Federal Acquisition Regulation; FAR Case 2005-014, SmartBUY, 61603-61605 [07-5405]
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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Proposed Rules
therefore, likely overstates the number
of small entities that might be affected
by our action, because the revenue
figure on which it is based does not
include or aggregate revenues from
affiliated companies. The Commission
has estimated the number of licensed
NCE television stations to be 380. The
Commission does not compile and
otherwise does not have access to
information on the revenue of NCE
stations that would permit it to
determine how many such stations
would qualify as small entities.
60. In addition, an element of the
definition of ‘‘small business’’ is that the
entity not be dominant in its field of
operation. We are unable at this time to
define or quantify the criteria that
would establish whether a specific
television station is dominant in its field
of operation. Accordingly, the estimate
of small businesses to which rules may
apply do not exclude any television
station from the definition of a small
business on this basis and are therefore
over-inclusive to that extent. Also, as
noted, an additional element of the
definition of ‘‘small business’’ is that the
entity must be independently owned
and operated. We note that it is difficult
at times to assess these criteria in the
context of media entities and our
estimates of small businesses to which
they apply may be over-inclusive to this
extent.
rwilkins on PROD1PC63 with PROPOSALS-1
Description of Proposed Reporting,
Recordkeeping and Other Compliance
Requirements
61. The rules ultimately adopted as a
result of this NPRM may contain new or
modified information collections. We
anticipate that none of the changes
would result in an increase to the
reporting and recordkeeping
requirements of small entities. We invite
small entities to comment in response to
the NPRM.
Steps Taken to Minimize Significant
Impact on Small Entities and Significant
Alternatives Considered
62. The RFA requires an agency to
describe any significant alternatives that
it has considered in proposing
regulatory approaches, which may
include the following four alternatives
(among others): (1) The establishment of
differing compliance or reporting
requirements or timetables that take into
account the resources available to small
entities; (2) the clarification,
consolidation, or simplification of
compliance or reporting requirements
under the rule for small entities; (3) the
use of performance, rather than design,
standards; and (4) an exemption from
coverage of the rule, or any part thereof,
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for small entities. First, regarding the
establishment of a procedure that would
shorten the five-year term of the
extension of the exclusive contract
prohibition, the Commission may
choose to establish such a procedure or,
in the alternative, it may not choose to
do so. Second, regarding the extension
of the program access rules to
terrestrially delivered cable-affiliated
programmers, the Commission may
choose to extend these rules to
terrestrially delivered cable-affiliated
programmers or, in the alternative, it
may choose not to extend these rules to
such programmers. Third, regarding
expansion of the exclusive contract
prohibition to apply to non-cableaffiliated programming that is affiliated
with a different MVPD, principally a
DBS provider, the Commission may
choose to extend the exclusive contract
prohibition to apply to such non-cableaffiliated programming or, in the
alternative, it may choose not to extend
the exclusive contract prohibition to
such programming. Fourth, regarding
the practice of programmers to engage in
tying of desired with undesired
programming, the Commission may
choose to preclude all such tying
arrangements or, in the alternative, it
may choose not to preclude any such
arrangements or, in the alternative, it
may choose to preclude only certain
tying arrangements. Fifth, with respect
to concerns raised by small and rural
MVPDs regarding conditions imposed
by programmers for access to content,
the Commission may choose to take
action to address some or all of these
concerns or, in the alternative, it may
choose not to take action to address
these concerns. Sixth, regarding the
establishment of a process whereby a
program access complainant may seek a
temporary stay of any proposed changes
to its existing programming contract
pending resolution of the complaint, the
Commission may establish such a
process or, in the alternative, it may
choose not to establish such a process.
Seventh, regarding the requirement that
parties submit to the Commission, when
requested, ‘‘final offer’’ proposals as part
of the remedy phase of the complaint
process, the Commission may adopt
such a requirement or, in the
alternative, it may choose not to adopt
such a requirement. We invite comment
on the options the Commission is
considering, or alternatives thereto as
referenced above, and on any other
alternatives commenters may wish to
propose for the purpose of minimizing
significant economic impact on smaller
entities.
