Federal Acquisition Regulation; FAR Case 2008-006, Enhanced Competition for Task and Delivery Order Contracts-Section 843 of the Fiscal Year 2008 National Defense Authorization Act, 54008-54010 [E8-21379]
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54008
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
12.503 Applicability of certain laws to
Executive agency contracts for the
acquisition of commercial items.
(a) * * *
(7) Section 806(a)(3) of Pub. L. 102–
190, as amended by Sections 2091 and
8105 of Pub. L. 103–355, Payment
Protections for Subcontractors and
Suppliers (see 28.106–6).
*
*
*
*
*
■ 3. Amend section 12.504 by adding
paragraph (a)(13) to read as follows:
12.504 Applicability of certain laws to
subcontracts for the acquisition of
commercial items.
(a) * * *
(13) Section 806(a)(3) of Pub. L. 102–
190, as amended by Sections 2091 and
8105 of Pub. L. 103–355, Payment
Protections for Subcontractors and
Suppliers (see 28.106–6).
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*
[FR Doc. E8–21381 Filed 9–16–08; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
48 CFR Part 13
[FAC 2005–27; FAR Case 2008–002; Item
VIII; Docket 2008–0001; Sequence 11]
RIN 9000–AL02
Federal Acquisition Regulation; FAR
Case 2008–002, Extension of Authority
for Use of Simplified Acquisition
Procedures for Certain Commercial
Items
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCIES:
pwalker on PROD1PC71 with RULES3
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on a final rule
amending the Federal Acquisition
Regulation (FAR) to implement Section
822 of the National Defense
Authorization Act for Fiscal Year 2008
(Pub. L. 110–181).
DATES: Effective Date: September 17,
2008.
FOR FURTHER INFORMATION CONTACT Mr.
Michael Jackson, Procurement Analyst,
at (202) 208–4949 for clarification of
content. For information pertaining to
status or publication schedules, contact
18:29 Sep 16, 2008
A. Background
This final rule amends the FAR to
implement Section 822 of the National
Defense Authorization Act for Fiscal
Year 2008 (Pub. L. 110–181). Section
822 amends Section 4202(e) of the
Clinger-Cohen Act of 1996 (division D
of Pub. L. 104–106; 110 Stat. 652; 10
U.S.C. 2304 note) by extending until
January 1, 2010, the timeframe in which
an agency may use simplified
procedures to purchase commercial
items in amounts greater than the
simplified acquisition threshold, but not
exceeding $5,500,000 ($11 million for
acquisitions as described in 13.500(e)).
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
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
VerDate Aug<31>2005
the FAR Secretariat at (202) 501–4755.
Please cite FAC 2005–27, FAR case
2008–002.
SUPPLEMENTARY INFORMATION:
Jkt 214001
The Regulatory Flexibility Act does
not apply to this rule. This final rule
does not constitute a significant FAR
revision within the meaning of FAR
1.501 and Pub. L. 98–577, and
publication for public comments is not
required. However, the Councils will
consider comments from small entities
concerning the affected FAR Part 13 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. (FAC 2005–27, FAR case 2008–
002), in all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the 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 Part 13
Government procurement.
Dated: September 9, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 13 as set forth
below:
■
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
1. The authority citation for 48 CFR
part 13 continues to read as follows:
■
PO 00000
Frm 00020
Fmt 4701
Sfmt 4700
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
13.500
[Amended]
2. Amend section 13.500 by removing
from paragraph (d) ‘‘January 1, 2008’’
and adding ‘‘January 1, 2010’’ in its
place.
■
[FR Doc. E8–21380 Filed 9–16–08; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005–27; FAR Case 2008–006; Item
IX; Docket 2008–01, Sequence 5]
RIN 9000–AL05
Federal Acquisition Regulation; FAR
Case 2008–006, Enhanced Competition
for Task and Delivery Order
Contracts—Section 843 of the Fiscal
Year 2008 National Defense
Authorization Act
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Fiscal Year 2008 National Defense
Authorization Act, Section 843
‘‘Enhanced Competition for Task and
Delivery Order Contracts’’ (FY08
NDAA). Section 843 of the FY08 NDAA
stipulates several requirements
regarding enhancing competition within
Federal contracting.
DATES: Effective Date: September 17,
2008.
