Federal Acquisition Regulation; OMB Circular A-76, 43107-43109 [05-14569]
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Federal Register / Vol. 70, No. 142 / Tuesday, July 26, 2005 / Proposed Rules
Response, Compensation, and Liability
Act (CERCLA) of 1980, as amended, is
found in appendix B of 40 CFR part 300
of the National Oil and Hazardous
Substances Pollution Contingency Plan
(NCP). The EPA and the state of Iowa
through the Iowa Department of Natural
Resources (IDNR) have determined that
all appropriate response actions under
CERCLA have been completed.
However, this deletion does not
preclude future actions under
Superfund.
In the ‘‘Rules and Regulations’’
section of today’s Federal Register, we
are publishing a direct final notice of
deletion of the Red Oak City Landfill
Superfund site without prior notice of
intent to delete because we view this as
a noncontroversial revision and
anticipate no adverse comment. We
have explained our reasons for this
deletion in the preamble to the direct
final deletion. If we receive no adverse
comment(s) on the direct final notice of
deletion, we will not take further action
on this notice of intent to delete. If we
receive adverse comment(s), we will
withdraw the direct final notice of
deletion and it will not take effect. We
will, as appropriate, address all public
comments in a subsequent final deletion
notice based on this notice of intent to
delete. We will not institute a second
comment period on this action. Any
parties interested in commenting must
do so at this time. For additional
information, see the direct final notice
of deletion which is located in the Rules
section of this Federal Register.
DATES: Comments concerning this site
must be received by August 25, 2005.
ADDRESSES: Written comments should
be addressed to Bob Stewart, Remedial
Project Manager, Superfund Division,
U.S. Environmental Protection Agency,
Region VII, 901 North 5th Street, Kansas
City, KS 66101.
FOR FURTHER INFORMATION CONTACT: Bob
Stewart, Remedial Project Manager, U.S.
EPA, Region VII, Superfund Division,
Iowa/Nebraska Remedial Branch, 901
North 5th Street, Kansas City, KS 66101,
fax (913) 551–9654, or 1–800–223–0425.
SUPPLEMENTARY INFORMATION: For
additional information, see the Direct
Final Notice of Deletion which is
located in the Rules section of this
Federal Register.
Information Repositories: Information
concerning this deletion decision can be
found in the Deletion Docket at the
information repositories at the following
locations: U.S. EPA, Region VII,
Superfund Division Records Center, 901
North 5th Street, Kansas City, KS 66101
and at the IDNR, Henry A. Wallace
VerDate jul<14>2003
23:06 Jul 25, 2005
Jkt 205001
Building, 900 East Grand, Des Moines,
IA 50319.
List of Subjects in 40 CFR Part 300
Environmental protection, Air
pollution control, Chemicals, Hazardous
substances, Hazardous waste,
Intergovernmental relations, Penalties,
Reporting and recordkeeping
requirements, Superfund, Water
pollution control, Water supply.
Authority: 33 U.S.C. 1321(c)(2); 42 U.S.C.
9601–9657; E.O. 12777, 56 FR 54757, 3 CFR,
1991 Comp., p. 351; E.O. 12580, 52 FR 2923;
3 CFR, 1987 Comp., p. 193.
Dated: July 5, 2005.
James B. Gulliford,
Regional Administrator, Region VII.
[FR Doc. 05–14609 Filed 7–25–05; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 2, 5, 7, 14, 37, and 52
[FAR Case 2004–021]
RIN 9000–AK25
Federal Acquisition Regulation; OMB
Circular A–76
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to
provide language that is consistent with
OMB Circular A–76 (Revised),
Performance of Commercial Activities,
dated May 29, 2003.
DATES: Interested parties should submit
comments in writing on or before
September 26, 2005 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by FAR case 2004–021 by any
of the following methods:
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Agency Web Site: https://
www.acqnet.gov/far/ProposedRules/
proposed.htm. Click on the FAR case
number to submit comments.
Frm 00030
Fmt 4702
Sfmt 4702
• E-mail: farcase.2004–021@gsa.gov.
Include FAR case 2004–021 in the
subject line of the message.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VIR), 1800 F Street, NW, Room 4035,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAR case 2004–021 in all
correspondence related to this case. All
comments received will be posted
without change to https://
www.acqnet.gov/far/ProposedRules/
proposed.htm, including any personal
information provided.
