83_FR_48456 83 FR 48271 - Federal Acquisition Regulation: Evaluation Factors for Multiple-Award Contracts

83 FR 48271 - Federal Acquisition Regulation: Evaluation Factors for Multiple-Award Contracts

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 185 (September 24, 2018)

Page Range48271-48273
FR Document2018-20669

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) 2017.

Federal Register, Volume 83 Issue 185 (Monday, September 24, 2018)
[Federal Register Volume 83, Number 185 (Monday, September 24, 2018)]
[Proposed Rules]
[Pages 48271-48273]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-20669]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 13, 15, and 16

[FAR Case 2017-010; Docket No. 2017-0009; Sequence No. 1]
RIN 9000-AN54


Federal Acquisition Regulation: Evaluation Factors for Multiple-
Award Contracts

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

ACTION: Proposed rule.

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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) 2017.

DATES: Interested parties should submit comments to the Regulatory 
Secretariat Division at one of the addresses shown below on or before 
November 23, 2018 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2017-010 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by entering 
``FAR Case 2017-010'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search''. Select the link ``Comment Now'' that corresponds 
with ``FAR Case 2017-010''. Follow the instructions provided on the 
screen. Please include your name, company name (if any), and ``FAR Case 
2017-010'' on your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat Division, ATTN: Lois Mandell, 1800 F Street NW, 2nd Floor, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite ``FAR case 2017-
010'' 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 
2017-010.''

SUPPLEMENTARY INFORMATION:

I. Background

    Section 825 of the NDAA for FY 2017 (Pub. L. 114-328) amends 10 
U.S.C. 2305(a)(3) to modify the requirement to consider cost or price 
as an evaluation factor for the award for certain multiple-award task 
order contracts issued by DoD, NASA, or the Coast Guard. Section 825 
provides that, at the Government's discretion, solicitations for 
multiple-award contracts for the same or similar services that state 
the Government

[[Page 48272]]

intends to award a contract to each qualifying offeror do not require 
price or cost as an evaluation factor for contract award. This 
exception does not apply to solicitations for multiple-award contracts 
that provide for sole source orders pursuant to section 8(a) of the 
Small Business Act (15 U.S.C. 637(a)). When cost or price is not 
evaluated during contract award, the contracting officer shall consider 
price or cost as a factor for the award of each order under the 
contract. Section 825 of the NDAA for FY 2017 also amends 10 U.S.C. 
2304c(b) to add exemptions for the use of competitive procedures when 
placing an order under a multiple-award contract.

II. Discussion and Analysis

    This rule proposes to amend the FAR, as follows:
     FAR parts 13 and 15 are revised to add, for use by DoD, 
NASA, or the Coast Guard, the exception to requiring price or cost as 
an evaluation factor in solicitations valued above the simplified 
acquisition threshold for multiple-award contracts for the same or 
similar services when the Government intends to award a contract to 
each and all qualifying offerors; explain what a qualifying offeror is 
in terms of the rule; and clarify that the exception shall not apply to 
solicitations for multiple-award contracts that provide for sole source 
orders pursuant to section 8(a) of the Small Business Act (15 U.S.C. 
637(a)).
     FAR part 16 is revised to add, for use by DoD, NASA, or 
the Coast Guard, the exceptions for use of other than full and open 
competition, listed in FAR 6.302, to the list of exceptions to fair 
opportunity at FAR 16.505(b)(2).