Applicability date: FAR 16.503 and
16.504, as amended by this rule, are
applicable to single award task or
delivery order contracts awarded on or
after May 27, 2008. FAR 16.505, as
amended by this rule, is applicable to
orders awarded on or after May 27, 2008
on existing contracts as well as new
contracts.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before November
17, 2008 to be considered in the
formulation of a final rule.
E:\FR\FM\17SER3.SGM
17SER3
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
Submit comments
identified by FAC 2005–27, FAR case
2008–006, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2008–006’’ under the heading
‘‘Comment or Submission’’. Select the
link ‘‘Send a Comment or Submission’’
that corresponds with FAR Case 2008–
006. Follow the instructions provided to
complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘FAR Case 2008–006’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW, Room 4041,
ATTN: Laurieann Duarte, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–27, FAR case
2008–006, 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: Mr.
William Clark, Procurement Analyst, at
(202) 219–1813 for clarification of
content. Please cite FAC 2005–27, FAR
case 2008–006. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
ADDRESSES:
pwalker on PROD1PC71 with RULES3
A. Background
The Fiscal Year 2008 National
Defense Authorization Act (Pub. L. 110–
181), Section 843 ‘‘Enhanced
Competition for Task and Delivery
Order Contracts’’ includes several
requirements regarding enhancing
competition within the Federal
contracting framework. The provisions
of Section 843 include: (1) Limitation on
single award task and delivery order
contracts greater than $100 million; (2)
Enhanced competition for task and
delivery orders in excess of $5 million;
and (3) Protest on orders on the grounds
that the order increases the scope,
period, maximum value of the contract
under which the order is issued; or
valued in excess of $10 million.
The FAR changes are applicable to
Indefinite-Delivery Requirements, and
Indefinite-Quantity, type contracts
where issuance of a task or delivery
order is placed pursuant to FAR Subpart
16.5. The purpose of this statute is to
improve opportunities for competition
VerDate Aug<31>2005
18:29 Sep 16, 2008
Jkt 214001
through fair opportunity, transparency
and accountability in contracting.
1. Limitation on single award task or
delivery order contracts greater than
$100 million. Section 843 states that no
task or delivery order contract in an
amount estimated to exceed $100
million (including all options) may be
awarded to a single source unless the
head of the agency determines in
writing that—
a. The task or delivery orders
expected under the contract are so
integrally related that only a single
source can reasonably perform the work;
b. The contract provides only for firmfixed price task or delivery orders;
c. Only one source is qualified and
capable of performing the work at a
reasonable price to the Government; or
d. It is necessary in the public interest
to award the contract to a single source
due to exceptional circumstances.
The agency head must also notify
Congress within 30 days after making
the determination in the public interest.
The objective of this provision is to
place greater emphasis on awarding
multiple award contracts and enhancing
the fair opportunity provisions within
FAR Subpart 16.5. Competition of
orders leads to improved contractor
performance, stimulation of
technological solutions, and reduction
of costs over time. The tenets of this
provision strike at the core of enhancing
competition and ensuring competition
continues to exist even after award of
the initial contract vehicles.
Notwithstanding the limitation on
single awards, there are occasions when
a single award is necessary. For these
occasions, Section 843 authorizes
exceptions for awarding single award
task or delivery order contracts that
exceed $100 million.
2. Enhanced competition for orders in
excess of $5 million. This Section 843
requirement emphasizes the importance
of following certain specified
procedures in the competitive
placement of task or delivery orders
with an expected value in excess of $5
million (including options) placed
against multiple award contracts. All
awardees are to be given a fair
opportunity to be considered for each
order, at a minimum, a notice of the
order with a clear statement of
requirements, a reasonable response
period, disclosure of the significant
evaluation factors and subfactors, and
where award is made on a best value
basis, a statement documenting the basis
for award and the relative importance of
quality and price or cost factors. Section
843 also provides an opportunity for a
vendor to request a debriefing on orders
valued over $5 million. The goal is to
PO 00000
Frm 00021
Fmt 4701
Sfmt 4700
54009
improve the transparency and
accountability of agency award
decisions. The new requirements apply
to orders on existing contracts, as well
as on new contracts.
