Federal Acquisition Regulation; FAR Case 2007-008, Limiting Length of Noncompetitive Contracts in “Unusual and Compelling Urgency” Circumstances, 52849-52851 [E9-24565]
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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations
and other disaster or emergency relief
activities established in accordance with
6 U.S.C. 796, Registry of Disaster
Response Contractors. The Registry
contains information on contractors
who are willing to perform disaster or
emergency relief activities within the
United States and its outlying areas. The
Registry is located at www.ccr.gov and
alternately through the FEMA website at
https://www.fema.gov/business/
index.shtm. (See 26.205).
*
*
*
*
*
PART 4—ADMINISTRATIVE MATTERS
4.1104
[Redesignated as 4.1105]
requirements of the agency in
furtherance of—
(A) A contingency operation or
defense against or recovery from
nuclear, biological, chemical, or
radiological attack; and
(B) Disaster relief to include debris
removal, distribution of supplies,
reconstruction, and other disaster or
emergency relief activities. (See 26.205).
*
*
*
*
*
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
13.201
[Amended]
■
7. Amend section 13.201 by removing
from paragraph (d) ‘‘4.1104’’ and adding
‘‘4.1105’’ in its place.
4.1104
PART 18—EMERGENCY
ACQUISITIONS
■
3. Redesignate section ‘‘4.1104’’ as
section ‘‘4.1105’’, and add a new section
‘‘4.1104’’ to read as follows:
Disaster Response Registry.
Contracting officers shall consult the
Disaster Response Registry at
www.ccr.gov when contracting for
debris removal, distribution of supplies,
reconstruction, and other disaster or
emergency relief activities inside the
United States and outlying areas. (See
26.205).
PART 7—ACQUISITION PLANNING
4. Amend section 7.103 by adding
paragraph (v) to read as follows:
■
7.103
Agency-head responsibilities.
*
*
*
*
*
(v) Ensuring that contracting officers
consult the Disaster Response Registry
at www.ccr.gov as a part of acquisition
planning for debris removal,
distribution of supplies, reconstruction,
and other disaster or emergency relief
activities inside the United States and
outlying areas. (See 26.205).
PART 10—MARKET RESEARCH
5. Amend section 10.000 by revising
the second sentence to read as follows:
■
10.000
Scope of part.
* * * This part implements the
requirements of 41 U.S.C. 253a(a)(1), 41
U.S.C. 264b, 10 U.S.C. 2377, and 6
U.S.C. 796.
■ 6. Amend section 10.001 by revising
paragraph (a)(2)(v) to read as follows:
mstockstill on DSKH9S0YB1PROD with RULES2
10.001
Policy.
(a) * * *
(2) * * *
(v) On an ongoing basis, and to the
maximum extent practicable, take
advantage of commercially available
market research methods in order to
identify effectively the capabilities, of
small businesses and new entrants into
Federal contracting, that are available in
the marketplace for meeting the
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17:52 Oct 13, 2009
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8. Revise section 18.102 to read as
follows:
Central contractor registration.
Contractors are not required to be
registered in the Central Contractor
Registration (CCR) for contracts awarded
to support unusual and compelling
needs or emergency acquisitions. (See
4.1102). However, contractors are
required to register with CCR in order to
gain access to the Disaster Response
Registry. Contracting officers shall
consult the Disaster Response Registry
at www.ccr.gov to determine the
availability of contractors for debris
removal, distribution of supplies,
reconstruction, and other disaster or
emergency relief activities inside the
United States and outlying areas. (See
26.205).
PART 26—OTHER SOCIOECONOMIC
PROGRAMS
26.205
[Redesignated as 26.206]
9. Redesignate section ‘‘26.205’’ as
section ‘‘26.206’’ and add a new section
‘‘26.205’’ to read as follows:
■
26.205
Disaster Response Registry.
(a) Contracting officers shall consult
the Disaster Response Registry at
www.ccr.gov to determine the
availability of contractors for debris
removal, distribution of supplies,
reconstruction, and other disaster or
emergency relief activities inside the
United States and outlying areas.