III. Expected Impact of the Proposed Rule and Proposed Cost Savings

    Currently, offerors on solicitations for multiple-award contracts 
for services are required to submit cost or price information with 
their proposals in order to be eligible for award. The time and effort 
that offerors expend to produce this cost or price information varies 
according to numerous factors, such as the proposed contract type, the 
source selection approach, or the offeror's internal processes and 
resources.
    Upon implementation of a final rule, contracting officers from DoD, 
NASA, and the Coast Guard may choose not to include cost or price as an 
evaluation factor in solicitations for multiple-award contracts for 
services, as long as an award will be made to each and all qualified 
offerors. As a result, offerors responding to these solicitations will 
not incur costs to develop and prepare the cost or price information 
typically required to be eligible for contract award. Subsequently, the 
FAR also requires cost and price information to be evaluated before the 
award of an order placed under a multiple-award contract. This rule 
does not impact that process. As this rule, when utilized, will remove 
a burden from offerors and does not implement any new requirements on 
offerors, DoD, GSA, and NASA consider this rule to be deregulatory.
    In an attempt to monetize an offeror's cost savings as a result of 
this rule, DoD, GSA, and NASA seek input from service contractors that 
could be impacted by this rule. In particular, DoD, GSA, and NASA 
welcome feedback on (i) the type of personnel (e.g., accountants or 
program managers) used to develop and prepare cost or price information 
for proposals on multiple-award service contracts; (ii) the number of 
hours (in a range) that would be spent by each type of personnel to 
develop and prepare the cost or price information for such a proposal; 
and (iii) the average hourly rate for each type of personnel used to 
develop and prepare the cost or price information for such a proposal, 
or the total average amount spent for each type of personnel to develop 
and prepare the cost or price information for such a proposal. Please 
identify the types of services you typically submit proposals for and 
whether or not your efforts/costs to provide cost or price information 
vary depending on different factors related to the solicitation (e.g., 
contract type or service type). If you do experience a variation in 
your efforts/costs to provide cost or price information, please 
describe these variations in your efforts/cost, to the extent possible, 
in your response.

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    No contract clauses or solicitation provisions are being created or 
revised by this rule.

V. 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.

VI. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866. However, as explained 
in Section III of this preamble, DoD, GSA, and NASA believe the rule is 
deregulatory and seek public input on this preliminary determination, 
as well as information that can help monetize any savings.

VII. Regulatory Flexibility Act

    DoD, GSA, and NASA do 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. 
However, an Initial Regulatory Flexibility Analysis (IRFA) has been 
performed and is summarized as follows:

    DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement section 825 of the 
National Defense Authorization Act (NDAA) for FY 2017 (Pub. L. 114-
328; 10 U.S.C. 2305(a)(3) and 10 U.S.C. 2304c(b)(5)).
    The objective of this proposed rule is to implement section 825 
of the NDAA for FY 2017.
    This rule is not expected 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. There were 3,963 
new multiple-award contracts for services awarded in Fiscal Year 
2016, and 2,810 (71 percent) of these actions were awarded to small 
business. The proposed rule applies to all entities who do business 
with the Federal Government, but it is not expected to have a 
significant impact.
    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. There are no known 
significant alternative approaches to the proposed rule that would 
meet the requirements of the applicable statute.

    The Regulatory Secretariat 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. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in

[[Page 48273]]

subparts affected by this 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 2017-010) in correspondence.

VIII. Paperwork Reduction Act

    This proposed 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 Parts 13, 15, and 16

    Government procurement.

    Dated: September 18, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR parts 
13, 15, and 16 as set forth below:

0
1. The authority citation for 48 CFR parts 13, 15, and 16 continues to 
read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
2. Amend 13.106-1 by revising paragraph (a)(2) to read as follows:


13.106-1   Soliciting competition.

    (a) * * *
    (2)(i) When soliciting quotations or offers, the contracting 
officer shall notify potential quoters or offerors of the basis on 
which award will be made (price alone or price and other factors, e.g., 
past performance and quality).
    (ii) Contracting officers are encouraged to use best value.
    (iii) Solicitations are not required to state the relative 
importance assigned to each evaluation factor and subfactor, nor are 
they required to include subfactors.
    (iv) For DoD, NASA, and the Coast Guard--
    (A) When issuing a solicitation valued above the simplified 
acquisition threshold for a multiple-award contract for the same or 
similar services and the solicitation states that the Government 
intends to make an award to each and all qualifying offerors, the 
contracting officer may choose not to include price or cost as an 
evaluation factor for the contract award (10 U.S.C. 2305(a)(3));
    (B) Whether or not cost or price is evaluated at contract award, 
the contracting officer shall consider price or cost as one of the 
factors in the selection decision for each order (see 16.505);
    (C) A qualifying offeror is an offeror that is determined to be a 
responsible source, submits a technically acceptable proposal that 
conforms to the requirements of the solicitation, and the contracting 
officer has no reason to believe would be likely to offer other than 
fair and reasonable pricing (10 U.S.C. 2305(a)(3)); and
    (D) The exception at 13.106-1(a)(2)(iv)(A) shall not apply to 
solicitations for multiple-award contracts that provide for sole source 
orders pursuant to section 8(a) of the Small Business Act (15 U.S.C. 
637(a)).