3. Protest of orders greater than $10
million. This Section 843 requirement
provides a mechanism to protest task or
delivery orders valued in excess of $10
million (including options) under
multiple award contracts and states that
the Comptroller General shall have
exclusive jurisdiction over such
protests. In particular, protests are
authorized on the grounds that—
(a) The order increases the scope,
period, or maximum value of the
contract under which the order is
issued; or
(b) As a matter of right for orders
valued in excess of $10 million. This
provision provides for greater
accountability, oversight and discipline
within the Federal acquisition
framework, when coupled with the
requirement of post award debriefings.
The existing requirement to protest
orders under section 16.505(a)(9) and
the newly added requirement for orders
greater than $10 million expire May 27,
2011, unless extended by a new statute.
The protest authority applies to orders
on existing contracts, as well as on new
contracts.
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 interim rule is not expected 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 this rule does not revise or
change existing regulations pertaining to
small business concerns seeking
Government contracts. Therefore, an
Initial Regulatory Flexibility Analysis
has not been performed. The Councils
will consider comments from small
entities concerning the affected FAR
Part 16 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. (FAC 2005–27, FAR
case 2008–006), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
FAR do not impose information
collection requirements that require the
approval of the Office of Management
E:\FR\FM\17SER3.SGM
17SER3
54010
Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations
and Budget under 44 U.S.C. 3501, et
seq.
3. Amend section 16.504 by removing
from paragraph (a)(4)(v) ‘‘16.505(b)(5)’’
and adding ‘‘16.505(b)(6)’’ in its place;
and adding paragraph (c)(1)(ii)(D) to
read as follows:
■
D. Determination to Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because provisions
of the Fiscal Year 2008 National Defense
Authorization Act Section 843 go into
effect on May 27, 2008. The Councils
believe that the interim rule in the FAR
will provide the contracting officer the
relevant regulatory guidance needed
when addressing requirements outlined
in this notice. The rule will also benefit
industry in regards to the requirements
for strengthening competition among
orders, and the ability to protest orders.
However, pursuant to Pub. L. 98–577
and FAR 1.501, the Councils will
consider public comments received in
response to this interim rule in the
formation of the final rule.
List of Subjects in 48 CFR Part 16
Government procurement.
Dated: September 9, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 16 as set forth
below:
■
PART 16—TYPES OF CONTRACTS
1. The authority citation for 48 CFR
part 16 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).
2. Amend section 16.503 by revising
paragraph (b) to read as follows:
■
16.503
Requirements contracts.
pwalker on PROD1PC71 with RULES3
*
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*
(b) Application. (1) A requirements
contract may be appropriate for
acquiring any supplies or services when
the Government anticipates recurring
requirements but cannot predetermine
the precise quantities of supplies or
services that designated Government
activities will need during a definite
period.
(2) No requirements contract in an
amount estimated to exceed $100
million (including all options) may be
awarded to a single source unless a
determination is executed in accordance
with 16.504(c)(1)(ii)(D).
*
*
*
*
*
VerDate Aug<31>2005
18:29 Sep 16, 2008
Jkt 214001
16.504
Indefinite-quantity contracts.
*
*
*
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*
(c) * * *
(1) * * *
(ii) * * *
(D)(1) No task or delivery order
contract in an amount estimated to
exceed $100 million (including all
options) may be awarded to a single
source unless the head of the agency
determines in writing that—
(i) The task or delivery orders
expected under the contract are so
integrally related that only a single
source can reasonably perform the work;
(ii) The contract provides only for
firm-fixed price (see 16.202) task or
delivery orders for—
(A) Products for which unit prices are
established in the contract; or
(B) Services for which prices are
established in the contract for the
specific tasks to be performed;
(iii) Only one source is qualified and
capable of performing the work at a
reasonable price to the Government; or
(iv) It is necessary in the public
interest to award the contract to a single
source due to exceptional
circumstances.
(2) The head of the agency must notify
Congress within 30 days after any
determination under paragraph
(c)(1)(ii)(D)(1)(iv) of this section.
(3) The requirement for a
determination for a single award
contract greater than $100 million
applies in addition to the requirements
of Subpart 6.3.
*
*
*
*
*
■ 4. Amend section 16.505 by—
■ a. Revising paragraph (a)(9);
■ b. Adding to the end of the fourth
sentence before the period of paragraph
(b)(1)(ii) ‘‘and the order does not exceed
$5 million’’;
■ c. Redesignating paragraph (b)(1)(iii)
as (b)(1)(iv); and adding a new
paragraph (b)(1)(iii); and
■ d. Redesignating paragraphs (b)(4) and
(b)(5) as paragraphs (b)(5) and (b)(6);
and adding a new paragraph (b)(4).