FOR FURTHER INFORMATION CONTACT: The
FAR Secretariat at (202) 501–4755 for
information pertaining to status or
publication schedules. For clarification
of content, contact Mr. Gerald Zaffos,
Procurement Analyst, at (202) 208–
6091. Please cite FAR case 2004–021.
SUPPLEMENTARY INFORMATION:
A. Background
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
PO 00000
43107
OMB Circular A–76 (Revised),
Performance of Commercial Activities,
was issued in May 2003. The language
at FAR Subpart 7.3, and elsewhere,
reflects the policies contained in the
previous version of the Circular and in
Office of Federal Procurement Policy
(OFPP) Policy Letter 92–1, Inherently
Governmental Functions, which was
superseded by the revised Circular.
To implement the policies of the
revised Circular, the Councils propose
to delete the language at FAR Subpart
7.3 and replace it with clear and concise
information that does not duplicate the
Circular. Accordingly, the following
changes are proposed:
• Delete the reference to a list of
commercial activities contained in an
attachment to the previous Circular A–
76 in the definition of inherently
governmental functions at FAR 2.101.
• Revise FAR 5.205(e) to reflect the
procedure contracting officers must
follow when issuing public
announcements of public-private
competitions through the Government
Point of Entry.
• Replace the reference to OFPP
Policy Letter 91–2 in FAR 7.105(b)(9)
with a reference to Subpart 7.5.
• Delete the title and contents of FAR
7.300 and reserve the section for future
use.
• Rename FAR 7.301 as Definitions,
and state that the terms used in the
subpart are defined by the Circular.
• Rename FAR 7.302 and concisely
set forth the general policy purposes of
the Circular. Consistent with section
326 of the Ronald W. Reagan National
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43108
Federal Register / Vol. 70, No. 142 / Tuesday, July 26, 2005 / Proposed Rules
Defense Authorization Act for Fiscal
Year 2005 (Pub. L. 108–375),
specifically naming the Agency Tender
Official as an interested party for
purposes of filing a protest with the
Government Accountability Office
(GAO) under FAR 33.103. GAO
published a final rule to amend its Bid
Protest Regulations on April 14, 2005
(70 FR 19680).
• Add a statement at FAR 7.302(c)
precluding the use of discussions to
permit correction of deficiencies in
sealed bids in public-private
competitions. During the development
of the rule, some members of the
Councils questioned whether the
‘‘special considerations’’ language
addressing the source selection process
in Attachment B of Circular A–76 was
intended to permit discussions to
correct deficiencies under sealed
bidding. Officials from the Office of
Federal Procurement Policy (OFPP)
advised the Councils that the Circular
should not be read to permit discussions
in sealed bidding. Rather, sealed
bidding under A–76 is to be conducted
consistent with FAR Part 14, as stated
in paragraph D.5.a of Attachment B of
Circular A–76. OFPP further clarified
that the Circular’s special
considerations coverage on deficiencies
was directed at negotiated source
selection procedures, where the FAR
provides for exchanges under FAR
15.306. To avoid confusion on this
point, the Councils, with OFPP
concurrence, propose to add a statement
at FAR 7.302(c) to make clear that
contracting officers shall not hold
discussions to correct deficiencies when
using sealed bidding in public-private
competitions under OMB Circular A–76.
This will ensure that the Circular and
the FAR are applied in a consistent
manner.
• Delete the contents of FAR 7.303,
7.304, 7.306, and 7.307 and reserve FAR
7.303 and 7.304 for future use.
• Revise the language in FAR 7.305 to
reflect the terminology used in the
Circular.
• Amend FAR 7.500 to delete the
reference to OFPP Policy Letter 92–1.
• Delete FAR 14.203–2(b) so that
information dissemination requirements
are consistent with the revised Circular.
• Revise FAR 37.503(c) to delete the
reference to OFPP Policy Letter 92–1
and replace it with language stating that
agency heads, before contracting for
services, must ensure that specific
policies are in place to ensure that
inherently governmental functions are
performed by Government personnel.
• Rename and revise the provision at
52.207–1 to reflect the current
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23:06 Jul 25, 2005
Jkt 205001
procedures that are to be followed in a
standard public-private competition.