PART 15--CONTRACTING BY NEGOTIATION

0
3. Amend 15.304 by revising paragraph (c)(1) and paragraph (e) 
introductory text to read as follows:


15.304   Evaluation factors and significant subfactors.

* * * * *
    (c) * * *
    (1)(i) Price or cost to the Government shall be evaluated in every 
source selection (10 U.S.C. 2305(a)(3)(A)(ii) and 41 U.S.C. 
3306(c)(1)(B)) (also see part 36 for architect-engineer contracts), 
subject to the exception listed in paragraph (c)(1)(ii) of this section 
for use by DoD, NASA, and the Coast Guard.
    (ii) For DoD, NASA, and the Coast Guard--
    (A) When issuing a solicitation valued above the simplified 
acquisition threshold for a multiple-award contract for the same or 
similar services and the solicitation states that the Government 
intends to make an award to each and all qualifying offerors, the 
contracting officer may choose not to include price or cost as an 
evaluation factor for the contract award (10 U.S.C. 2305(a)(3));
    (B) Whether or not cost or price is evaluated at contract award, 
the contracting officer shall consider price or cost as one of the 
factors in the selection decision for each order (see 16.505);
    (C) A qualifying offeror is an offeror that is determined to be a 
responsible source, submits a technically acceptable proposal that 
conforms to the requirements of the solicitation, and the contracting 
officer has no reason to believe would be likely to offer other than 
fair and reasonable pricing (10 U.S.C. 2305(a)(3)); and
    (D) The exception in paragraph (c)(1)(ii)(A) of this section shall 
not apply to solicitations for multiple-award contracts that provide 
for sole source orders pursuant to section 8(a) of the Small Business 
Act (15 U.S.C. 637(a));
* * * * *
    (e) Unless the exception at 15.304(c)(1)(ii)(A) of this section 
applies, the solicitation shall also state, at a minimum, whether all 
evaluation factors other than cost or price, when combined, are--
* * * * *

PART 16--TYPES OF CONTRACTS

0
 4. Amend 16.505 by adding paragraph (b)(2)(i)(G) to read as follows:


16.505   Ordering.

* * * * *
    (b) * * *
    (2) * * *
    (i) * * *
    (G) For DoD, NASA, and the Coast Guard, the order satisfies one of 
the exceptions permitting the use of other than full and open 
competition listed in 6.302 (10 U.S.C. 2304c(b)(5)). The public 
interest exception shall not be used unless Congress is notified in 
accordance with 10 U.S.C. 2304(c)(7).
* * * * *
[FR Doc. 2018-20669 Filed 9-21-18; 8:45 am]
 BILLING CODE 6820-EP-P



                                                                     Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Proposed Rules                                           48271

