Rule2023-16658
Federal Acquisition Regulation: Use of Acquisition 360 To Encourage Vendor Feedback
Primary source
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Published
August 8, 2023
Effective
September 22, 2023
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to encourage use of voluntary feedback mechanisms, where appropriate, to support continual improvement of the acquisition process.
Full Text
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<title>Federal Register, Volume 88 Issue 151 (Tuesday, August 8, 2023)</title>
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[Federal Register Volume 88, Number 151 (Tuesday, August 8, 2023)]
[Rules and Regulations]
[Pages 53748-53751]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-16658]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 12, 26, and 52
[FAC 2023-05, FAR Case 2017-014, Item I; Docket No. 2017-001, Sequence
No. 1]
RIN 9000-AN43
Federal Acquisition Regulation: Use of Acquisition 360 To
Encourage Vendor Feedback
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
[[Page 53749]]
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to encourage use of voluntary
feedback mechanisms, where appropriate, to support continual
improvement of the acquisition process.
DATES: Effective September 22, 2023.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207, or by email
at <a href="/cdn-cgi/l/email-protection#95cff0fbf4fcf1f4bbf1f0f9f2f4f1fad5f2e6f4bbf2fae3"><span class="__cf_email__" data-cfemail="5b013e353a323f3a753f3e373c3a3f341b3c283a753c342d">[email protected]</span></a>. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#bff8ecfeeddad8ecdadcffd8ccde91d8d0c9"><span class="__cf_email__" data-cfemail="35726674675052665056755246541b525a43">[email protected]</span></a>. Please cite FAC 2023-05, FAR Case
2017-014.
SUPPLEMENTARY INFORMATION:
I. Background
Understanding how contractors experience the Federal marketplace is
critical to the Government's ability to build and maintain a healthy,
diverse, and resilient supplier base that can help Federal agencies use
acquisition as a catalyst to address the needs of our Nation. While
many agencies periodically seek feedback from their contractors, there
are no Government-wide mechanisms for agencies to collect and consider
this information in a consistent and organized manner. This final rule
fills an important gap in Government-vendor communications by providing
a standardized tool for voluntary vendor feedback.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 85 FR 57177 on September 15, 2020, to encourage use of
voluntary feedback mechanisms, where appropriate, to support continual
improvement of the acquisition process. These mechanisms were largely
developed through pilot efforts conducted in accordance with the Office
of Federal Procurement Policy (OFPP) memorandum ``Acquisition 360--
Improving the Acquisition Process through Timely Feedback from External
and Internal Stakeholders.'' The memorandum established the Acquisition
360 Survey tool, a voluntary online survey to elicit industry feedback
on the preaward and debriefing processes in a consistent and
standardized manner.
An advance notice of proposed rulemaking (ANPR) was published at 83
FR 34820 on July 23, 2018, to obtain public input regarding matters
related to contractor feedback, the overall cost of compliance and any
specific regulatory requirements that are particularly burdensome. The
proposed Acquisition 360 Survey questions were also posted.
One respondent submitted comments on the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments is provided
as follows:
A. Summary of Significant Changes
There are no significant changes from the proposed rule. Minor
corrections were made at FAR 1.102-3(a)(3) to the citation referencing
performance standards, and to update a reference at FAR 26.206(a). The
new FAR provision at FAR 52.201-1 was added to the list of provisions
and clauses at FAR 12.301(e) to reflect the final rule's applicability
to commercial solicitations.
B. Analysis of Public Comments
1. Support for the Rule
Comment: The respondent commends OFPP and the Federal Acquisition
Regulatory Council for their initiative in advancing this rule, and
states that both the information and the initiative to promote
voluntary feedback has merit. The respondent also notes the Government
estimate of 10 minutes to complete the survey, and finds this to be a
worthy time investment to facilitate effective communication that could
prevent delays or errors due to miscommunication.
Response: The Councils appreciate the support for the rule.