• Rename and revise the provision at
52.207–2 to reflect the current
procedures that are to be followed in a
streamlined public-private competition.
• Amend the clause at 52.207–3,
Right of First Refusal of Employment, to
cover the group of people directly
affected by public-private competitions
under new definitions in the Circular.
The Circular uses the term ‘‘Government
personnel’’ instead of the more narrow
‘‘Government employees.’’ The clause
will be consistent with the Circular.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Councils do not expect this
proposed rule to have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because the
rule does not impose any costs on either
small or large businesses. An Initial
Regulatory Flexibility Analysis has,
therefore, not been performed. We invite
comments from small businesses and
other interested parties. The Councils
will consider comments from small
entities concerning the affected FAR
Parts 2, 5, 7, 14, 37, and 52 in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 601,
et seq. (FAR case 2004–021), in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the proposed changes
to the FAR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. 3501, et
seq.
List of Subjects in 48 CFR Parts 2, 5, 7,
14, 37, and 52
Government procurement.
Dated: July 18, 2005.
Julia B. Wise,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 2, 5, 7,
14, 37, and 52 as set forth below:
1. The authority citation for 48 CFR
parts 2, 5, 7, 14, 37, and 52 is revised
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
PO 00000
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Fmt 4702
Sfmt 4702
PART 2—DEFINITIONS OF WORDS
AND TERMS
2.101
[Amended]
2. Amend section 2.101 in paragraph
(b), in the definition ‘‘Inherently
governmental function’’, by removing
the last sentence in paragraph (2).
PART 5—PUBLICIZING CONTRACT
ACTIONS
3. Amend section 5.205 by revising
paragraph (e) to read as follows:
5.205
Special situations.
*
*
*
*
*
(e) Public-private competitions under
OMB Circular A–76. (1) The contracting
officer shall make a formal public
announcement for each streamlined or
standard competition. The public
announcement shall include, at a
minimum, the agency, agency
component, location, type of
competition (streamlined or standard),
activity being competed, incumbent
service providers, number of
Government personnel performing the
activity, name of the Competitive
Sourcing Official, name of the
contracting officer, name of the Agency
Tender Official, and projected end date
of the competition.
(2) The contracting officer shall
announce the end of the streamlined or
standard competition by making a
formal public announcement of the
performance decision. (See OMB
Circular A–76.)
*
*
*
*
*
PART 7—ACQUISITION PLANNING
4. Amend section 7.105 by revising
paragraph (b)(9) to read as follows:
7.105 Contents of written acquisition
plans.
*
*
*
*
*
(b) * * *
(9) Inherently governmental functions.
Address the consideration given to
Subpart 7.5.
*
*
*
*
*
5. Revise Subpart 7.3 to read as
follows:
Subpart 7.3—Contractor Versus
Government Performance
Sec.
7.300 [Reserved]
7.301 Definitions.
7.302 Policy.
7.303 [Reserved]
7.304 [Reserved]
7.305 Solicitation provisions and contract
clause.
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Federal Register / Vol. 70, No. 142 / Tuesday, July 26, 2005 / Proposed Rules
7.300
[Reserved]
7.301
Definitions.
Definitions of ‘‘inherently
governmental activity’’ and other terms
applicable to this subpart are set forth
at Attachment D of the Office of
Management and Budget Circular No.
A–76 (Revised), Performance of
Commercial Activities, dated May 29,
2003 (the Circular).
7.302
(a) The Circular provides that it is the
policy of the Government to—
(1) Perform inherently governmental
activities with Government personnel;
and
(2) Subject commercial activities to
the forces of competition.
(b) As provided in the Circular,
agencies shall—
(1) Not use contractors to perform
inherently governmental activities;
(2) Conduct public-private
competitions in accordance with the
provisions of the Circular and, as
applicable, these regulations;
(3) Give appropriate consideration
relative to cost when making
performance decisions between agency
and contractor performance in publicprivate competitions;
(4) Consider the Agency Tender
Official an interested party in
accordance with 31 U.S.C. 3551 to 3553
for purposes of filing a protest at the
Government Accountability Office; and
(5) Hear contests in accordance with
OMB Circular A–76, Attachment B,
paragraph F.
(c) When using sealed bidding in
public-private competitions under OMB
Circular A–76, contracting officers shall
not hold discussions to correct
deficiencies.