                                                 acquisition that may be subject to                        (iv) * * *                                          Acquisition Regulation (FAR) to
                                                 § 1.385–3(b)(2) or (3)).                                  (A) A debt instrument that is issued                implement a section of the National
                                                 *       *     *     *     *                             by a disregarded entity is deemed to be               Defense Authorization Act (NDAA) for
                                                    (d) * * *                                            exchanged for stock of the regarded                   Fiscal Year (FY) 2017.
                                                    (1) * * *                                            owner under § 1.385–3T(d)(4); * * *                   DATES: Interested parties should submit
                                                    (i) In general. If a debt instrument (as             *     *    *     *    *                               comments to the Regulatory Secretariat
                                                 defined in § 1.385–3(g)(4)) is deemed to                                                                      Division at one of the addresses shown
                                                                                                         § 1.385–2    [Removed]                                below on or before November 23, 2018
                                                 be exchanged under the section 385
                                                 regulations, in whole or in part, for                   ■ Par. 3. Section 1.385–2 is removed.                 to be considered in the formulation of
                                                 stock, the holder is treated for all federal            ■ Par. 4. Section 1.385–3 is amended by               a final rule.
                                                 tax purposes as having realized an                      revising paragraph (g)(4) to read as                  ADDRESSES: Submit comments in
                                                 amount equal to the holder’s adjusted                   follows:                                              response to FAR Case 2017–010 by any
                                                 basis in that portion of the debt                       § 1.385–3 Transaction in which debt                   of the following methods:
                                                 instrument as of the date of the deemed                 proceeds are distributed or that have a                  • Regulations.gov: http://
                                                 exchange (and as having basis in the                    similar effect.                                       www.regulations.gov.
                                                 stock deemed to be received equal to                    *     *     *     *     *                                Submit comments via the Federal
                                                 that amount), and, except as provided in                  (g) * * *                                           eRulemaking portal by entering ‘‘FAR
                                                 paragraph (d)(1)(iv)(B) of this section,                  (4) Debt instrument. The term debt                  Case 2017–010’’ under the heading
                                                 the issuer is treated for all federal tax               instrument means an interest that                     ‘‘Enter Keyword or ID’’ and selecting
                                                 purposes as having retired that portion                 would, but for the application of this                ‘‘Search’’. Select the link ‘‘Comment
                                                 of the debt instrument for an amount                    section, be treated as a debt instrument              Now’’ that corresponds with ‘‘FAR Case
                                                 equal to its adjusted issue price as of the             as defined in section 1275(a) and                     2017–010’’. Follow the instructions
                                                 date of the deemed exchange. In                         § 1.1275–1(d).                                        provided on the screen. Please include
                                                 addition, neither party accounts for any                                                                      your name, company name (if any), and
                                                                                                         *     *     *     *     *
                                                 accrued but unpaid qualified stated                                                                           ‘‘FAR Case 2017–010’’ on your attached
                                                                                                         ■ Par. 5. Section 1.1275–1 is amended
                                                 interest on the debt instrument or any                                                                        document.
                                                                                                         by revising the last sentence of
                                                 foreign exchange gain or loss with                                                                               • Mail: General Services
                                                                                                         paragraph (d) to read as follows:
                                                 respect to that accrued but unpaid                                                                            Administration, Regulatory Secretariat
                                                 qualified stated interest (if any) as of the            § 1.1275–1    Definitions.                            Division, ATTN: Lois Mandell, 1800 F
                                                 deemed exchange. This paragraph                         *      *    *     *    *                              Street NW, 2nd Floor, Washington, DC
                                                 (d)(1)(i) does not affect the rules that                   (d) * * * See § 1.385–3 for rules that             20405.
                                                 otherwise apply to the debt instrument                  treat certain instruments that otherwise                 Instructions: Please submit comments
                                                 prior to the date of the deemed                         would be treated as indebtedness as                   only and cite ‘‘FAR case 2017–010’’ in
                                                 exchange (for example, this paragraph                   stock for federal tax purposes.                       all correspondence related to this case.
                                                 (d)(1)(i) does not affect the issuer’s                                                                        Comments received generally will be
                                                                                                         *      *    *     *    *
                                                 deduction of accrued but unpaid                                                                               posted without change to http://
                                                 qualified stated interest otherwise                     Kirsten Wielobob,                                     www.regulations.gov, including any
                                                 deductible prior to the date of the                     Deputy Commissioner for Services and                  personal and/or business confidential
                                                 deemed exchange). Moreover, the stock                   Enforcement.                                          information provided. To confirm
                                                 issued in the deemed exchange is not                    [FR Doc. 2018–20652 Filed 9–21–18; 8:45 am]           receipt of your comment(s), please
                                                 treated as a payment of accrued but                     BILLING CODE 4830–01–P                                check www.regulations.gov,
                                                 unpaid original issue discount or                                                                             approximately two to three days after
                                                 qualified stated interest on the debt                                                                         submission to verify posting (except
                                                 instrument for federal tax purposes.                    DEPARTMENT OF DEFENSE                                 allow 30 days for posting of comments
                                                    (ii) Section 988. Notwithstanding the                                                                      submitted by mail).
                                                 first sentence of paragraph (d)(1)(i) of                GENERAL SERVICES                                      FOR FURTHER INFORMATION CONTACT: For
                                                 this section, the rules of § 1.988–2(b)(13)             ADMINISTRATION                                        clarification of content, contact Mr.
                                                 apply to require the holder and the                                                                           Michael O. Jackson, Procurement
                                                 issuer of a debt instrument that is                     NATIONAL AERONAUTICS AND                              Analyst, at 202–208–4949. For
                                                 deemed to be exchanged under the                        SPACE ADMINISTRATION                                  information pertaining to status or
                                                 section 385 regulations, in whole or in                                                                       publication schedules, contact the
                                                 part, for stock to recognize any exchange               48 CFR Parts 13, 15, and 16                           Regulatory Secretariat Division at 202–
                                                 gain or loss, other than any exchange                   [FAR Case 2017–010; Docket No. 2017–
                                                                                                                                                               501–4755. Please cite ‘‘FAR Case 2017–
                                                 gain or loss with respect to accrued but                0009; Sequence No. 1]                                 010.’’
                                                 unpaid qualified stated interest that is                                                                      SUPPLEMENTARY INFORMATION:
                                                 not taken into account under paragraph                  RIN 9000–AN54
                                                 (d)(1)(i) of this section at the time of the                                                                  I. Background
                                                 deemed exchange. * * *                                  Federal Acquisition Regulation:                          Section 825 of the NDAA for FY 2017
                                                    (iii) Section 108(e)(8). For purposes of             Evaluation Factors for Multiple-Award                 (Pub. L. 114–328) amends 10 U.S.C.
                                                 section 108(e)(8), if the issuer of a debt              Contracts                                             2305(a)(3) to modify the requirement to
daltland on DSKBBV9HB2PROD with PROPOSALS