2. True 360-Degree Rollout
Comment: The respondent suggests that ``Acquisition 360''
techniques would be most effective by implementing a ``true 360-degree
rollout, including adding questions that would identify both contract
type and non-bidders.''
Response: OFPP will consider the respondent's comment during
development of the final question set. The final question set will be
available for public comment as part of the Paperwork Reduction Act
common form information collection notice.
3. Acquisition 360 Should Be Made Mandatory
Comment: Rather than merely encouraging Contracting Officers to
insert the provision at FAR 52.201-1, more should be provided to ensure
the full accomplishment of the Acquisition 360 initiative and achieve
the objective to obtain actionable feedback on the acquisition process.
The respondent also recommends more direct language to encourage
participants' feedback.
Response: While actionable feedback is desired, it is equally
important that participants understand the survey is completely
voluntary and will not impact the outcome of a specific acquisition.
Adding language to further encourage survey use may confuse
participants or compel a response out of fear that not responding would
preclude the opportunity to participate in an acquisition.
4. Rule Does Not Accomplish the Goals of the 2015 OFPP Memorandum
i. Public Reporting
Comment: The effort outlined in the proposed rule falls short of
the goals outlined in the memorandum dated March 18, 2015, titled
``Improving the Acquisition Process through Timely Feedback from
External and Internal Stakeholders,'' by failing to publicly report
information acquired from such evaluations.
Response: The Councils and OFPP agree that publicly reporting
survey data would be beneficial; however, the open-comment fields
present the possibility of personal or private information being
disclosed, if entered voluntarily by a participant. Full transparency
is not feasible, as review and redaction of comments would be necessary
prior to publication to prevent the unintentional release of personal
or private information. The Councils and OFPP intend to publicize
efforts taken in response to the survey data so that all parties can
understand the impact and efforts undertaken as a result.
ii. Postaward Goals
Comment: The proposed rule does not meet the goals of Acquisition
360 by not including postaward experiences or acquisition outcomes in
the evaluation.
Response: The survey does include questions regarding the postaward
debriefing process. Additionally, the proposed revisions at 1.102-
3(a)(3) encourage agencies to seek feedback on ``targeted aspects of an
acquisition throughout its lifecycle''.
5. Use of Pilot Program Version of the Survey Questions
Comment: The respondent recommends reviving the original intent by
using the pilot program version of the survey questions in the
Acquisition 360 portal and adding three options: ``contractor'',
``program office'', and ``acquisition office'' to route survey
participants to the appropriate version of the survey.
[[Page 53750]]
Response: OFPP will consider the respondent's comment during
development of the final question set. The final question set will be
available for public comment as part of the Paperwork Reduction Act
common form information collection notice.
6. OMB Centralized Survey Portal
Comment: The respondent suggests that survey data be collected
through the Office of Management and Budget's (OMB) centralized survey
portal, which should facilitate greater data submission, access, and
analysis across the Government.
Response: The current iteration of the survey, though hyper-linked
at <a href="http://acquisition.gov/360">acquisition.gov/360</a> for ease, is hosted via the OMB MAX Survey tool
so that agencies can be granted access to data. Ease of access and the
ability of agencies to receive their response data will remain a
priority when and if the survey tool is moved to other platforms.
7. Anonymization of the Data
Comment: Respondent recommends language that allows the survey to
anonymously categorize the data for publication.
Response: Subject to the quality and reliability of the data, the
Councils and OFPP may perform certain analyses and develop statistics,
reports, or other items summarizing the results of the collection
activity and may make public aggregate information discussing efforts
taken in response to the survey data. Efforts will be made not to
disclose personal or private information related to any particular
survey participant.
8. Use of Other Mechanisms
Comment: Respondent recommends language to encourage the use of
other mechanisms where Government and industry may also provide input
through a freeform response on the OMB portal.