(b) A list of prospective vendors
voluntarily participating in the Disaster
Response Registry can be retrieved
using the CCR Search tool on the CCR
webpage. These vendors may be
identified by selecting the criteria for
‘‘Disaster Response Contractors’’.
Contractors are required to register with
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
CCR in order to gain access to the
Disaster Response Registry.
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.204–7
[Amended]
10. Amend section 52.204–7 by
removing from the introductory
paragraph ‘‘4.1104’’ and adding
‘‘4.1105’’ in its place.
■
52.226–3
[Amended]
11. Amend section 52.226–3 by
removing from the introductory
paragraph ‘‘26.205(a)’’ and adding
‘‘26.206(a)’’ in its place.
■
52.226–4
[Amended]
12. Amend section 52.226–4 by
removing from the introductory
paragraph ‘‘26.205(b)’’ and adding
‘‘26.206(b)’’ in its place.
■
■
18.102
52849
52.226–5
[Amended]
13. Amend section 52.226–5 by
removing from the introductory
paragraph ‘‘26.205(c)’’ and adding
‘‘26.206(c)’’ in its place.
■
[FR Doc. E9–24554 Filed 10–13–09; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 6
[FAC 2005–37; FAR Case 2007–008; Item
II; Docket 2007-0001, Sequence 14]
RIN 9000–AK90
Federal Acquisition Regulation; FAR
Case 2007–008, Limiting Length of
Noncompetitive Contracts in ‘‘Unusual
and Compelling Urgency’’
Circumstances
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are issuing a final rule
amending the Federal Acquisition
Regulation (FAR) to implement section
862 of the Duncan Hunter National
Defense Authorization Act for Fiscal
Year 2009 (Pub. L. 110–417) and Office
of Federal Procurement Policy (OFPP)
E:\FR\FM\14OCR2.SGM
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52850
Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations
mstockstill on DSKH9S0YB1PROD with RULES2
Administrator’s memorandum of May
31, 2007. The rule limits the length of
contracts awarded noncompetitively
under unusual and compelling urgency
circumstances to the minimum contract
period necessary to meet the
requirements, and no longer than one
year, unless the head of the agency
determines that exceptional
circumstances apply.
DATES: Effective Date: October 14, 2009.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Ernest Woodson, Procurement Analyst,
at (202) 501–3775. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–37, FAR case 2007–008.
SUPPLEMENTARY INFORMATION:
A. Background
The Office of Federal Procurement
Policy (OFPP) Administrator’s
memorandum of May 31, 2007, issued
to Chief Acquisition Officers and Senior
Procurement Executives, proposed
several initiatives, including promoting
competition in Federal acquisition,
challenging any barriers to such
competition, and reinvigorating the role
of the competition advocate. Subsequent
to issuance of the memorandum, OFPP
submitted multiple business cases
proposing FAR changes to strengthen
Federal acquisition competition
policies. These were established as
individual FAR cases. This FAR case
specifically addresses the OFPP
initiative to limit the length of contracts
awarded noncompetitively under the
authorities for unusual and compelling
urgency. DoD, GSA, and NASA
published a proposed rule in the
Federal Register at 73 FR 5784, January
31, 2008. The 60-day comment period
for the proposed rule ended March 31,
2008. Two respondents provided
comments for a total of eight comments.
In October 2008 the Duncan Hunter
National Defense Authorization Act for
Fiscal Year 2009, Pub. L. 110–417, was
enacted. Section 862 of this Act
amended section 303(d) of the Federal
Property and Administrative Services
Act of 1949 (41 U.S.C. 253(d) and 10
U.S.C 2304(d)) to require that contracts
awarded under the authority of 41 U.S.C
252(c)(2) and 10 U.S.C. 2304(c) (FAR
6.302–2, Unusual and compelling
urgency), (1) may not exceed the time
necessary to meet the unusual and
compelling requirements, may not
exceed the time for the agency to enter
into another contract for the required
goods and services through the use of
competitive procedures, and may not
exceed one year unless the head of the
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17:52 Oct 13, 2009
Jkt 220001
agency entering into the contract
determines that exceptional
circumstances apply; and (2) that the
requirements in (1) of this paragraph
apply to any contract in amount greater
than the simplified acquisition
threshold.