■ The revised text reads as follows:
16.505
Ordering.
(a) * * *
(9)(i) No protest under Subpart 33.1 is
authorized in connection with the
issuance or proposed issuance of an
order under a task-order contract or
delivery-order contract, except for—
(A) A protest on the grounds that the
order increases the scope, period, or
maximum value of the contract; or
PO 00000
Frm 00022
Fmt 4701
Sfmt 4700
(B) A protest of an order valued in
excess of $10 million. Protests of orders
in excess of $10 million may only be
filed with the Government
Accountability Office, in accordance
with the procedures at 33.104.
(ii) The authority to protest the
placement of an order under this
subpart expires on May 27, 2011. (10
U.S.C. 2304a(d) and 2304c(d), and 41
U.S.C. 253h(d) and 253j(d)).
(b) * * *
(1) * * *
(iii) Orders exceeding $5 million. For
task or delivery orders in excess of $5
million, the requirement to provide all
awardees a fair opportunity to be
considered for each order shall include,
at a minimum—
(A) A notice of the task or delivery
order that includes a clear statement of
the agency’s requirements;
(B) A reasonable response period;
(C) Disclosure of the significant
factors and subfactors, including cost or
price, that the agency expects to
consider in evaluating proposals, and
their relative importance;
(D) Where award is made on a best
value basis, a written statement
documenting the basis for award and
the relative importance of quality and
price or cost factors; and
(E) An opportunity for a postaward
debriefing in accordance with paragraph
(b)(4) of this section.
*
*
*
*
*
(4) Postaward Notices and Debriefing
of Awardees for Orders Exceeding $5
million. The contracting officer shall
notify unsuccessful awardees when the
total price of a task or delivery order
exceeds $5 million.
(i) The procedures at 15.503(b)(1)
shall be followed when providing
postaward notification to unsuccessful
awardees.
(ii) The procedures at 15.506 shall be
followed when providing postaward
debriefing to unsuccessful awardees.
(iii) A summary of the debriefing shall
be included in the task or delivery order
file.
*
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[FR Doc. E8–21379 Filed 9–16–08; 8:45 am]
BILLING CODE 6820–EP–S
E:\FR\FM\17SER3.SGM
17SER3
]]>Agencies
[Federal Register Volume 73, Number 181 (Wednesday, September 17, 2008)]
[Rules and Regulations]
[Pages 54008-54010]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-21379]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005-27; FAR Case 2008-006; Item IX; Docket 2008-01, Sequence 5]
RIN 9000-AL05
Federal Acquisition Regulation; FAR Case 2008-006, Enhanced
Competition for Task and Delivery Order Contracts--Section 843 of the
Fiscal Year 2008 National Defense Authorization Act
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Fiscal Year 2008 National Defense Authorization Act, Section 843
``Enhanced Competition for Task and Delivery Order Contracts'' (FY08
NDAA). Section 843 of the FY08 NDAA stipulates several requirements
regarding enhancing competition within Federal contracting.
DATES: Effective Date: September 17, 2008.
Applicability date: FAR 16.503 and 16.504, as amended by this rule,
are applicable to single award task or delivery order contracts awarded
on or after May 27, 2008. FAR 16.505, as amended by this rule, is
applicable to orders awarded on or after May 27, 2008 on existing
contracts as well as new contracts.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before November 17, 2008 to be considered in
the formulation of a final rule.
[[Page 54009]]
ADDRESSES: Submit comments identified by FAC 2005-27, FAR case 2008-
006, by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-006'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-006. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-006'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-27, FAR
case 2008-006, 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: Mr. William Clark, Procurement
Analyst, at (202) 219-1813 for clarification of content. Please cite
FAC 2005-27, FAR case 2008-006. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
The Fiscal Year 2008 National Defense Authorization Act (Pub. L.
110-181), Section 843 ``Enhanced Competition for Task and Delivery
Order Contracts'' includes several requirements regarding enhancing
competition within the Federal contracting framework. The provisions of
Section 843 include: (1) Limitation on single award task and delivery
order contracts greater than $100 million; (2) Enhanced competition for
task and delivery orders in excess of $5 million; and (3) Protest on
orders on the grounds that the order increases the scope, period,
maximum value of the contract under which the order is issued; or
valued in excess of $10 million.
