectives.
governments or preempt tribal law as
response to FAR case 2016–005 by any FAR 1.102–2 provides the
specified by Executive Order 13175 (65
of the following methods: requirements or ‘‘performance
FR 67249, November 9, 2000).
• Regulations.gov: http:// standards’’ for transforming these
List of Subjects in 40 CFR Part 52 www.regulations.gov. Submit comments principles into positive, results-oriented
via the Federal eRulemaking portal by acquisition strategies. A communication
Environmental protection, Air entering ‘‘FAR Case 2016–005’’ under policy that takes into account a range of
pollution control, Carbon monoxide, the heading ‘‘Enter Keyword or ID’’ and approaches for effectively describing the
Incorporation by reference, selecting ‘‘Search.’’ Select the link Government’s requirements to private
Intergovernmental relations, Lead, ‘‘Comment Now’’ that corresponds with industry is an essential component of
Nitrogen dioxide, Ozone, Particulate ‘‘FAR Case 2016–005.’’ Follow the the Federal acquisition process. This
matter, Reporting and recordkeeping instructions provided on the screen. concept is in keeping with the direction
requirements, Sulfur dioxide, Volatile Please include your name, company expressed by Congress in section 887 of
organic compounds. name (if any), and ‘‘FAR Case 2016– the NDAA for FY 2016.
Authority: 42 U.S.C. 7401 et seq.
005’’ on your attached document. II. Discussion and Analysis
• Mail: General Services
Dated: November 16, 2016. Administration, Regulatory Secretariat The proposed rule will amend FAR
jstallworth on DSK7TPTVN1PROD with PROPOSALS
Ron Curry, Division, ATTN: Ms. Flowers, 1800 F 1.102–2(a)(4) to specifically state that
Regional Administrator, Region 6. Street NW., 2nd Floor, Washington, DC Government acquisition personnel are
[FR Doc. 2016–28673 Filed 11–28–16; 8:45 am]
20405. permitted and encouraged to engage in
Instructions: Please submit comments responsible and constructive exchanges
BILLING CODE 6560–50–P
only and cite ‘‘FAR Case 2016–005: with industry, so long as those
Effective Communication between exchanges are consistent with existing
Government and Industry’’ in all laws and regulations, and promote a fair
correspondence related to this case. competitive environment. This revision,
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![Federal Register / Vol. 81, No. 229 / Tuesday, November 29, 2016 / Proposed Rules 85915
coupled with the existing guidance in IV. Executive Order 12866 and 13563 concerning the existing regulations in
the FAR subpart 1.1 and the market Executive Orders (E.O.s) 12866 and subparts affected by this proposed rule
research strategies set forth in FAR part 13563 direct agencies to assess all costs consistent with 5 U.S.C. 610. Interested
10, will better equip Federal acquisition and benefits of available regulatory parties must submit such comments
officials with the information needed to alternatives and, if regulation is separately and should cite 5 U.S.C. 610
issue high-quality solicitations. necessary, to select regulatory (FAR Case 2016–005) in
III. Public Feedback approaches that maximize net benefits correspondence.
In the winter of 2011, the Office of (including potential economic, VI. Paperwork Reduction Act
Federal Procurement Policy (OFPP) environmental, public health and safety
effects, distributive impacts, and The rule does not contain any
launched a campaign to address information collection requirements that
misconceptions commonly held by equity). E.O. 13563 emphasizes the
importance of quantifying both costs require the approval of the Office of
industry and Government regarding the Management and Budget under the
role of communication during the and benefits, of reducing costs, of
harmonizing rules, and of promoting Paperwork Reduction Act (44 U.S.C.
acquisition process in order to chapter 35).
encourage early, frequent, and flexibility. This is not a significant
constructive engagement with industry regulatory action and, therefore, was not List of Subjects in 48 CFR Part 1
to achieve better acquisition outcomes. subject to review under Section 6(b) of
E.O. 12866, Regulatory Planning and Government procurement.
The first of two ‘‘myth-busting’’
memoranda, issued in February 2011, Review, dated September 30, 1993. This Dated: November 21, 2016.
focused on misconceptions on the part rule is not a major rule under 5 U.S.C. William F. Clark,
of Federal agencies and a second 804. Director, Office of Governmentwide
memorandum, issued in May 2012, V. Regulatory Flexibility Act Acquisition Policy, Office of Acquisition
addressed misconceptions that may be Policy, Office of Governmentwide Policy.