[Reserved]
7.304
[Reserved]
7.305 Solicitation provisions and contract
clause.
(a) The contracting officer shall, when
soliciting offers and tenders, insert in
solicitations issued for standard
competitions the provision at 52.207–1,
Notice of Standard Competition.
(b) The contracting officer shall, when
soliciting offers, insert in solicitations
issued for streamlined competitions the
provision at 52.207–2, Notice of
Streamlined Competition.
(c) The contracting officer shall insert
the clause at 52.207–3, Right of First
Refusal of Employment, in all
solicitations which may result in a
conversion from in-house performance
to contract performance of work
currently being performed by the
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23:06 Jul 25, 2005
7.500
[Amended]
6. Amend section 7.500 by removing
the last sentence.
Jkt 205001
standard competition form, the agency
tender, and public reimbursable tenders.
(End of provision)
10. Revise section 52.207–2 to read as
follows:
52.207–2 Notice of Streamlined
Competition.
As prescribed in 7.305(b), insert the
following provision:
9. Revise the section heading and text
of section 52.207–1 to read as follows:
NOTICE OF STREAMLINED COMPETITION
(DATE)
(a) This solicitation is part of a streamlined
competition under Office of Management and
Budget Circular No. A–76 (Revised),
Performance of Commercial Activities, dated
May 29, 2003 (hereafter ‘‘the Circular’’), to
determine whether to accomplish the
specified work under contract or by
Government performance.
(b) The Government will evaluate the cost
of private sector and Agency or public
reimbursable performance, as provided in
this solicitation and the Circular.
(c) A performance decision resulting from
this streamlined competition will be publicly
announced in accordance with the Circular.
If the performance decision favors private
sector performance, the Contracting Officer
shall either award a contract or issue a
competitive solicitation for private sector
offers. If the performance decision favors
Agency or public reimbursable performance,
the Agency shall establish, respectively,
either a letter of obligation or a fee-for-service
agreement, as those terms are defined in the
Circular.
(End of provision)
52.207–1
52.207–3
PART 14—SEALED BIDDING
Policy.
7.303
Government and in contracts that result
from the solicitations, whether or not a
public-private competition is
conducted. The 10-day period in the
clause may be varied by the contracting
officer up to a period of 90 days.
43109
14.203–2
[Amended]
7. Amend section 14.203–2 by
removing the paragraph designation
‘‘(a)’’ and by removing paragraph (b).
PART 37—SERVICE CONTRACTING
8. Amend section 37.503 by revising
paragraph (c) to read as follows:
37.503
Agency-head responsibilities.
*
*
*
*
*
(c) Specific procedures are in place
before contracting for services to ensure
that inherently governmental functions
are performed by Government
personnel; and
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
Notice of Standard Competition.
As prescribed in 7.305(a), insert the
following provision:
NOTICE OF STANDARD COMPETITION
(DATE)
(a) This solicitation is part of a standard
competition under Office of Management and
Budget Circular No. A–76 (Revised),
Performance of Commercial Activities, dated
May 29, 2003 (hereafter ‘‘the Circular’’), to
determine whether to accomplish the
specified work under contract or by
Government performance.
(b) The Government will evaluate private
sector offers, the agency tender, and public
reimbursable tenders, as provided in this
solicitation and the Circular.
(c) A performance decision resulting from
this standard competition will be publicly
announced in accordance with the Circular.
If the performance decision favors a private
sector offeror, a contract will be awarded. If
the performance decision favors an agency or
a public reimbursable tender, the Contracting
Officer shall establish, respectively, either a
Most Efficient Organization letter of
obligation or a fee-for-service agreement, as
those terms are defined in the Circular.
(d) As provided in the Circular, directly
interested parties may file contests, which
are governed by the procedures in FAR
33.103. Until resolution of any contest, or the
expiration of the time for filing a contest,
only legal agents for directly interested
parties shall have access to the certified
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[Amended]
11. Amend section 52.207–3 by
revising the date of the clause to read
‘‘(DATE)’’; and by removing from
paragraphs (a) and (b) of the clause the
word ‘‘employees’’ and adding
‘‘personnel’’ in its place.
[FR Doc. 05–14569 Filed 7–25–05; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
48 CFR Parts 247 and 252
[DFARS Case 2003–D028]
Defense Federal Acquisition
Regulation Supplement;
Transportation
Department of Defense (DoD).
