Amendments Would Expand Contractor Post-Award Debriefing Rights and Limit the Applicability of Certain Laws in Commercial Item Acquisitions

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council have recently proposed for public comment an amendment to the Federal Acquisition Regulation (“FAR”) that would require federal government agencies to disclose additional information to unsuccessful offerors during post-award debriefings.  In addition, the Federal Acquisition Regulatory Council announced on January 30, 2003 its intention to solicit comments on a proposed FAR amendment that would expand the list of laws and regulations that are inapplicable to commercial item acquisitions.

Contractor Debriefing Rights

The Federal Acquisition Streamlining Act of 1994, in combination with Section 15 of the FAR, requires federal government agencies to provide information to unsuccessful offerors that request post-award debriefings following a competitive acquisition. Certain of these disclosure requirements are currently set forth at FAR 52.215-1, "Instructions to Offerors--Competitive Acquisitions." However, information regarding post-award debriefings was omitted from FAR 52.212-1, "Instructions to Offerors-Commercial Items." The proposed amendment will expand the nature of the information that federal agencies are required to provide to offerors, pursuant to FAR 52.215-1, during post-award debriefings and will clarify that such requirements are also applicable in commercial item acquisitions.

Pursuant to the proposed amendment, agencies will be required to disclose the following information to unsuccessful offerors that request a post-award debriefing in competitive solicitations, for both commercial and non-commercial items:

• the agency's evaluation of the significant weak or deficient factors in the debriefed offeror's offer;
  
  
• the overall evaluated cost or price and technical rating of the successful and the debriefed offeror and past performance information on the debriefed offeror;
  
  
• the overall ranking of all offerors, when any ranking was developed by the agency during source selection;
  
  
• a summary of the rationale for award;
  
  
• the make and model of the item to be delivered by the successful offeror; and
  
  
• reasonable responses to relevant questions posed by the debriefed offeror as to whether source-selection procedures set forth in the solicitation, applicable regulations, and other applicable authorities were followed by the agency.

Comments on the proposed amendment are required to be received by April 7, 2003.  The full text of the proposed amendment is published in the Federal Register, February 4, 2003 (Fed. Reg. 5777-5779).

Inapplicability of Certain Laws and Regulations to Commercial Item Acquisitions

The Federal Acquisitions Reform Act provides that laws and regulations normally applicable to contracts with the federal government may be inapplicable when the federal government acquires commercial items.  FAR 12.503 currently sets forth several provisions of law already determined to be inapplicable in such a context, including the Drug-Free Workplace Act of 1988 and laws prohibiting the payment of contingent fees.  The proposed amendment would amend FAR 12.503 to provide that the following laws and regulations are also inapplicable to commercial item acquisitions:

• 5 U.S.C. §552a, Privacy Act (see FAR 52.239-1);
  
  
• 29 U.S.C. §793, Affirmative Action for Handicapped Workers (see FAR 52.222-36);
  
  
• 31 U.S.C. §529, Restriction on Advance Payments;
  
  
• 38 U.S.C. §4212, Affirmative Action for Special Disabled Vietnam Era Veterans (see FAR 52.222-35);
  
  
• 38 U.S.C. §4212(d)(1), Employment Reports on Special Disabled Veterans and Veterans of the Vietnam Era (see FAR 52.222-37);
  
  
• 41 U.S.C. §10, Buy American Act--Supplies (see FAR 52.225-1 and 52.225-3);
  
  
• 41 U.S.C. §253d, Validation of Proprietary Data Restrictions;
  
  
• 41 U.S.C. §253g and 10 U.S.C. §2482, Prohibition on Limiting Subcontractor Direct Sales to the United States (see FAR 52.203-6);
  
  
• 41 U.S.C. §254d(c) and 10 U.S.C. §2513(c), Examination of Records of Contractor (see FAR 52.215-2);
  
  
• 41 U.S.C. §418a, Rights in Technical Data;
  
  
• 41 U.S.C. §442, Cost Accounting Standards;
  
  
• 41 U.S.C. §423(e)(3), Administrative Actions;
  
  
• 46 U.S.C. §1241(b), Transportation in American Vessels of Government Personnel and Certain Cargo (see FAR 52.247-64); and
  
  
• 42 U.S.C. §6962(c)(3)(A)(ii), Estimate of Percentage of Recovered Material Content for EPA-Designated Products (see FAR 52.223-9).

Comments on the proposed amendment are required to be received by March 31, 2003.  The full text of the proposed amendment is published in the Federal Register, January 30, 2003 (68 Fed. Reg. 4873-4874).

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Gibson, Dunn & Crutcher lawyers are available to assist clients in addressing any questions they may have regarding these issues.  Please contact the government contracts lawyer with whom you work if you have questions.

The enclosed materials have been prepared for general information purposes only and are not intended as legal advice.

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