DoD, GSA, and NASA do not expect
held by some in the vendor community.
the proposed rule to have a significant Therefore, DoD, GSA, and NASA are
Both memoranda described best
economic impact on a substantial proposing to amend 48 CFR part 1 as set
practices for effective communication
that have been put into use by the number of small entities within the forth below:
acquisition community, with good meaning of the Regulatory Flexibility
Act 5 U.S.C. 601, et seq., because the PART 1—FEDERAL ACQUISITION
results. Copies of these memoranda,
proposed changes relate to internal REGULATIONS SYSTEM
‘‘Myth-Busting: Addressing
Misconceptions to Improve Government business practices.
However, an Initial Regulatory ■ 1. The authority citation for 48 CFR
Communication with Industry during
Flexibility Analysis (IRFA) has been part 1 continues to read as follows:
the Acquisition Process’’ and ‘‘Myth-
Busting 2: Addressing Misconceptions prepared and is summarized as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C.
and Further Improving Communication DoD, GSA, and NASA are proposing to chapter 137; and 51 U.S.C. 20113.
During the Acquisition Process,’’ are amend the Federal Acquisition Regulation
(FAR) to implement section 887 of the ■ 2. Amend section 1.102–2 by—
available at https://
www.whitehouse.gov/omb/ National Defense Authorization Act (NDAA) ■ a. Revising paragraph (a)(4);
for FY 2016, which provides that agency ■ b. Redesignating paragraphs (a)(5)
procurement_index_memo. The acquisition personnel are permitted and
Councils seek to continue the through (7) as paragraphs (a)(6) through
encouraged to engage in responsible and
conversation initiated by these constructive exchanges with industry. Any
(8), respectively; and
memoranda and welcome any effect to small businesses should be positive ■ c. Adding a new paragraph (a)(5).
suggestions from the public to further in that industry, including small business, The revision and addition read as
enhance open communication between will benefit from better communication with follows:
industry and the Federal acquisition the Government. Based on data obtained
community. The Councils specifically from the Federal Procurement Data System— 1.102–2 Performance standards.
Next Generation (FPDS–NG) on June 21,
request information regarding the 2016, approximately 112,150 businesses (a) * * *
following: received Federal contracts during fiscal year (4) The Government must not hesitate
• Which phase(s) of the Federal 2015, and of these, approximately 75,000 or to communicate with the commercial
acquisition process—i.e., acquisition 67 percent were small businesses. sector as early as possible in the
planning/market research; solicitation/ This rule does not impose any new
acquisition cycle to help the
award; post award—would benefit from reporting, recordkeeping or other compliance
Government determine the capabilities
more exchanges with industry and what requirements. The rule does not duplicate,
overlap, or conflict with any other Federal available in the commercial
specific policies or procedures would marketplace. Government acquisition
rules.
enhance communication during these personnel are permitted and encouraged
phases? The Regulatory Secretariat Division
to engage in responsible and
• Is there a current FAR policy that has submitted a copy of the IRFA to the
constructive exchanges with industry as
may inhibit communication? If so, what Chief Counsel for Advocacy of the Small
part of market research (see 10.002), so
is the policy, and how could this policy Business Administration. A copy of the
long as those exchanges are consistent
be revised to remove barriers to effective IRFA may be obtained from the
jstallworth on DSK7TPTVN1PROD with PROPOSALS
with existing laws, regulations, and
communication? Regulatory Secretariat Division. DoD,
• Might it be beneficial to encourage, promote a fair competitive environment.
GSA and NASA invite comments from
or require, contracting officers to small business concerns and other (5) The Government will maximize its
conduct discussions with offerors after interested parties on the expected use of commercial products and services
establishing the competitive range for impact of this proposed rule on small in meeting Government requirements.
contracts of a high dollar threshold? If entities. * * * * *
so, what would be the appropriate DoD, GSA, and NASA will also [FR Doc. 2016–28450 Filed 11–28–16; 8:45 am]
dollar threshold? consider comments from small entities BILLING CODE 6820–EP–P
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Document Created: 2016-11-29 00:33:18
Document Modified: 2016-11-29 00:33:18
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Proposed Rules | |
| Action | Proposed rule. | |
| Dates | Interested parties should submit comments to the Regulatory | |
| Contact | For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case 2016-005.'' | |
| FR Citation | 81 FR 85914 | |
| RIN Number | 9000-AN29 |
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