Response: The revisions at 1.102-3(a) encourage agencies to
``utilize a variety of feedback mechanisms available to the public
(e.g., surveys, in-person, and/or group exchanges)'' and seek feedback
on ``targeted aspects of an acquisition throughout its lifecycle.''
This may include freeform response. In addition, improving
communication between Government and industry partners is an ongoing
process and multi-dimensional effort that involves the coordination of
various elements and networks. Besides regulatory actions, agency
personnel such as the designated industry liaisons and acquisition
innovation advocates, continue to promote effective and meaningful
communication strategies. With the aid of a ``crowd-sourcing'' idea
management tool, OFPP will also solicit additional, targeted input to
gather more ideas on modernizing and improving communication during the
acquisition process. These efforts will continue in parallel with the
rollout of this rulemaking and the voluntary use of a standardized
feedback survey as part of broader efforts to improve Government-vendor
communication and strengthen the diversity and resiliency of the
Federal supplier base.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Products, Including Commercially
Available Off-the-Shelf (COTS) Items, or for Commercial Services
This rule adds a provision at FAR 52.201-1, Acquisition 360:
Voluntary Survey. The provision is not prescribed for any particular
procurement; agencies, in accordance with their procedures, may include
it in solicitations at or below the SAT and in solicitations for
commercial services and commercial products, including COTS items.
IV. Expected Impact of the Rule
This final rule amends the FAR to implement the Acquisition 360
Survey tool, a voluntary online survey to elicit industry feedback on
the preaward and debriefing processes in a consistent and standardized
manner. Contracting officers may insert the provision into
solicitations per agency guidance. However, because it is voluntary,
the impact on offerors or contractors is expected to be minimal.
V. Executive Orders 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.
VI. Congressional Review Act
The Congressional Review Act (5 U.S.C. 801-808) requires interim
and final rules to be submitted to Congress before the rule takes
effect. DoD, GSA, and NASA will send this rule to each House of the
Congress and to the Comptroller General of the United States. The
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget has determined that this is not a major rule
under 5 U.S.C. 804.
VII. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
This final rule amends the Federal Acquisition Regulation to
implement the voluntary use of the Acquisition 360 Survey to elicit
feedback on preaward and debriefing processes in a consistent and
standardized manner. The objective of the rule is to encourage
agency use of the Acquisition 360 Survey tool to obtain feedback
from offerors which may be used to improve their acquisition
processes.
No public comments were received in response to the initial
regulatory flexibility analysis.
Data generated from the Federal Procurement Data System (FPDS)
and the System for Award Management (SAM) have been used as the
basis for estimating the number of small entities affected by this
rule. Currently, there are approximately 331,899 small entities
registered in SAM that were small in at least one North American
Industry Classification Systems (NAICS) code. The rule, therefore,
will potentially impact all 331,899 small entities.
To estimate the likely number of small entities impacted by the
rule, we used the average of FPDS data for fiscal years 2020, 2021,
and 2022. Examination of the data reveals that the number of unique
small entities that received contract awards was 79,264. DoD, GSA,
and NASA estimate that each unique small entity would respond to
approximately 3 solicitations, equating to 237,791 potential offers.
It is anticipated that 33 percent of these potential offerors will
submit a response to the survey based upon the outcome of a previous
OFPP-conducted pilot. Based upon this data, it is anticipated that
78,471 small entities will likely be affected by the rule.
The final rule encourages potential offerors to provide feedback
at <a href="https://www.acquisition.gov/360">https://www.acquisition.gov/360</a> on agency acquisition processes.
There were other alternatives considered, to include the status
quo, for Government acquisition officials to elicit feedback from
their contractors, such as vendor outreach with industry days on the
agency's performance of its contract administration
responsibilities; however, these would not accomplish the stated
objective of the rule, nor would they minimize the economic impact
of the rule on small entities.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel
[[Page 53751]]
for Advocacy of the Small Business Administration.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. 3501-3521) applies. The rule
contains information collection requirements. OMB has cleared this
information collection requirement under OMB Control Number 9000-0204,
Acquisition 360 Voluntary Survey.