The public comments and
requirements of the Act were considered
by the Councils in the formation of this
final rule.
Comment 1: One respondent
recommended that the Councils should
shorten the contract term to not exceed
six months in lieu of the stated ‘‘no
longer than one year.’’
Response: Non-concur. The time
period is required by statute.
Comment 2 and 3: One respondent
stated that the term ‘‘head of the
contracting activity’’ requires
clarification. The respondent urges the
rule refer to the definition for the ‘‘head
of the contracting activity’’ by including
FAR subpart 2.101 in FAR 6.302–2(d).
Another respondent suggested that the
rule specifically state whether or not the
head of the contracting activity’s
authority to approve a period of
performance longer that one year is
delegable.
Response: Non-concur. The National
Defense Authorization Act requires that
the head of the agency make the
determination required by FAR 6.302–
2(d). ‘‘Head of the agency’’ is defined in
FAR subpart 2.101 and does not require
defining in FAR 6.302–2(d).
The rule is silent on whether the
authority may be delegated. However,
FAR 1.108(b) provides that each
authority is delegable unless specifically
stated otherwise.
Comment 4: Both respondents asked
whether the approval process will be
governed by FAR 6.304, which requires
approval by other government officials
depending on the monetary value of the
proposed contract? The respondents
urged that the process be simplified and
duplication of paperwork reduced to
prevent the filing of multiple
justifications and approvals.
Response: The approval process in
6.302–2(d)(2) for the exceptional
circumstances determination is not
governed by FAR 6.304. The approval
levels are different. The requirement for
determining exceptional circumstances
apply is separate from the approval
process at FAR 6.304. The rule requires
the determination be obtained prior to
the award of the contract; or may be
obtained after award when making the
determination prior to award would
unnecessarily delay the acquisition.
Comment 5: The authority of FAR
6.302–2(c)(1) currently allows urgent
and compelling justifications to be
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
‘‘made and approved’’ after contract
award. A respondent suggested that the
new FAR citation 6.302–2(d) be added
to the 6.303 and 6.304 currently
referenced in FAR 6.302–2(c)(1) to make
it clear that this can still be done.
Response: Non-Concur. As stated in
the prior response, the approval process
is not governed by FAR 6.303 or FAR
6.304. The requirement for making the
determination for a performance period
greater than one year, by the head of the
agency, for noncompetitive contracts in
unusual urgency and compelling
circumstances, is separate from the
approval process at FAR 6.304. The rule
provides for the determination for a
performance period greater than one
year to be obtained after contract award
when making the determination prior to
award would unreasonably delay the
acquisition.
Comment 6: One respondent urged
that there be discussion added on the
public availability of approval records
filed by the head of the contracting
activity.
Response: Non-concur. FAR Case
2008–003, Public Disclosure of
Justification and Approval Documents
for Noncompetitive Contracts-Section
844 of the National Defense
Authorization Act for Fiscal Year 2008
(74 CFR 2731, January 15, 2009),
requires the public disclosure of
justification and approval documents
for noncompetitive contracts which is a
statutory requirement by 10 U.S.C. 2304
and 41 U.S.C. 253.
Comment 7: One respondent
requested consideration of the impacts
of subsequent changes to the contract
awarded under the new rule (e.g., an
amendment, a modification, or a followon contract) to the one-year contract
award restriction.
Response: Non-concur. This rule does
not make changes to the existing
regulations regarding use of noncompetitive awards. The contracting
activity must still comply with the
justification requirements at FAR
subpart 6.3 when awarding an out-ofscope modification to a contract, or a
follow-on contract.
Comment 8: Consider a standing
exception for certain multiple year nonseverable services (e.g., a major
acquisition that requires a period of
performance greater than one year in
order to develop or manufacture an end
product).
Response: Non-concur. The rule
provides for any exception to the oneyear limit by having the head of the
agency make the determination for the
longer performance contract period.