Proposed rule with request for
comments.
AGENCY:
ACTION:
SUMMARY: DoD is proposing to amend
the Defense Federal Acquisition
Regulation Supplement (DFARS) to
update text on transportation matters
relating to DoD contracts. This proposed
rule is a result of a transformation
initiative undertaken by DoD to
dramatically change the purpose and
content of the DFARS.
E:\FR\FM\26JYP1.SGM
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]]>Agencies
[Federal Register Volume 70, Number 142 (Tuesday, July 26, 2005)]
[Proposed Rules]
[Pages 43107-43109]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 05-14569]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 5, 7, 14, 37, and 52
[FAR Case 2004-021]
RIN 9000-AK25
Federal Acquisition Regulation; OMB Circular A-76
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to provide language that is
consistent with OMB Circular A-76 (Revised), Performance of Commercial
Activities, dated May 29, 2003.
DATES: Interested parties should submit comments in writing on or
before September 26, 2005 to be considered in the formulation of a
final rule.
ADDRESSES: Submit comments identified by FAR case 2004-021 by any of
the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
Follow the instructions for submitting comments.
Agency Web Site: https://www.acqnet.gov/far/ProposedRules/
proposed.htm. Click on the FAR case number to submit comments.
E-mail: farcase.2004-021@gsa.gov. Include FAR case 2004-
021 in the subject line of the message.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2004-
021 in all correspondence related to this case. All comments received
will be posted without change to https://www.acqnet.gov/far/
ProposedRules/proposed.htm, including any personal information
provided.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Mr. Gerald Zaffos, Procurement
Analyst, at (202) 208-6091. Please cite FAR case 2004-021.
SUPPLEMENTARY INFORMATION:
A. Background
OMB Circular A-76 (Revised), Performance of Commercial Activities,
was issued in May 2003. The language at FAR Subpart 7.3, and elsewhere,
reflects the policies contained in the previous version of the Circular
and in Office of Federal Procurement Policy (OFPP) Policy Letter 92-1,
Inherently Governmental Functions, which was superseded by the revised
Circular.
To implement the policies of the revised Circular, the Councils
propose to delete the language at FAR Subpart 7.3 and replace it with
clear and concise information that does not duplicate the Circular.
Accordingly, the following changes are proposed:
Delete the reference to a list of commercial activities
contained in an attachment to the previous Circular A-76 in the
definition of inherently governmental functions at FAR 2.101.
Revise FAR 5.205(e) to reflect the procedure contracting
officers must follow when issuing public announcements of public-
private competitions through the Government Point of Entry.
Replace the reference to OFPP Policy Letter 91-2 in FAR
7.105(b)(9) with a reference to Subpart 7.5.
Delete the title and contents of FAR 7.300 and reserve the
section for future use.
Rename FAR 7.301 as Definitions, and state that the terms
used in the subpart are defined by the Circular.
Rename FAR 7.302 and concisely set forth the general
policy purposes of the Circular. Consistent with section 326 of the
Ronald W. Reagan National
[[Page 43108]]
Defense Authorization Act for Fiscal Year 2005 (Pub. L. 108-375),
specifically naming the Agency Tender Official as an interested party
for purposes of filing a protest with the Government Accountability
Office (GAO) under FAR 33.103. GAO published a final rule to amend its
Bid Protest Regulations on April 14, 2005 (70 FR 19680).
Add a statement at FAR 7.302(c) precluding the use of
discussions to permit correction of deficiencies in sealed bids in
public-private competitions. During the development of the rule, some
members of the Councils questioned whether the ``special
considerations'' language addressing the source selection process in
Attachment B of Circular A-76 was intended to permit discussions to
correct deficiencies under sealed bidding. Officials from the Office of
Federal Procurement Policy (OFPP) advised the Councils that the
Circular should not be read to permit discussions in sealed bidding.
Rather, sealed bidding under A-76 is to be conducted consistent with
FAR Part 14, as stated in paragraph D.5.a of Attachment B of Circular
A-76. OFPP further clarified that the Circular's special considerations
coverage on deficiencies was directed at negotiated source selection
procedures, where the FAR provides for exchanges under FAR 15.306. To
avoid confusion on this point, the Councils, with OFPP concurrence,
propose to add a statement at FAR 7.302(c) to make clear that
contracting officers shall not hold discussions to correct deficiencies
when using sealed bidding in public-private competitions under OMB
Circular A-76. This will ensure that the Circular and the FAR are
applied in a consistent manner.