                                                 instrument is treated as having retired                 AGENCY:  Department of Defense (DoD),                 consider cost or price as an evaluation
                                                 all or a portion of the debt instrument                 General Services Administration (GSA),                factor for the award for certain multiple-
                                                 in exchange for stock under paragraph                   and National Aeronautics and Space                    award task order contracts issued by
                                                 (d)(1)(i) of this section, the stock is                 Administration (NASA).                                DoD, NASA, or the Coast Guard. Section
                                                 treated as having a fair market value                   ACTION: Proposed rule.                                825 provides that, at the Government’s
                                                 equal to the adjusted issue price of that                                                                     discretion, solicitations for multiple-
                                                 portion of the debt instrument as of the                SUMMARY: DoD, GSA, and NASA are                       award contracts for the same or similar
                                                 date of the deemed exchange.                            proposing to amend the Federal                        services that state the Government


                                            VerDate Sep<11>2014   16:58 Sep 21, 2018   Jkt 244001   PO 00000   Frm 00007   Fmt 4702   Sfmt 4702   E:\FR\FM\24SEP1.SGM   24SEP1


                                                 48272               Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Proposed Rules

                                                 intends to award a contract to each                     the cost or price information typically               flexibility. This is not a significant
                                                 qualifying offeror do not require price or              required to be eligible for contract                  regulatory action and, therefore, was not
                                                 cost as an evaluation factor for contract               award. Subsequently, the FAR also                     subject to review under Section 6(b) of
                                                 award. This exception does not apply to                 requires cost and price information to be             E.O. 12866, Regulatory Planning and
                                                 solicitations for multiple-award                        evaluated before the award of an order                Review, dated September 30, 1993. This
                                                 contracts that provide for sole source                  placed under a multiple-award contract.               rule is not a major rule under 5 U.S.C.
                                                 orders pursuant to section 8(a) of the                  This rule does not impact that process.               804.
                                                 Small Business Act (15 U.S.C. 637(a)).                  As this rule, when utilized, will remove
                                                 When cost or price is not evaluated                     a burden from offerors and does not                   VI. Executive Order 13771
                                                 during contract award, the contracting                  implement any new requirements on                       This rule is not subject to E.O. 13771,
                                                 officer shall consider price or cost as a               offerors, DoD, GSA, and NASA consider                 because this rule is not a significant
                                                 factor for the award of each order under                this rule to be deregulatory.                         regulatory action under E.O. 12866.
                                                 the contract. Section 825 of the NDAA                     In an attempt to monetize an offeror’s              However, as explained in Section III of
                                                 for FY 2017 also amends 10 U.S.C.                       cost savings as a result of this rule, DoD,           this preamble, DoD, GSA, and NASA
                                                 2304c(b) to add exemptions for the use                  GSA, and NASA seek input from service                 believe the rule is deregulatory and seek
                                                 of competitive procedures when placing                  contractors that could be impacted by                 public input on this preliminary
                                                 an order under a multiple-award                         this rule. In particular, DoD, GSA, and               determination, as well as information
                                                 contract.                                               NASA welcome feedback on (i) the type                 that can help monetize any savings.
                                                                                                         of personnel (e.g., accountants or
                                                 II. Discussion and Analysis                             program managers) used to develop and                 VII. Regulatory Flexibility Act
                                                    This rule proposes to amend the FAR,                 prepare cost or price information for                    DoD, GSA, and NASA do not expect
                                                 as follows:                                             proposals on multiple-award service                   this rule to have a significant economic
                                                    • FAR parts 13 and 15 are revised to                 contracts; (ii) the number of hours (in a             impact on a substantial number of small
                                                 add, for use by DoD, NASA, or the Coast                 range) that would be spent by each type               entities within the meaning of the
                                                 Guard, the exception to requiring price                 of personnel to develop and prepare the               Regulatory Flexibility Act, 5 U.S.C. 601,
                                                 or cost as an evaluation factor in                      cost or price information for such a                  et seq. However, an Initial Regulatory
                                                 solicitations valued above the simplified               proposal; and (iii) the average hourly                Flexibility Analysis (IRFA) has been
                                                 acquisition threshold for multiple-                     rate for each type of personnel used to               performed and is summarized as
                                                 award contracts for the same or similar                 develop and prepare the cost or price                 follows:
                                                 services when the Government intends                    information for such a proposal, or the                  DoD, GSA, and NASA are proposing to
                                                 to award a contract to each and all                     total average amount spent for each type              amend the Federal Acquisition Regulation
                                                 qualifying offerors; explain what a                     of personnel to develop and prepare the               (FAR) to implement section 825 of the