This is not a significant regulatory
action and, therefore, was not subject to
E:\FR\FM\14OCR2.SGM
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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations
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 Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not 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 addresses internal agency
procedures and will benefit small
entities by encouraging competition
after a one year performance period,
except when a longer performance
period is properly approved. Therefore,
a Final Regulatory Flexibility Analysis
has not been performed.
contract determines that exceptional
circumstances apply.
(3) The requirements in paragraphs (1)
and (2) of this section shall apply to any
contract in an amount greater than the
simplified acquisition threshold.
(4) The determination of exceptional
circumstances is in addition to the
approval of the justification in 6.304.
(5) The determination may be made
after contract award when making the
determination prior to award would
unreasonably delay the acquisition.
[FR Doc. E9–24565 Filed 10–13–09; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
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. Chapter 35,
et seq.
List of Subjects in 48 CFR Part 6
Government procurement.
Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 6 as set forth below:
■
PART 6—COMPETITION
REQUIREMENTS
1. The authority citation for 48 CFR
part 6 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 6.302–2 by adding
paragraph (d) to read as follows:
■
6.302–2
Unusual and compelling urgency.
mstockstill on DSKH9S0YB1PROD with RULES2
*
*
*
*
*
(d) Period of Performance. The total
period of performance of a contract
awarded using this authority—
(1) May not exceed the time
necessary:
(i) To meet the unusual and
compelling requirements of the work to
be performed under the contract; and
(ii) For the agency to enter into
another contract for the required goods
and services through the use of
competitive procedures.
(2) May not exceed one year unless
the head of the agency entering into the
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17:52 Oct 13, 2009
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48 CFR Parts 12 and 52
[FAC 2005–37; FAR Case 2008–026; Item
III; Docket 2009–0013, Sequence 1]
RIN 9000–AL25
Federal Acquisition Regulation; FAR
Case 2008–026, GAO Access to
Contractor Employees
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have adopted as final,
without change, an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement section
871 of the Duncan Hunter National
Defense Authorization Act for Fiscal
Year 2009 (NDAA) which allows the
Government Accountability Office to
interview current contractor employees
during the audit of the contractor’s
records.
Effective Date: October 14, 2009.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Mr.
Edward Loeb, Director, Contract Policy
Division at (202) 501–0650. For
information pertaining to status or
publication schedules, contact the
Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–37, FAR
case 2008–026.
SUPPLEMENTARY INFORMATION:
DATES:
PO 00000
Frm 00007
Fmt 4701
Sfmt 4700
52851
A. Background
Section 871 of the Duncan Hunter
National Defense Authorization Act for
Fiscal Year 2009 (NDAA) (Pub. L. 110–
417) added language allowing the
Comptroller General to interview
current employees regarding
transactions being examined during an
audit of contracting records. The Act
revises 41 U.S.C. 254d(c)(1) and 10
U.S.C. 2313(c)(1) by inserting before the
period: ‘‘and to interview any current
employee regarding such transactions’’.
To implement the Act, FAR clauses
52.215–2, Audit and Records—
Negotiation, and 52.214–26, Audit and
Records—Sealed Bidding, were
amended to add the required statutory
language. The statute did not specify
that section 871 apply to commercial
item contracts and therefore was not
applied to FAR clause 52.212–5,
Contract Terms and Conditions
Required to Implement Statutes or
Executive Order—Commercial Items.
Section 34 of the Office of Federal
Procurement Policy Act (OFPP), 41
U.S.C. 430, exempts commercial item
acquisitions from new provisions of
law, such as section 871, unless (1) the
law provides criminal or civilian
penalties, (2) the law expressly refers to
41 U.S.C. 430 and states that it applies
to commercial item contracts, or (3) the
FAR Council makes a written
determination that it would not be in
the best interest of the Federal
Government to exempt commercial item
contracts. Thus, this new provision was
added to the list of inapplicable laws at
FAR 12.503(a).
DoD, GSA, and NASA published an
interim rule with a request for
comments in the Federal Register at 74
FR 14649 on March 31, 2009. No
comments were received. The interim
rule is converted to a final rule without
change.