The FAR changes are applicable to Indefinite-Delivery Requirements,
and Indefinite-Quantity, type contracts where issuance of a task or
delivery order is placed pursuant to FAR Subpart 16.5. The purpose of
this statute is to improve opportunities for competition through fair
opportunity, transparency and accountability in contracting.
1. Limitation on single award task or delivery order contracts
greater than $100 million. Section 843 states that no task or delivery
order contract in an amount estimated to exceed $100 million (including
all options) may be awarded to a single source unless the head of the
agency determines in writing that--
a. The task or delivery orders expected under the contract are so
integrally related that only a single source can reasonably perform the
work;
b. The contract provides only for firm-fixed price task or delivery
orders;
c. Only one source is qualified and capable of performing the work
at a reasonable price to the Government; or
d. It is necessary in the public interest to award the contract to
a single source due to exceptional circumstances.
The agency head must also notify Congress within 30 days after
making the determination in the public interest. The objective of this
provision is to place greater emphasis on awarding multiple award
contracts and enhancing the fair opportunity provisions within FAR
Subpart 16.5. Competition of orders leads to improved contractor
performance, stimulation of technological solutions, and reduction of
costs over time. The tenets of this provision strike at the core of
enhancing competition and ensuring competition continues to exist even
after award of the initial contract vehicles. Notwithstanding the
limitation on single awards, there are occasions when a single award is
necessary. For these occasions, Section 843 authorizes exceptions for
awarding single award task or delivery order contracts that exceed $100
million.
2. Enhanced competition for orders in excess of $5 million. This
Section 843 requirement emphasizes the importance of following certain
specified procedures in the competitive placement of task or delivery
orders with an expected value in excess of $5 million (including
options) placed against multiple award contracts. All awardees are to
be given a fair opportunity to be considered for each order, at a
minimum, a notice of the order with a clear statement of requirements,
a reasonable response period, disclosure of the significant evaluation
factors and subfactors, and where award is made on a best value basis,
a statement documenting the basis for award and the relative importance
of quality and price or cost factors. Section 843 also provides an
opportunity for a vendor to request a debriefing on orders valued over
$5 million. The goal is to improve the transparency and accountability
of agency award decisions. The new requirements apply to orders on
existing contracts, as well as on new contracts.
3. Protest of orders greater than $10 million. This Section 843
requirement provides a mechanism to protest task or delivery orders
valued in excess of $10 million (including options) under multiple
award contracts and states that the Comptroller General shall have
exclusive jurisdiction over such protests. In particular, protests are
authorized on the grounds that--
(a) The order increases the scope, period, or maximum value of the
contract under which the order is issued; or
(b) As a matter of right for orders valued in excess of $10
million. This provision provides for greater accountability, oversight
and discipline within the Federal acquisition framework, when coupled
with the requirement of post award debriefings. The existing
requirement to protest orders under section 16.505(a)(9) and the newly
added requirement for orders greater than $10 million expire May 27,
2011, unless extended by a new statute. The protest authority applies
to orders on existing contracts, as well as on new contracts.
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 interim rule is not expected 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 this
rule does not revise or change existing regulations pertaining to small
business concerns seeking Government contracts. Therefore, an Initial
Regulatory Flexibility Analysis has not been performed. The Councils
will consider comments from small entities concerning the affected FAR
Part 16 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. (FAC
2005-27, FAR case 2008-006), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management
[[Page 54010]]
and Budget under 44 U.S.C. 3501, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because provisions of the Fiscal Year 2008 National
Defense Authorization Act Section 843 go into effect on May 27, 2008.
The Councils believe that the interim rule in the FAR will provide the
contracting officer the relevant regulatory guidance needed when
addressing requirements outlined in this notice. The rule will also
benefit industry in regards to the requirements for strengthening
competition among orders, and the ability to protest orders. However,
pursuant to Pub. L. 98-577 and FAR 1.501, the Councils will consider
public comments received in response to this interim rule in the
formation of the final rule.
List of Subjects in 48 CFR Part 16
Government procurement.