Delete the contents of FAR 7.303, 7.304, 7.306, and 7.307
and reserve FAR 7.303 and 7.304 for future use.
Revise the language in FAR 7.305 to reflect the
terminology used in the Circular.
Amend FAR 7.500 to delete the reference to OFPP Policy
Letter 92-1.
Delete FAR 14.203-2(b) so that information dissemination
requirements are consistent with the revised Circular.
Revise FAR 37.503(c) to delete the reference to OFPP
Policy Letter 92-1 and replace it with language stating that agency
heads, before contracting for services, must ensure that specific
policies are in place to ensure that inherently governmental functions
are performed by Government personnel.
Rename and revise the provision at 52.207-1 to reflect the
current procedures that are to be followed in a standard public-private
competition.
Rename and revise the provision at 52.207-2 to reflect the
current procedures that are to be followed in a streamlined public-
private competition.
Amend the clause at 52.207-3, Right of First Refusal of
Employment, to cover the group of people directly affected by public-
private competitions under new definitions in the Circular. The
Circular uses the term ``Government personnel'' instead of the more
narrow ``Government employees.'' The clause will be consistent with the
Circular.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule does not impose any costs on either small or large
businesses. An Initial Regulatory Flexibility Analysis has, therefore,
not been performed. We invite comments from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR Parts 2, 5, 7, 14, 37, and 52 in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 601, et seq. (FAR case
2004-021), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 2, 5, 7, 14, 37, and 52
Government procurement.
Dated: July 18, 2005.
Julia B. Wise,
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 5,
7, 14, 37, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 5, 7, 14, 37, and 52
is revised to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2.101 [Amended]
2. Amend section 2.101 in paragraph (b), in the definition
``Inherently governmental function'', by removing the last sentence in
paragraph (2).
PART 5--PUBLICIZING CONTRACT ACTIONS
3. Amend section 5.205 by revising paragraph (e) to read as
follows:
5.205 Special situations.
* * * * *
(e) Public-private competitions under OMB Circular A-76. (1) The
contracting officer shall make a formal public announcement for each
streamlined or standard competition. The public announcement shall
include, at a minimum, the agency, agency component, location, type of
competition (streamlined or standard), activity being competed,
incumbent service providers, number of Government personnel performing
the activity, name of the Competitive Sourcing Official, name of the
contracting officer, name of the Agency Tender Official, and projected
end date of the competition.
(2) The contracting officer shall announce the end of the
streamlined or standard competition by making a formal public
announcement of the performance decision. (See OMB Circular A-76.)
* * * * *
PART 7--ACQUISITION PLANNING
4. Amend section 7.105 by revising paragraph (b)(9) to read as
follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(9) Inherently governmental functions. Address the consideration
given to Subpart 7.5.
* * * * *
5. Revise Subpart 7.3 to read as follows:
Subpart 7.3--Contractor Versus Government Performance
Sec.
7.300 [Reserved]
7.301 Definitions.
7.302 Policy.
7.303 [Reserved]
7.304 [Reserved]
7.305 Solicitation provisions and contract clause.
[[Page 43109]]
7.300 [Reserved]
7.301 Definitions.
Definitions of ``inherently governmental activity'' and other terms
applicable to this subpart are set forth at Attachment D of the Office
of Management and Budget Circular No. A-76 (Revised), Performance of
Commercial Activities, dated May 29, 2003 (the Circular).
7.302 Policy.
(a) The Circular provides that it is the policy of the Government
to--
(1) Perform inherently governmental activities with Government
personnel; and
(2) Subject commercial activities to the forces of competition.
(b) As provided in the Circular, agencies shall--
(1) Not use contractors to perform inherently governmental
activities;
(2) Conduct public-private competitions in accordance with the
provisions of the Circular and, as applicable, these regulations;
(3) Give appropriate consideration relative to cost when making
performance decisions between agency and contractor performance in
public-private competitions;
(4) Consider the Agency Tender Official an interested party in
accordance with 31 U.S.C. 3551 to 3553 for purposes of filing a protest
at the Government Accountability Office; and
(5) Hear contests in accordance with OMB Circular A-76, Attachment
B, paragraph F.