List of Subjects in 48 CFR Parts 1, 12, 26, and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 12, 26, and 52
as set forth below:
0
1. The authority citation for 48 CFR parts 1, 12, 26, and 52 continues
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.102-3 and 1.102-4 [Redesignated]
0
2. Redesignate sections 1.102-3 and 1.102-4 as sections 1.102-4 and
1.102-5.
0
3. Add new section 1.102-3 to read as follows:
1.102-3 Evaluating agency acquisition processes.
(a) Agencies are encouraged to develop internal procedures seeking
voluntary feedback from interested parties in an acquisition to assess
process strengths and weaknesses and improve effectiveness and
efficiency of the acquisition process. Agencies may--
(1) Utilize a variety of feedback mechanisms available to the
public (e.g., surveys, in-person, and/or group exchanges);
(2) Utilize the core preaward and debriefing survey questions at
<a href="https://www.acquisition.gov/360">https://www.acquisition.gov/360</a>; and
(3) Seek additional feedback on targeted aspects of an acquisition
throughout its lifecycle (e.g., performance standards at 1.102-2 or
postaward contract administration responsibilities at 42.302).
(b) Contracting officers are encouraged to insert the provision
52.201-1, Acquisition 360: Voluntary Survey, in accordance with agency
procedures.
(c) Contracting officers shall not review information until after
contract award and shall not consider it in the award decision.
0
4. In section 1.106, amend the table by adding an entry for ``52.201-
1'' in numerical order to read as follows:
1.106 OMB approval under the Paperwork Reduction Act.
* * * * *
------------------------------------------------------------------------
OMB control
FAR segment No.
------------------------------------------------------------------------
* * * * *
52.201-1............................................... 9000-0204
* * * * *
------------------------------------------------------------------------
1.108 [Amended]
0
5. Amend section 1.108 by removing from paragraph (b) ``1.102-4(b)''
and adding ``1.102-5(b)'' in its place.
PART 12--ACQUISITION OF COMMERCIAL PRODUCTS AND COMMERCIAL SERVICES
0
6. Amend section 12.301 by--
0
a. Redesignating paragraphs (e)(1) through (4) as paragraphs (e)(2)
through (5); and
0
b. Adding a new paragraph (e)(1).
The addition reads as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial products and commercial services.
* * * * *
(e) * * *
(1) The contracting officer may use the provision at 52.201-1,
Acquisition 360: Voluntary Survey, as prescribed in 1.102-3(b).
* * * * *
PART 26--OTHER SOCIOECONOMIC PROGRAMS
26.206 [Amended]
0
7. Amend section 26.206 by removing from paragraph (a) ``12.301(e)(4)''
and adding ``12.301(e)(5)'' in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
8. Add section 52.201-1 to read as follows:
52.201-1 Acquisition 360: Voluntary Survey.
As prescribed in 1.102-3(b), insert the following provision:
Acquisition 360: Voluntary Survey (Sep 2023)
(a) All actual and potential offerors are encouraged to provide
feedback on the preaward and debriefing processes, as applicable.
Feedback may be provided to agencies up to 45 days after award. The
feedback is anonymous, unless the participant self-identifies in the
survey. Actual and potential offerors can participate in the survey by
selecting the following link: <a href="https://www.acquisition.gov/360">https://www.acquisition.gov/360</a>.
(b) The Contracting Officer will not review the information
provided until after contract award and will not consider it in the
award decision. The survey is voluntary and does not convey any
protections, rights, or grounds for protest. It creates a way for
actual and potential offerors to provide the Government constructive
feedback about the preaward and debriefing processes, as applicable,
used for a specific acquisition.
(End of provision)
[FR Doc. 2023-16658 Filed 8-7-23; 8:45 am]
BILLING CODE 6820-EP-P
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