                                                 qualifying offeror is in terms of the rule;             cost or price information for such a                  National Defense Authorization Act (NDAA)
                                                 and clarify that the exception shall not                proposal. Please identify the types of                for FY 2017 (Pub. L. 114–328; 10 U.S.C.
                                                 apply to solicitations for multiple-award               services you typically submit proposals               2305(a)(3) and 10 U.S.C. 2304c(b)(5)).
                                                 contracts that provide for sole source                  for and whether or not your efforts/costs                The objective of this proposed rule is to
                                                                                                                                                               implement section 825 of the NDAA for FY
                                                 orders pursuant to section 8(a) of the                  to provide cost or price information vary             2017.
                                                 Small Business Act (15 U.S.C. 637(a)).                  depending on different factors related to                This rule is not expected to have a
                                                    • FAR part 16 is revised to add, for                 the solicitation (e.g., contract type or              significant economic impact on a substantial
                                                 use by DoD, NASA, or the Coast Guard,                   service type). If you do experience a                 number of small entities within the meaning
                                                 the exceptions for use of other than full               variation in your efforts/costs to provide            of the Regulatory Flexibility Act, 5 U.S.C.
                                                 and open competition, listed in FAR                     cost or price information, please                     601, et seq. There were 3,963 new multiple-
                                                 6.302, to the list of exceptions to fair                describe these variations in your efforts/            award contracts for services awarded in
                                                 opportunity at FAR 16.505(b)(2).                        cost, to the extent possible, in your                 Fiscal Year 2016, and 2,810 (71 percent) of
                                                                                                                                                               these actions were awarded to small
                                                 III. Expected Impact of the Proposed                    response.
                                                                                                                                                               business. The proposed rule applies to all
                                                 Rule and Proposed Cost Savings                          IV. Applicability to Contracts at or                  entities who do business with the Federal
                                                                                                         Below the Simplified Acquisition                      Government, but it is not expected to have
                                                    Currently, offerors on solicitations for
                                                                                                         Threshold and for Commercial Items,                   a significant impact.
                                                 multiple-award contracts for services                                                                            This rule does not impose any new
                                                 are required to submit cost or price                    Including Commercially Available Off-
                                                                                                                                                               reporting, recordkeeping or other compliance
                                                 information with their proposals in                     the-Shelf Items                                       requirements. The rule does not duplicate,
                                                 order to be eligible for award. The time                  No contract clauses or solicitation                 overlap, or conflict with any other Federal
                                                 and effort that offerors expend to                      provisions are being created or revised               rules. There are no known significant
                                                 produce this cost or price information                  by this rule.                                         alternative approaches to the proposed rule
                                                 varies according to numerous factors,                                                                         that would meet the requirements of the
                                                 such as the proposed contract type, the                 V. Executive Order 12866 and 13563                    applicable statute.
                                                 source selection approach, or the                          Executive Orders (E.O.s) 12866 and                   The Regulatory Secretariat has
                                                 offeror’s internal processes and                        13563 direct agencies to assess all costs             submitted a copy of the IRFA to the
                                                 resources.                                              and benefits of available regulatory                  Chief Counsel for Advocacy of the Small
                                                    Upon implementation of a final rule,                 alternatives and, if regulation is                    Business Administration. A copy of the
                                                 contracting officers from DoD, NASA,                    necessary, to select regulatory                       IRFA may be obtained from the
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                                                 and the Coast Guard may choose not to                   approaches that maximize net benefits                 Regulatory Secretariat. DoD, GSA, and
                                                 include cost or price as an evaluation                  (including potential economic,                        NASA invite comments from small
                                                 factor in solicitations for multiple-award              environmental, public health and safety               business concerns and other interested
                                                 contracts for services, as long as an                   effects, distributive impacts, and                    parties on the expected impact of this
                                                 award will be made to each and all                      equity). E.O. 13563 emphasizes the                    rule on small entities.
                                                 qualified offerors. As a result, offerors               importance of quantifying both costs                    DoD, GSA, and NASA will also
                                                 responding to these solicitations will                  and benefits, of reducing costs, of                   consider comments from small entities
                                                 not incur costs to develop and prepare                  harmonizing rules, and of promoting                   concerning the existing regulations in


