5.  Waiver

Comment: One respondent criticized the waiver provision for being "unlimited" and imposing "no restrictions or guidance on when or how the head of the contracting activity should exercise this authority.  According to this respondent, if there are no reasonable restrictions on granting of waivers, then it is unlikely that DoD's practice will change.

Response: The requirement to resolicit for an additional 30 days may be waived by the head of the contracting activity (HCA). The intent of including this waiver provision is to maintain flexibility and allow the HCA to exercise the authority of the position. Typically, this position is filled by a senior acquisition professional who has demonstrated sound business judgment and acumen. DoD relies on those in charge to exercise good judgment in the execution of their duties. This waiver authority cannot be delegated below one level above the contracting officer. DoD has not seen evidence of abuse of this waiver authority.

Comment: One respondent recommended that the rule should allow requesting a waiver of the requirement to resolicit for an additional 30 days if the contracting officer has determined fair and reasonable prices through price or cost analysis or negotiations with the offeror, and the waiver has been approved by the PARC (Principal Assistant Responsible for Contracting).

Response: The purpose of the 30-day resolicitation requirement is to promote effective competition. Determination that the offered price is fair and reasonable may provide supporting rationale for granting a waiver, but does not by itself constitute sufficient grounds to grant a waiver. More important reasons for granting a waiver would be urgency of the requirement or market research that indicates that an additional 30 days is unlikely to result in additional offers.

The final rule continues to allow the waiver authority to be delegated to one level above the contracting officer (which would include the PARC). An approval one level above the contracting officer ensures a layer of review and provides a mechanism for checks and balances. Waiver of the 30-day resolicitation period does not relieve the contracting officer of the need to determine the price fair and reasonable.