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61603
Federal Rules Which Duplicate,
Overlap, or Conflict With the
Commission’s Proposals
63. None.
F. Additional Information
64. For additional information on this
proceeding, contact Steven Broeckaert,
Steven.Broeckaert@fcc.gov; David
Konczal, David.Konczal@fcc.gov; or
Katie Costello, Katie.Costello@fcc.gov; of
the Media Bureau, Policy Division, (202)
418–2120.
VIII. Ordering Clauses
65. Accordingly, it is ordered,
pursuant to the authority found in
sections 4(i), 303(r), and 628 of the
Communications Act of 1934, as
amended, 47 U.S.C. 154(i), 303(r), and
548, this Notice of Proposed
Rulemaking Is Adopted.
66. It is further ordered that the
Commission’s Consumer and
Governmental Affairs Bureau, Reference
Information Center, shall send a copy of
this Notice of Proposed Rulemaking,
including the Initial Regulatory
Flexibility Analysis, to the Chief
Counsel for Advocacy of the Small
Business Administration.
Federal Communications Commission.
Marlene H. Dortch,
Secretary.
[FR Doc. 07–5388 Filed 10–30–07; 8:45 am]
BILLING CODE 6712–01–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 7, 8, 12, and 39
[FAR Case 2005–014; Docket 2007-0001;
Sequence 9]
RIN 9000–AK83
Federal Acquisition Regulation; FAR
Case 2005–014, SmartBUY
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Proposed rule.
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to
implement the Governmentwide
Enterprise Software Licensing Program,
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rwilkins on PROD1PC63 with PROPOSALS-1
61604
Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Proposed Rules
also known as SmartBUY. This action is
necessary to comply with Office of
Management and Budget Memorandum
M–04–08, Maximizing Use of SmartBuy
and Avoiding Duplication of Agency
Activities with the President’s 24 E-Gov
Initiatives, dated February 25, 2004. By
leveraging the Federal Government
Enterprise Software Licensing Program,
the Government will achieve the
maximum cost savings and favorable
terms and conditions for acquiring
software and software maintenance.
This rule impacts contracting officers
and other acquisition officials
responsible for reviewing the terms,
conditions, and prices for the
acquisition of commercial software and
software maintenance.
DATES: Interested parties should submit
written comments to the FAR
Secretariat on or before December 31,
2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAR case 2005–014, by
any of the following methods:
Federal eRulemaking Portal: https://
www.regulations.gov.
• To search for any document, first
select under ‘‘Step 1,’’ ‘‘Documents with
an Open Comment Period’’ and select
under ‘‘Optional Step 2,’’ ‘‘Federal
Acquisition Regulation’’ as the agency
of choice. Under ‘‘Optional Step 3,’’
select ‘‘Proposed Rules’’. Under
‘‘Optional Step 4,’’ from the drop down
list, select ‘‘Document Title’’ and type
the FAR case number ‘‘2005-014’’. Click
the ‘‘Submit’’ button. Please include
your name and company name (if any)
inside the document. You may also
search for any document by clicking on
the ‘‘Search for Documents’’ tab at the
top of the screen. Select from the agency
field ‘‘Federal Acquisition Regulation’’,
and type ‘‘2005-014’’ in the ‘‘Document
Title’’ field. Select the ‘‘Submit’’ button.
• 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 2005–014, in all
correspondence related to this case. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT Ms.
Jeritta Parnell, Procurement Analyst, at
(202) 501–4082 for clarification of
content. For information pertaining to
status or publication schedules, contact
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17:11 Oct 30, 2007
Jkt 214001
the FAR Secretariat at (202) 501–4755.
Please cite FAR case 2005–014.
SUPPLEMENTARY INFORMATION:
A. Background
Pursuant to Section 5112 of the
Clinger-Cohen Act of 1996 (40 U.S.C.