This is a significant regulatory action
and, therefore, was subject to review
under section 6(b) of Executive Order
12886, 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 Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not 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 only
a small number of small businesses are
audited by the Government
Accountability Office (GAO). Currently
E:\FR\FM\14OCR2.SGM
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]]>Agencies
[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52849-52851]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-24565]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 6
[FAC 2005-37; FAR Case 2007-008; Item II; Docket 2007-0001, Sequence
14]
RIN 9000-AK90
Federal Acquisition Regulation; FAR Case 2007-008, Limiting
Length of Noncompetitive Contracts in ``Unusual and Compelling
Urgency'' Circumstances
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are issuing a final rule
amending the Federal Acquisition Regulation (FAR) to implement section
862 of the Duncan Hunter National Defense Authorization Act for Fiscal
Year 2009 (Pub. L. 110-417) and Office of Federal Procurement Policy
(OFPP)
[[Page 52850]]
Administrator's memorandum of May 31, 2007. The rule limits the length
of contracts awarded noncompetitively under unusual and compelling
urgency circumstances to the minimum contract period necessary to meet
the requirements, and no longer than one year, unless the head of the
agency determines that exceptional circumstances apply.
DATES: Effective Date: October 14, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-37, FAR
case 2007-008.
SUPPLEMENTARY INFORMATION:
A. Background
The Office of Federal Procurement Policy (OFPP) Administrator's
memorandum of May 31, 2007, issued to Chief Acquisition Officers and
Senior Procurement Executives, proposed several initiatives, including
promoting competition in Federal acquisition, challenging any barriers
to such competition, and reinvigorating the role of the competition
advocate. Subsequent to issuance of the memorandum, OFPP submitted
multiple business cases proposing FAR changes to strengthen Federal
acquisition competition policies. These were established as individual
FAR cases. This FAR case specifically addresses the OFPP initiative to
limit the length of contracts awarded noncompetitively under the
authorities for unusual and compelling urgency. DoD, GSA, and NASA
published a proposed rule in the Federal Register at 73 FR 5784,
January 31, 2008. The 60-day comment period for the proposed rule ended
March 31, 2008. Two respondents provided comments for a total of eight
comments.
In October 2008 the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009, Pub. L. 110-417, was enacted. Section 862 of
this Act amended section 303(d) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253(d) and 10 U.S.C
2304(d)) to require that contracts awarded under the authority of 41
U.S.C 252(c)(2) and 10 U.S.C. 2304(c) (FAR 6.302-2, Unusual and
compelling urgency), (1) may not exceed the time necessary to meet the
unusual and compelling requirements, may not exceed the time for the
agency to enter into another contract for the required goods and
services through the use of competitive procedures, and may not exceed
one year unless the head of the agency entering into the contract
determines that exceptional circumstances apply; and (2) that the
requirements in (1) of this paragraph apply to any contract in amount
greater than the simplified acquisition threshold.
The public comments and requirements of the Act were considered by
the Councils in the formation of this final rule.
Comment 1: One respondent recommended that the Councils should
shorten the contract term to not exceed six months in lieu of the
stated ``no longer than one year.''
Response: Non-concur. The time period is required by statute.
Comment 2 and 3: One respondent stated that the term ``head of the
contracting activity'' requires clarification. The respondent urges the
rule refer to the definition for the ``head of the contracting
activity'' by including FAR subpart 2.101 in FAR 6.302-2(d). Another
respondent suggested that the rule specifically state whether or not
the head of the contracting activity's authority to approve a period of
performance longer that one year is delegable.
Response: Non-concur. The National Defense Authorization Act
requires that the head of the agency make the determination required by
FAR 6.302-2(d). ``Head of the agency'' is defined in FAR subpart 2.101
and does not require defining in FAR 6.302-2(d).
The rule is silent on whether the authority may be delegated.
However, FAR 1.108(b) provides that each authority is delegable unless
specifically stated otherwise.
