General Services Administration
FAR Secretariat (VRS)
18th & F Streets, N.W.
Room 4037
Washington, DC 20405
Subject: Federal Acquisition Regulation; Competitive Range [FAR Case 95-008]
Dear FAR Secretariat:
This concerns a proposed rule published in the Federal Register on November 6, 1995, entitled "Federal Acquisition Regulation; Competitive Range." It is a rule intended to give contracting officers greater flexibility in limiting the number of offerors that qualify in the "competitive range."
The Office of Advocacy was established by Congress to ensure that Federal agencies consider the impact of their rules and policies on small business. In this capacity Congress also gave us the responsibility to monitor agency compliance with the Regulatory Flexibility Act (RFA) and to report deficiencies to the Congress.
In accordance with this responsibility, the Office of Advocacy finds the subject rulemaking, FAR Case 95-008, to be deficient in satisfying the requirements of the Regulatory Flexibility Act.
The proposed rule would give contracting officers significant latitude in excluding offerors from the competitive range, if any doubts of an offeror's competitiveness are raised. The current rule specifically gives offerors the "benefit of the doubt" by including the statement, "When there is a doubt as to whether a proposal is in the competitive range, the proposal should be included." The Office of Advocacy and the small business community are concerned that by striking this statement many small firms will be prematurely and unnecessarily excluded from the procurement process.
The Office of Advocacy believes this rulemaking will have a significant impact on a large number of small entities and an initial regulatory flexibility analysis (IRFA) should have been completed. A proper analysis would measure the rule's impact on small businesses and consider alternatives which would accomplish the objectives of the rule, but minimize the impact on small firms.
The Office of Advocacy urges the FAR Council to consider re- soliciting comments after preparing a proper initial regulatory flexibility analysis and publishing it with an amended notice of proposed rulemaking.
Sincerely,
Jere W. Glover
Chief Counsel
Office of Advocacy