Comments on the FAR Revisions

THE DAILY FED

Comments on the FAR Revisions

The comment period for proposed revisions to Part 15 of the Federal Acquisition Regulation draws to a close on November 26th. The BNA Daily Report for Executives has compiled a list of several trends in the comments that are being collected. Some of the highlights are:

• There is wide support for the provisions allowing greater communication between the government and suppliers, but "commenters are concerned that a freer dialog can lead to technical transfusion or technical leveling." Commenters suggest that the rules specify more carefully what may and may not be discussed.
  
  
• Problematic areas of the proposal also include:
  • multiphase procurements
    
  • inclusion of the lowest technically acceptable process in the "best value" heading
    
  • the determination of the competitive range
    
  • evaluation of contractors' past performance
  
  
• According to an interview that BNA conducted with Steven Kelman, Office of Federal Procurement Policy Administrator, there are three areas of the rewritten rules proposal that will need further attention before rules are finalized:
  • what communication boundaries should be enforced with companies making offers prior to deciding on the competitive range
    
  • competitive range limiting factors
    
  • deciding if pre-award de-briefings should be allowed

  BNA also reports the highlights of written comments provided by several groups on the proposed rules. Some of the groups' comments include:

  TASC:

  Praised the proposed changes for increasing communications and reducing "much of the current waste of effort... that the current system requires in a failed attempt to mechanize a process which is inherently a judgemental one."

  
  

  American Bar Association Section of Public Contract Law:

  In a discussion of their draft comments at a meeting on November 16th, the ABA Section decided to make clear that they support the principles behind the rule changes, but have questions concerning their legality. They are concerned about whether the "effective competition" basis for limiting the competitive range conflicts with statutory requirements for open and full competition.

  The ABA Section also believes that oral presentations should not substitute for written presentations, and that several aspects of the evaluation of past performance need attention.

  
  

  Small Business Administration Office of Advocacy:

  Jim O'Connor, policy advocate for procurement, believes that the proposed rule would "significantly alter what is meant by 'full and open' competition", thereby "adversely affect[ing] many small firms."

  Mr. O'Connor had several improvement suggestions, including a definition of "effective competition", removal of the "resources available" factor, and disclosure of the factors for limiting competition. He also recommended written tracking of all discussions with offering companies, and a statement affirming the resolve of the government to use small firms in government procurement.

  
  

  Professional Services Council:

  PSC President Bert Concklin expressed strong support for the suggested changes, but suggested revising the language to better explain the best value trade-off process, and lower the chances of multiple proposal revisions.

  
  

  Information Technology Association of America

  ITAA supports limiting the competitive range. They also support limiting presolicitation exchanges of information with industry.

  ITAA has concerns about the multiphase process and the provision allowing contracting officers to accept late proposals. They believe that the multiphase process will allow agencies to down-select far more easily than former methods and that accepting late proposals will lead to disputes.

  
  

  Contract Services Association of American

  CSA supports greater communication. However, it is worried about efficiency getting to the point where it takes "precedence over fairness." CSA is also worried about the multiphase aspects of the rules rewrite.
  

  Senate Concerns:

  Senate concerns include:

  • Possible inconsistencies between the part 15 rewrite and the Federal Acquisition Streamlining Act, FARA, or CICA. Examples include the multiphase process (inconsistent with FASA) and the estimation of competitive range prior to solicitation (inconsistent with FARA).
    
  • Other concerns include the proposed rules allowing previously unallowed conversations and "unequal conversations" with different contractors; and wording changes that will result in a spate of protests and legal cases.
  
  

  BNA reports that based on the extensive revisions necessary, Phase II of the Part 15 rewrite (pricing issues) is unlikely to be available for comment until early 1997.