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FAR RIN: 9000-AL82 Publication ID: Spring 2021 
Title: Federal Acquisition Regulation (FAR); FAR Case 2011-001; Organizational Conflicts of Interest and Unequal Access to Information 
Abstract:

DoD, GSA, and NASA are withdrawing the proposed rule to amend the Federal Acquisition Regulation (FAR) titled: Organizational Conflicts of Interest. The decision not to proceed with a final rule has been made given the amount of time that has passed since publication of the proposed rule. Accordingly, this proposed rule is withdrawn and the FAR case is closed. Consideration of any future amendments to the FAR related to organizational conflicts of interest or unequal access to nonpublic information will be accomplished under a new FAR case.

DoD, GSA and NASA issued a proposed rule on April 26, 2011 to amend the FAR to include guidance that will help the Government identify and address circumstances in which a Government contractor has an organizational conflict of interest. This rule will also provide safeguards to protect against unequal access to information, which harms the competitive acquisition process.

 
Agency: DOD/GSA/NASA (FAR)(FAR)  Priority: Other Significant 
RIN Status: Previously published in the Unified Agenda Agenda Stage of Rulemaking: Completed Actions 
Major: No  Unfunded Mandates: No 
CFR Citation: 48 CFR 1 to 4    48 CFR 7 to 9    48 CFR 11 to 13    48 CFR 15 to 16    48 CFR 18    48 CFR 37    48 CFR 42    48 CFR 50    48 CFR 52 to 53   
Legal Authority: 40 U.S.C. 121(c)    10 U.S.C. ch 137    51 U.S.C. 20113   
Legal Deadline:  None
Timetable:
Action Date FR Cite
NPRM  04/26/2011  76 FR 23236   
NPRM Comment Period End  06/27/2011    
NPRM Comment Period Extended  06/29/2011  76 FR 38089   
NPRM Comment Period Extended End  07/27/2011 
Withdrawn  03/19/2021  86 FR 14863   
Additional Information: STATEMENT OF NEED: The FAR provides "uniform policies and procedures" for acquisitions. This FAR rule is necessary to ensure uniform implementation of this change across government contracts. This will avoid the proliferation of agency actions (e.g. revisions to FAR supplements or issuance of policy guidance) to implement this requirement. SUMMARY OF LEGAL BASIS: This rule implements section 841 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110-417). ALTERNATIVES: DoD, GSA, and NASA considered agency OCI guidance and public comments when considering alternatives to the rule. In the formulation of the final rule, no alternatives were identified that would reduce impact on large and small business and still accomplish the objectives of the statute. ANTICIPATED COSTS AND BENEFITS: This rule is expected to impose burden on large and small businesses. The circumstances that lead to OCIs are most likely to occur in large businesses that have diverse capacity to provide both upfront advice and also a capacity for production. Although a small business might become involved in OCIs through its affiliates, we estimate that this rule on OCIs would not impact a significant number of small entities. Furthermore, this rule is not adding burdens relating to OCIs that are beyond the current expectations of FAR subpart 9.5. It is just providing standard procedures and clauses, rather than requiring each contracting officer to craft unique provisions and clauses appropriate to the situation. With regard to unequal access to information, the rule will apply to all solicitations that exceed the simplified acquisition threshold, but will only impact entities that have unequal access to competitively useful information in performance of a Government contract. Small entities that are submitting offers to the Government must inform the Government, prior to submission of an offer, if they possess any information that could provide an unfair competitive advantage as described in FAR 4.402-2. The anticipated cost is $46,855,500 for both small and large businesses. Government agencies are benefiting from this rule as it will help them identify and address and possibly avoid issues or situations that may be an OCI or have the potential to give rise to an OCI. RISKS: If this rule is not issued, industry and Federal Government agencies will not have access to uniform and robust guidance to assist contracting officers in the task of identifying, and distinguishing between, the risks of harm associated with particular OCIs necessary to address both OCIs and unequal access to information.
Regulatory Flexibility Analysis Required: Yes  Government Levels Affected: Federal 
Small Entities Affected: Businesses, Organizations  Federalism: No 
Included in the Regulatory Plan: No 
RIN Information URL: www.regulations.gov   Public Comment URL: www.regulations.gov  
RIN Data Printed in the FR: Yes 
Agency Contact:
Mahruba Uddowla
Procurement Analyst
DOD/GSA/NASA (FAR)
1800 F Street NW,
Washington, DC 20405
Phone:703 605-2868
Email: mahruba.uddowla@gsa.gov