Comment 4: Both respondents asked whether the approval process will
be governed by FAR 6.304, which requires approval by other government
officials depending on the monetary value of the proposed contract? The
respondents urged that the process be simplified and duplication of
paperwork reduced to prevent the filing of multiple justifications and
approvals.
Response: The approval process in 6.302-2(d)(2) for the exceptional
circumstances determination is not governed by FAR 6.304. The approval
levels are different. The requirement for determining exceptional
circumstances apply is separate from the approval process at FAR 6.304.
The rule requires the determination be obtained prior to the award of
the contract; or may be obtained after award when making the
determination prior to award would unnecessarily delay the acquisition.
Comment 5: The authority of FAR 6.302-2(c)(1) currently allows
urgent and compelling justifications to be ``made and approved'' after
contract award. A respondent suggested that the new FAR citation 6.302-
2(d) be added to the 6.303 and 6.304 currently referenced in FAR 6.302-
2(c)(1) to make it clear that this can still be done.
Response: Non-Concur. As stated in the prior response, the approval
process is not governed by FAR 6.303 or FAR 6.304. The requirement for
making the determination for a performance period greater than one
year, by the head of the agency, for noncompetitive contracts in
unusual urgency and compelling circumstances, is separate from the
approval process at FAR 6.304. The rule provides for the determination
for a performance period greater than one year to be obtained after
contract award when making the determination prior to award would
unreasonably delay the acquisition.
Comment 6: One respondent urged that there be discussion added on
the public availability of approval records filed by the head of the
contracting activity.
Response: Non-concur. FAR Case 2008-003, Public Disclosure of
Justification and Approval Documents for Noncompetitive Contracts-
Section 844 of the National Defense Authorization Act for Fiscal Year
2008 (74 CFR 2731, January 15, 2009), requires the public disclosure of
justification and approval documents for noncompetitive contracts which
is a statutory requirement by 10 U.S.C. 2304 and 41 U.S.C. 253.
Comment 7: One respondent requested consideration of the impacts of
subsequent changes to the contract awarded under the new rule (e.g., an
amendment, a modification, or a follow-on contract) to the one-year
contract award restriction.
Response: Non-concur. This rule does not make changes to the
existing regulations regarding use of non-competitive awards. The
contracting activity must still comply with the justification
requirements at FAR subpart 6.3 when awarding an out-of-scope
modification to a contract, or a follow-on contract.
Comment 8: Consider a standing exception for certain multiple year
non-severable services (e.g., a major acquisition that requires a
period of performance greater than one year in order to develop or
manufacture an end product).
Response: Non-concur. The rule provides for any exception to the
one-year limit by having the head of the agency make the determination
for the longer performance contract period.
This is not a significant regulatory action and, therefore, was not
subject to
[[Page 52851]]
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 addresses
internal agency procedures and will benefit small entities by
encouraging competition after a one year performance period, except
when a longer performance period is properly approved. Therefore, a
Final Regulatory Flexibility Analysis has not been performed.
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.
Chapter 35, et seq.
List of Subjects in 48 CFR Part 6
Government procurement.
Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 6 as set forth below:
PART 6--COMPETITION REQUIREMENTS
0
1. The authority citation for 48 CFR part 6 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 6.302-2 by adding paragraph (d) to read as follows:
6.302-2 Unusual and compelling urgency.
* * * * *
(d) Period of Performance. The total period of performance of a
contract awarded using this authority--
(1) May not exceed the time necessary:
(i) To meet the unusual and compelling requirements of the work to
be performed under the contract; and
(ii) For the agency to enter into another contract for the required
goods and services through the use of competitive procedures.
(2) May not exceed one year unless the head of the agency entering
into the contract determines that exceptional circumstances apply.
(3) The requirements in paragraphs (1) and (2) of this section
shall apply to any contract in an amount greater than the simplified
acquisition threshold.
(4) The determination of exceptional circumstances is in addition
to the approval of the justification in 6.304.
(5) The determination may be made after contract award when making
the determination prior to award would unreasonably delay the
acquisition.
[FR Doc. E9-24565 Filed 10-13-09; 8:45 am]
BILLING CODE 6820-EP-S