11302), the Office of Management and
Budget (OMB) is responsible for
improving the acquisition and use of
information technology (IT) by the
Federal Government and designating
Executive Agents for Governmentwide
acquisitions of IT. To ensure that the
Federal Government is maximizing its
buying power to achieve the cost
savings and favorable terms and
conditions for commercial software,
OMB created the SmartBUY initiative.
GSA is designated as the Executive
Agent for the SmartBUY initiative.
This rule proposes to amend the FAR
to ensure SmartBUY is considered
during acquisition planning, and
prescribes the policies and procedures
for using SmartBUY enterprise
agreements.
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 applies to commercial agreements
under the SmartBUY Program that are
based on existing negotiated contracts.
These agreements direct contracting
officers to consider established
contracting vehicles. Small businesses
have participated in the SmartBuy
Program to date. In fact, three of the six
existing agreements are with small
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 Part 7, 8,
12, and 39 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 2005–014),
in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the proposed changes
to the FAR do not impose information
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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 7, 8, 12,
and 39
Government procurement.
Dated: October 22, 2007.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 7, 8, 12,
and 39 as set forth below:
1. The authority citation for 48 CFR
parts 7, 8, 12, and 39 continues 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 7—ACQUISITION PLANNING
2. Amend section 7.103 by adding
paragraph (v) to read as follows:
7.103
Agency-head responsibilities.
*
*
*
*
*
(v) Ensuring that agency planners
fulfill requirements for commercial
software or related services, such as
software maintenance, in accordance
with the SmartBUY program (see FAR
Subpart 8.9).
3. Amend section 7.105 by adding
paragraph (b)(4)(ii)(B)(3) to read as
follows:
7.105 Contents of written acquisition
plans.
*
*
*
*
*
(b) * * *
(4) * * *
(ii) * * *
(B) * * *
(3) Ordering through a SmartBUY
agreement leverages Government user
volume and achieves a substantial price
discount.
*
*
*
*
*
PART 8—REQUIRED SOURCES OF
SUPPLIES AND SERVICES
4. Add subpart 8.9 to read as follows:
Subpart 8.9—Acquisition of
Commercial Software
Sec.
8.900
8.901
8.902
8.903
8.904
8.905
Scope of subpart.
Definitions.
General.
Policy.
Acquisition procedures.
Approval and Notification.
8.900
Scope of subpart.
This subpart prescribes the policies
and procedures for acquisition of
commercial software or related services,
such as software maintenance, through
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Federal Register / Vol. 72, No. 210 / Wednesday, October 31, 2007 / Proposed Rules
the Governmentwide Enterprise
Software Program, also known as
SmartBUY.
8.901
Definitions.
As used in this subpart—
Enterprise software agreement (ESA)
means an agreement established for
agencies to use to acquire designated
commercial software or related services,
such as software maintenance.
Software maintenance means
activities performed and/or services
provided by the original equipment
manufacturer (OEM) as standard
services to keep software functioning to
the commercial specification, at
established catalog or market prices,
e.g., the right to receive and use
upgraded versions of software, updates,
and revisions.
Software product manager means the
Government official who manages an
enterprise software agreement.
8.902
General.
SmartBUY is a consolidated
purchasing program for the acquisition
of commercial software or related
services, such as software maintenance.
SmartBUY is designed to provide all
agencies, regardless of their size, the
greatest price discounts available to the
Federal Government. The SmartBUY
Software Program (see website at https://
www.gsa.gov/smartbuy) promotes the
use of Enterprise Software Agreements
(ESAs) with contractors, called
SmartBUY agreements, that allow the
Government to obtain favorable terms
and pricing for commercial software or
related services, such as software
maintenance.
8.903
Policy.
Prior to issuing contracts for
commercial software or related services,
such as software maintenance, agencies
shall review the SmartBUY agreements
at https://www.gsa.gov/smartbuy or
https://www.esi.mil. Federal agencies
shall place an order to fulfill
requirements for commercial software or
related services, such as software
maintenance, when a SmartBUY
agreement is available and is applicable
to the agency’s requirement and volume.
8.904
Acquisition procedures.