(c) When using sealed bidding in public-private competitions under
OMB Circular A-76, contracting officers shall not hold discussions to
correct deficiencies.
7.303 [Reserved]
7.304 [Reserved]
7.305 Solicitation provisions and contract clause.
(a) The contracting officer shall, when soliciting offers and
tenders, insert in solicitations issued for standard competitions the
provision at 52.207-1, Notice of Standard Competition.
(b) The contracting officer shall, when soliciting offers, insert
in solicitations issued for streamlined competitions the provision at
52.207-2, Notice of Streamlined Competition.
(c) The contracting officer shall insert the clause at 52.207-3,
Right of First Refusal of Employment, in all solicitations which may
result in a conversion from in-house performance to contract
performance of work currently being performed by the Government and in
contracts that result from the solicitations, whether or not a public-
private competition is conducted. The 10-day period in the clause may
be varied by the contracting officer up to a period of 90 days.
7.500 [Amended]
6. Amend section 7.500 by removing the last sentence.
PART 14--SEALED BIDDING
14.203-2 [Amended]
7. Amend section 14.203-2 by removing the paragraph designation
``(a)'' and by removing paragraph (b).
PART 37--SERVICE CONTRACTING
8. Amend section 37.503 by revising paragraph (c) to read as
follows:
37.503 Agency-head responsibilities.
* * * * *
(c) Specific procedures are in place before contracting for
services to ensure that inherently governmental functions are performed
by Government personnel; and
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
9. Revise the section heading and text of section 52.207-1 to read
as follows:
52.207-1 Notice of Standard Competition.
As prescribed in 7.305(a), insert the following provision:
NOTICE OF STANDARD COMPETITION (DATE)
(a) This solicitation is part of a standard competition under
Office of Management and Budget Circular No. A-76 (Revised),
Performance of Commercial Activities, dated May 29, 2003 (hereafter
``the Circular''), to determine whether to accomplish the specified
work under contract or by Government performance.
(b) The Government will evaluate private sector offers, the
agency tender, and public reimbursable tenders, as provided in this
solicitation and the Circular.
(c) A performance decision resulting from this standard
competition will be publicly announced in accordance with the
Circular. If the performance decision favors a private sector
offeror, a contract will be awarded. If the performance decision
favors an agency or a public reimbursable tender, the Contracting
Officer shall establish, respectively, either a Most Efficient
Organization letter of obligation or a fee-for-service agreement, as
those terms are defined in the Circular.
(d) As provided in the Circular, directly interested parties may
file contests, which are governed by the procedures in FAR 33.103.
Until resolution of any contest, or the expiration of the time for
filing a contest, only legal agents for directly interested parties
shall have access to the certified standard competition form, the
agency tender, and public reimbursable tenders.
(End of provision)
10. Revise section 52.207-2 to read as follows:
52.207-2 Notice of Streamlined Competition.
As prescribed in 7.305(b), insert the following provision:
NOTICE OF STREAMLINED COMPETITION (DATE)
(a) This solicitation is part of a streamlined competition under
Office of Management and Budget Circular No. A-76 (Revised),
Performance of Commercial Activities, dated May 29, 2003 (hereafter
``the Circular''), to determine whether to accomplish the specified
work under contract or by Government performance.
(b) The Government will evaluate the cost of private sector and
Agency or public reimbursable performance, as provided in this
solicitation and the Circular.
(c) A performance decision resulting from this streamlined
competition will be publicly announced in accordance with the
Circular. If the performance decision favors private sector
performance, the Contracting Officer shall either award a contract
or issue a competitive solicitation for private sector offers. If
the performance decision favors Agency or public reimbursable
performance, the Agency shall establish, respectively, either a
letter of obligation or a fee-for-service agreement, as those terms
are defined in the Circular.
(End of provision)
52.207-3 [Amended]
11. Amend section 52.207-3 by revising the date of the clause to
read ``(DATE)''; and by removing from paragraphs (a) and (b) of the
clause the word ``employees'' and adding ``personnel'' in its place.
[FR Doc. 05-14569 Filed 7-25-05; 8:45 am]
BILLING CODE 6820-EP-S