Dated: September 9, 2008.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as set forth below:
PART 16--TYPES OF CONTRACTS
0
1. The authority citation for 48 CFR part 16 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).
0
2. Amend section 16.503 by revising paragraph (b) to read as follows:
16.503 Requirements contracts.
* * * * *
(b) Application. (1) A requirements contract may be appropriate for
acquiring any supplies or services when the Government anticipates
recurring requirements but cannot predetermine the precise quantities
of supplies or services that designated Government activities will need
during a definite period.
(2) No requirements contract in an amount estimated to exceed $100
million (including all options) may be awarded to a single source
unless a determination is executed in accordance with
16.504(c)(1)(ii)(D).
* * * * *
0
3. Amend section 16.504 by removing from paragraph (a)(4)(v)
``16.505(b)(5)'' and adding ``16.505(b)(6)'' in its place; and adding
paragraph (c)(1)(ii)(D) to read as follows:
16.504 Indefinite-quantity contracts.
* * * * *
(c) * * *
(1) * * *
(ii) * * *
(D)(1) No task or delivery order contract in an amount estimated to
exceed $100 million (including all options) may be awarded to a single
source unless the head of the agency determines in writing that--
(i) The task or delivery orders expected under the contract are so
integrally related that only a single source can reasonably perform the
work;
(ii) The contract provides only for firm-fixed price (see 16.202)
task or delivery orders for--
(A) Products for which unit prices are established in the contract;
or
(B) Services for which prices are established in the contract for
the specific tasks to be performed;
(iii) Only one source is qualified and capable of performing the
work at a reasonable price to the Government; or
(iv) It is necessary in the public interest to award the contract
to a single source due to exceptional circumstances.
(2) The head of the agency must notify Congress within 30 days
after any determination under paragraph (c)(1)(ii)(D)(1)(iv) of this
section.
(3) The requirement for a determination for a single award contract
greater than $100 million applies in addition to the requirements of
Subpart 6.3.
* * * * *
0
4. Amend section 16.505 by--
0
a. Revising paragraph (a)(9);
0
b. Adding to the end of the fourth sentence before the period of
paragraph (b)(1)(ii) ``and the order does not exceed $5 million'';
0
c. Redesignating paragraph (b)(1)(iii) as (b)(1)(iv); and adding a new
paragraph (b)(1)(iii); and
0
d. Redesignating paragraphs (b)(4) and (b)(5) as paragraphs (b)(5) and
(b)(6); and adding a new paragraph (b)(4).
0
The revised text reads as follows:
16.505 Ordering.
(a) * * *
(9)(i) No protest under Subpart 33.1 is authorized in connection
with the issuance or proposed issuance of an order under a task-order
contract or delivery-order contract, except for--
(A) A protest on the grounds that the order increases the scope,
period, or maximum value of the contract; or
(B) A protest of an order valued in excess of $10 million. Protests
of orders in excess of $10 million may only be filed with the
Government Accountability Office, in accordance with the procedures at
33.104.
(ii) The authority to protest the placement of an order under this
subpart expires on May 27, 2011. (10 U.S.C. 2304a(d) and 2304c(d), and
41 U.S.C. 253h(d) and 253j(d)).
(b) * * *
(1) * * *
(iii) Orders exceeding $5 million. For task or delivery orders in
excess of $5 million, the requirement to provide all awardees a fair
opportunity to be considered for each order shall include, at a
minimum--
(A) A notice of the task or delivery order that includes a clear
statement of the agency's requirements;
(B) A reasonable response period;
(C) Disclosure of the significant factors and subfactors, including
cost or price, that the agency expects to consider in evaluating
proposals, and their relative importance;
(D) Where award is made on a best value basis, a written statement
documenting the basis for award and the relative importance of quality
and price or cost factors; and
(E) An opportunity for a postaward debriefing in accordance with
paragraph (b)(4) of this section.
* * * * *
(4) Postaward Notices and Debriefing of Awardees for Orders
Exceeding $5 million. The contracting officer shall notify unsuccessful
awardees when the total price of a task or delivery order exceeds $5
million.
(i) The procedures at 15.503(b)(1) shall be followed when providing
postaward notification to unsuccessful awardees.
(ii) The procedures at 15.506 shall be followed when providing
postaward debriefing to unsuccessful awardees.
(iii) A summary of the debriefing shall be included in the task or
delivery order file.
* * * * *
[FR Doc. E8-21379 Filed 9-16-08; 8:45 am]
BILLING CODE 6820-EP-S