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(a) The contracting officer or other
ordering official must review the terms,
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conditions, and prices using market
research or other procurement practices
to determine if commercial software or
related services, such as software
maintenance, is available through a
SmartBUY agreement.
(b) When the terms, conditions, and
prices represent a best value to the
Government, the contracting officer or
other ordering official shall place an
order to fulfill the requirement for
commercial software or related services,
such as software maintenance, through
a SmartBUY agreement.
(c) When an existing SmartBUY
agreement does not represent the best
value to the Government, the
contracting officer or other ordering
official should allow the contractor an
opportunity to provide the same or a
better value under the SmartBUY
agreement before using alternate
procurement methods. In such cases,
the contracting officer or other ordering
official should notify the SmartBUY
program office Software Product
Manager of specific concerns, so that the
SPM can take action to potentially
improve an existing SmartBUY
agreement’s terms, conditions or prices
through the SmartBUY website.
(d) When an available SmartBUY
agreement will not be used, the
contracting officer or other ordering
official must comply with the approval
and notification procedures in 8.905.
(e) When the required commercial
software or related services, such as
software maintenance, is no[0]t covered
by a SmartBUY agreement, the
contracting officer may fulfill a
requirement using other procurement
methods.
8.905
Approval and Notification.
(a) The contracting officer or ordering
official must get approval from the
agency Senior Procurement Executive
and the agency Chief Information
Officer, or as provided by agency
procedures, when not using an available
SmartBUY agreement. The approval
shall—
(1) Describe the agency’s requirement;
(2) Explain the reason for not using an
existing SmartBUY agreement; and
(3) Describe how the agency will
satisfy its needs for commercial software
and negotiate a fair and reasonable
price.
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61605
(b) The contracting officer or ordering
official must notify GSA when an
available SmartBUY agreement is not
used to acquire commercial software or
related services, such as software
maintenance, by sending a copy of the
approval to GSA at— General Services
Administration, Deputy Associate
Administrator, Office of Technology
Strategy (ME), 1800 F Street, NW,
Washington, DC 20406; or send via email to SmartBUYwaiver@gsa.gov.
PART 12—ACQUISITION OF
COMMERCIAL ITEMS
5. Amend section 12.212 by adding
paragraph (c) to read as follows:
12.212
Computer software.
*
*
*
*
*
(c) Acquisition officials shall consider
using SmartBUY Enterprise Software
Agreements when acquiring commercial
software or related services, such as
software maintenance (see FAR Subpart
8.9).
PART 39—ACQUISITION OF
INFORMATION TECHNOLOGY
6. Amend section 39.101 by revising
paragraph (b) to read as follows:
39.101
Policy.
*
*
*
*
*
(b)(1) In acquiring information
technology, agencies shall identify their
requirements pursuant to—
(i) OMB Circular A–130, including
consideration of security of resources,
protection of privacy, national security
and emergency preparedness,
accommodations for individual with
disabilities, and energy efficiency; and
(ii) FAR 8.903 and the availability of
a SmartBUY Agreement.
(2) When developing an acquisition
strategy, contracting officers should
consider the rapidly changing nature of
information technology through market
research (see Part 10) and the
application of technology refreshment
techniques.
*
*
*
*
*
[FR Doc. 07–5405 Filed 10–30–07; 8:45 am]
BILLING CODE 6820–EP–S
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]]>Agencies
[Federal Register Volume 72, Number 210 (Wednesday, October 31, 2007)]
[Proposed Rules]
[Pages 61603-61605]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-5405]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 7, 8, 12, and 39
[FAR Case 2005-014; Docket 2007-0001; Sequence 9]
RIN 9000-AK83
Federal Acquisition Regulation; FAR Case 2005-014, SmartBUY
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 implement the Governmentwide
Enterprise Software Licensing Program,
[[Page 61604]]
also known as SmartBUY. This action is necessary to comply with Office
of Management and Budget Memorandum M-04-08, Maximizing Use of SmartBuy
and Avoiding Duplication of Agency Activities with the President's 24
E-Gov Initiatives, dated February 25, 2004. By leveraging the Federal
Government Enterprise Software Licensing Program, the Government will
achieve the maximum cost savings and favorable terms and conditions for
acquiring software and software maintenance. This rule impacts
contracting officers and other acquisition officials responsible for
reviewing the terms, conditions, and prices for the acquisition of
commercial software and software maintenance.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before December 31, 2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2005-014, by any of
the following methods:
Federal eRulemaking Portal: https://www.regulations.gov.