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                                                                     Federal Register / Vol. 83, No. 185 / Monday, September 24, 2018 / Proposed Rules                                                 48273

                                                 subparts affected by this rule consistent               threshold for a multiple-award contract               all qualifying offerors, the contracting
                                                 with 5 U.S.C. 610. Interested parties                   for the same or similar services and the              officer may choose not to include price
                                                 must submit such comments separately                    solicitation states that the Government               or cost as an evaluation factor for the
                                                 and should cite 5 U.S.C. 610 (FAR Case                  intends to make an award to each and                  contract award (10 U.S.C. 2305(a)(3));
                                                 2017–010) in correspondence.                            all qualifying offerors, the contracting                 (B) Whether or not cost or price is
                                                                                                         officer may choose not to include price               evaluated at contract award, the
                                                 VIII. Paperwork Reduction Act
                                                                                                         or cost as an evaluation factor for the               contracting officer shall consider price
                                                   This proposed rule does not contain                   contract award (10 U.S.C. 2305(a)(3));                or cost as one of the factors in the
                                                 any information collection requirements                    (B) Whether or not cost or price is                selection decision for each order (see
                                                 that require the approval of the Office of              evaluated at contract award, the                      16.505);
                                                 Management and Budget under the                         contracting officer shall consider price                 (C) A qualifying offeror is an offeror
                                                 Paperwork Reduction Act (44 U.S.C.                      or cost as one of the factors in the                  that is determined to be a responsible
                                                 chapter 35).                                            selection decision for each order (see                source, submits a technically acceptable
                                                 List of Subjects in 48 CFR Parts 13, 15,                16.505);                                              proposal that conforms to the
                                                                                                            (C) A qualifying offeror is an offeror             requirements of the solicitation, and the
                                                 and 16
                                                                                                         that is determined to be a responsible                contracting officer has no reason to
                                                     Government procurement.                             source, submits a technically acceptable              believe would be likely to offer other
                                                   Dated: September 18, 2018.                            proposal that conforms to the                         than fair and reasonable pricing (10
                                                 William F. Clark,                                       requirements of the solicitation, and the             U.S.C. 2305(a)(3)); and
                                                 Director, Office of Government-wide                     contracting officer has no reason to                     (D) The exception in paragraph
                                                 Acquisition Policy, Office of Acquisition               believe would be likely to offer other                (c)(1)(ii)(A) of this section shall not
                                                 Policy, Office of Government-wide Policy.               than fair and reasonable pricing (10                  apply to solicitations for multiple-award
                                                                                                         U.S.C. 2305(a)(3)); and                               contracts that provide for sole source
                                                   Therefore, DoD, GSA, and NASA are                        (D) The exception at 13.106–
                                                 proposing to amend 48 CFR parts 13, 15,                                                                       orders pursuant to section 8(a) of the
                                                                                                         1(a)(2)(iv)(A) shall not apply to
                                                 and 16 as set forth below:                                                                                    Small Business Act (15 U.S.C. 637(a));
                                                                                                         solicitations for multiple-award
                                                 ■ 1. The authority citation for 48 CFR                  contracts that provide for sole source                *      *     *     *     *
                                                 parts 13, 15, and 16 continues to read                  orders pursuant to section 8(a) of the                   (e) Unless the exception at