To search for any document, first select under ``Step 1,''
``Documents with an Open Comment Period'' and select under ``Optional
Step 2,'' ``Federal Acquisition Regulation'' as the agency of choice.
Under ``Optional Step 3,'' select ``Proposed Rules''. Under ``Optional
Step 4,'' from the drop down list, select ``Document Title'' and type
the FAR case number ``2005-014''. Click the ``Submit'' button. Please
include your name and company name (if any) inside the document. You
may also search for any document by clicking on the ``Search for
Documents'' tab at the top of the screen. Select from the agency field
``Federal Acquisition Regulation'', and type ``2005-014'' in the
``Document Title'' field. Select the ``Submit'' button.
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 2005-
014, in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT Ms. Jeritta Parnell, Procurement
Analyst, at (202) 501-4082 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2005-014.
SUPPLEMENTARY INFORMATION:
A. Background
Pursuant to Section 5112 of the Clinger-Cohen Act of 1996 (40
U.S.C. 11302), the Office of Management and Budget (OMB) is responsible
for improving the acquisition and use of information technology (IT) by
the Federal Government and designating Executive Agents for
Governmentwide acquisitions of IT. To ensure that the Federal
Government is maximizing its buying power to achieve the cost savings
and favorable terms and conditions for commercial software, OMB created
the SmartBUY initiative. GSA is designated as the Executive Agent for
the SmartBUY initiative.
This rule proposes to amend the FAR to ensure SmartBUY is
considered during acquisition planning, and prescribes the policies and
procedures for using SmartBUY enterprise agreements.
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 applies to commercial agreements under the SmartBUY
Program that are based on existing negotiated contracts. These
agreements direct contracting officers to consider established
contracting vehicles. Small businesses have participated in the
SmartBuy Program to date. In fact, three of the six existing agreements
are with small 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 Part 7, 8, 12, and 39 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
2005-014), 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 7, 8, 12, and 39
Government procurement.
Dated: October 22, 2007.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 7, 8,
12, and 39 as set forth below:
1. The authority citation for 48 CFR parts 7, 8, 12, and 39
continues 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 7--ACQUISITION PLANNING
2. Amend section 7.103 by adding paragraph (v) to read as follows:
7.103 Agency-head responsibilities.
* * * * *
(v) Ensuring that agency planners fulfill requirements for
commercial software or related services, such as software maintenance,
in accordance with the SmartBUY program (see FAR Subpart 8.9).
3. Amend section 7.105 by adding paragraph (b)(4)(ii)(B)(3) to read
as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(4) * * *
(ii) * * *
(B) * * *
(3) Ordering through a SmartBUY agreement leverages Government user
volume and achieves a substantial price discount.
* * * * *
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
4. Add subpart 8.9 to read as follows:
Subpart 8.9--Acquisition of Commercial Software
Sec.
8.900 Scope of subpart.
8.901 Definitions.
8.902 General.
8.903 Policy.
8.904 Acquisition procedures.
8.905 Approval and Notification.
8.900 Scope of subpart.
This subpart prescribes the policies and procedures for acquisition
of commercial software or related services, such as software
maintenance, through
[[Page 61605]]
the Governmentwide Enterprise Software Program, also known as SmartBUY.
8.901 Definitions.
As used in this subpart--
Enterprise software agreement (ESA) means an agreement established
for agencies to use to acquire designated commercial software or
related services, such as software maintenance.
Software maintenance means activities performed and/or services
provided by the original equipment manufacturer (OEM) as standard
services to keep software functioning to the commercial specification,
at established catalog or market prices, e.g., the right to receive and
use upgraded versions of software, updates, and revisions.
Software product manager means the Government official who manages
an enterprise software agreement.
8.902 General.
SmartBUY is a consolidated purchasing program for the acquisition
of commercial software or related services, such as software
maintenance. SmartBUY is designed to provide all agencies, regardless
of their size, the greatest price discounts available to the Federal
Government. The SmartBUY Software Program (see website at https://
www.gsa.gov/smartbuy) promotes the use of Enterprise Software
Agreements (ESAs) with contractors, called SmartBUY agreements, that
allow the Government to obtain favorable terms and pricing for
commercial software or related services, such as software maintenance.
8.903 Policy.
Prior to issuing contracts for commercial software or related
services, such as software maintenance, agencies shall review the
SmartBUY agreements at https://www.gsa.gov/smartbuy or https://
www.esi.mil. Federal agencies shall place an order to fulfill
requirements for commercial software or related services, such as
software maintenance, when a SmartBUY agreement is available and is
applicable to the agency's requirement and volume.
8.904 Acquisition procedures.
(a) The contracting officer or other ordering official must review
the terms, conditions, and prices using market research or other
procurement practices to determine if commercial software or related
services, such as software maintenance, is available through a SmartBUY
agreement.
(b) When the terms, conditions, and prices represent a best value
to the Government, the contracting officer or other ordering official
shall place an order to fulfill the requirement for commercial software
or related services, such as software maintenance, through a SmartBUY
agreement.
(c) When an existing SmartBUY agreement does not represent the best
value to the Government, the contracting officer or other ordering
official should allow the contractor an opportunity to provide the same
or a better value under the SmartBUY agreement before using alternate
procurement methods. In such cases, the contracting officer or other
ordering official should notify the SmartBUY program office Software
Product Manager of specific concerns, so that the SPM can take action
to potentially improve an existing SmartBUY agreement's terms,
conditions or prices through the SmartBUY website.
(d) When an available SmartBUY agreement will not be used, the
contracting officer or other ordering official must comply with the
approval and notification procedures in 8.905.
(e) When the required commercial software or related services, such
as software maintenance, is no[0]t covered by a SmartBUY agreement, the
contracting officer may fulfill a requirement using other procurement
methods.
8.905 Approval and Notification.
(a) The contracting officer or ordering official must get approval
from the agency Senior Procurement Executive and the agency Chief
Information Officer, or as provided by agency procedures, when not
using an available SmartBUY agreement. The approval shall--
(1) Describe the agency's requirement;
(2) Explain the reason for not using an existing SmartBUY
agreement; and
(3) Describe how the agency will satisfy its needs for commercial
software and negotiate a fair and reasonable price.
(b) The contracting officer or ordering official must notify GSA
when an available SmartBUY agreement is not used to acquire commercial
software or related services, such as software maintenance, by sending
a copy of the approval to GSA at-- General Services Administration,
Deputy Associate Administrator, Office of Technology Strategy (ME),
1800 F Street, NW, Washington, DC 20406; or send via e-mail to
SmartBUYwaiver@gsa.gov.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
5. Amend section 12.212 by adding paragraph (c) to read as follows:
12.212 Computer software.
* * * * *
(c) Acquisition officials shall consider using SmartBUY Enterprise
Software Agreements when acquiring commercial software or related
services, such as software maintenance (see FAR Subpart 8.9).
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
6. Amend section 39.101 by revising paragraph (b) to read as
follows:
39.101 Policy.
* * * * *
(b)(1) In acquiring information technology, agencies shall identify
their requirements pursuant to--
(i) OMB Circular A-130, including consideration of security of
resources, protection of privacy, national security and emergency
preparedness, accommodations for individual with disabilities, and
energy efficiency; and
(ii) FAR 8.903 and the availability of a SmartBUY Agreement.
(2) When developing an acquisition strategy, contracting officers
should consider the rapidly changing nature of information technology
through market research (see Part 10) and the application of technology
refreshment techniques.
* * * * *
[FR Doc. 07-5405 Filed 10-30-07; 8:45 am]
BILLING CODE 6820-EP-S