                                                 as follows:                                             Small Business Act (15 U.S.C. 637(a)).                15.304(c)(1)(ii)(A) of this section
                                                   Authority: 40 U.S.C. 121(c); 10 U.S.C.                                                                      applies, the solicitation shall also state,
                                                 chapter 137; and 51 U.S.C. 20113.                       PART 15—CONTRACTING BY                                at a minimum, whether all evaluation
                                                                                                         NEGOTIATION                                           factors other than cost or price, when
                                                 PART 13—SIMPLIFIED ACQUISITION                                                                                combined, are—
                                                 PROCEDURES                                              ■ 3. Amend 15.304 by revising
                                                                                                         paragraph (c)(1) and paragraph (e)                    *      *     *     *     *
                                                 ■ 2. Amend 13.106–1 by revising                         introductory text to read as follows:                 PART 16—TYPES OF CONTRACTS
                                                 paragraph (a)(2) to read as follows:
                                                                                                         15.304 Evaluation factors and significant
                                                 13.106–1    Soliciting competition.                     subfactors.                                           ■ 4. Amend 16.505 by adding paragraph
                                                                                                                                                               (b)(2)(i)(G) to read as follows:
                                                   (a) * * *                                             *       *     *     *     *
                                                   (2)(i) When soliciting quotations or                     (c) * * *                                          16.505    Ordering.
                                                 offers, the contracting officer shall                      (1)(i) Price or cost to the Government             *     *     *    *     *
                                                 notify potential quoters or offerors of the             shall be evaluated in every source                      (b) * * *
                                                 basis on which award will be made                       selection (10 U.S.C. 2305(a)(3)(A)(ii) and
                                                                                                                                                                 (2) * * *
                                                 (price alone or price and other factors,                41 U.S.C. 3306(c)(1)(B)) (also see part 36
                                                                                                         for architect-engineer contracts), subject              (i) * * *
                                                 e.g., past performance and quality).
                                                   (ii) Contracting officers are                         to the exception listed in paragraph                    (G) For DoD, NASA, and the Coast
                                                 encouraged to use best value.                           (c)(1)(ii) of this section for use by DoD,            Guard, the order satisfies one of the
                                                   (iii) Solicitations are not required to               NASA, and the Coast Guard.                            exceptions permitting the use of other
                                                 state the relative importance assigned to                  (ii) For DoD, NASA, and the Coast                  than full and open competition listed in
                                                 each evaluation factor and subfactor,                   Guard—                                                6.302 (10 U.S.C. 2304c(b)(5)). The
                                                 nor are they required to include                           (A) When issuing a solicitation valued             public interest exception shall not be
                                                 subfactors.                                             above the simplified acquisition                      used unless Congress is notified in
                                                   (iv) For DoD, NASA, and the Coast                     threshold for a multiple-award contract               accordance with 10 U.S.C. 2304(c)(7).
                                                 Guard—                                                  for the same or similar services and the              *     *     *    *     *
                                                   (A) When issuing a solicitation valued                solicitation states that the Government               [FR Doc. 2018–20669 Filed 9–21–18; 8:45 am]
                                                 above the simplified acquisition                        intends to make an award to each and                  BILLING CODE 6820–EP–P
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Document Created: 2018-09-22 00:33:16
Document Modified: 2018-09-22 00:33:16
CategoryRegulatory Information
CollectionFederal Register
sudoc ClassAE 2.7:
GS 4.107:
AE 2.106:
PublisherOffice of the Federal Register, National Archives and Records Administration
SectionProposed Rules
ActionProposed rule.
DatesInterested parties should submit comments to the Regulatory
ContactFor 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 2017-010.''
FR Citation83 FR 48271 
RIN Number9000-AN54
CFR Citation48 CFR 13
48 CFR 15
48 CFR 16

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