Federal Acquisition Regulation; 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, 34273-34276 [2010-14216]
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Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Rules and Regulations
(2) If using the GPE directly, select the
‘‘yes’’ radio button for the ‘‘Is this a
Recovery and Reinvestment Act action’’
field on the ‘‘Notice Details’’ form (Step
2) located below the ‘‘NAICS Code’’
field. In addition, enter the word
‘‘Recovery’’ as the first word in the title
field.
(c) In preparing the description
required by 5.207(a)(16), use clear and
concise language to describe the
planned procurement. Use descriptions
of the goods and services (including
construction), that can be understood by
the general public. Avoid the use of
acronyms or terminology that is not
widely understood by the general
public.
■ 3. Amend section 5.705 by revising
the section heading, paragraph (a), the
introductory text of paragraph (b), and
paragraph (c) to read as follows:
5.705
Publicizing postaward.
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(a)(1) Publicize the award notice for
any action exceeding $500,000, funded
in whole or in part by the Recovery Act,
including—
(i) Contracts;
(ii) Modifications to existing
contracts;
(iii) Orders which are issued under
task or delivery order contracts; and
(iv) Modifications to orders under task
or delivery order contracts.
(2) Contracting officers shall identify
contract actions, funded in whole or in
part by the Recovery Act, by using the
following instructions which are also
available in the Recovery FAQS under
‘‘Buyers/Engineers’’ at the
Governmentwide Point of Entry (GPE)
(https://www.fedbizopps.gov):
(i) If submitting notices electronically
via ftp or email, enter the word
‘‘Recovery’’ as the first word in the title
field.
(ii) If using the GPE directly, select
the ‘‘yes’’ radio button for the ‘‘Is this a
Recovery and Reinvestment Act action’’
field on the ‘‘Notice Details’’ form (Step
2) located below the ‘‘NAICS Code’’
field. In addition, enter the word
‘‘Recovery’’ as the first word in the title
field.
(3) In preparing the description
required by 5.207(a)(16), use clear and
concise language to describe the
planned procurement. Use descriptions
of the goods and services (including
construction), that can be understood by
the general public. Avoid the use of
acronyms or terminology that is not
widely understood by the general
public.
(b) Regardless of dollar value, if the
contract action, including all
modifications and orders under task or
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delivery order contracts, is not both
fixed–price and competitively awarded,
publicize the award notice and include
in the description the rationale for using
other than a fixed–priced and/or
competitive approach. Include in the
description a statement specifically
noting if the contract action was not
awarded competitively, or was not
fixed–price, or was neither competitive
nor fixed–price. These notices and the
rationale will be available to the public
at the GPE, so do not include any
proprietary information or information
that would compromise national
security. The following table provides
examples for when a rationale is
required.
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(c) Contracting officers shall use the
instructions available in the Recovery
FAQs under ‘‘Buyers/Engineers’’ at the
GPE (https://www.fedbizopps.gov) to
identify actions funded in whole or in
part by the Recovery Act.
[FR Doc. 2010–14220 Filed 6–15–10; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 5, 6, 13, and 24
[FAC 2005–42; FAR Case 2008–003 Item IV;
Docket 2008–0001, Sequence 27]
RIN 9000–AL13
Federal Acquisition Regulation; 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
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, with
changes, an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement the National Defense
Authorization Act for Fiscal Year 2008,
Section 844 ‘‘Public Disclosure of
Justification and Approval Documents
for Noncompetitive Contracts’’ (FY08
NDAA). Section 844 of the FY08 NDAA
stipulates the requirements regarding
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34273
the public availability of justifications
and approval documents after the award
of Federal contracts, except for
information exempt from public
disclosure.
DATES:
Effective Date: July 16, 2010.
FOR FURTHER INFORMATION CONTACT:
Ernest Woodson, Procurement Analyst,
at (202) 501–3775, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–42, FAR
Case 2008–003.
SUPPLEMENTARY INFORMATION:
A. Background
The National Defense Authorization
Act for Fiscal Year 2008, Pub. L. 110–
181, Section 844, entitled ‘‘Public
Disclosure of Justification and Approval
Documents for Noncompetitive
Contracts,’’ amends 10 U.S.C. 2304 and
41 U.S.C. 253 regarding procurements
made under subsection (c) (i.e., other
than competitive procedures) to require
public availability of the justification
and approval (J&A) documents after
contract award, except for information
exempt from public disclosure under 5
U.S.C. 552. The provisions of section
844 require the head of an executive
agency to make certain J&A documents
relating to the use of noncompetitive
procedures in contracting available on
the website of an agency and through a
governmentwide website selected by the
Administrator for Federal Procurement
Policy (OFPP) within 14 days of
contract award. In the case of
noncompetitive contracts awarded on
the basis of unusual and compelling
urgency, the documents must be posted
within 30 days of contract award. The
Competition in Contracting Act (Pub. L.
98–369) already requires that such J&A
documents be made available for public
inspection, subject to the exemptions
from public disclosure provided in the
Freedom of Information Act (FOIA) (5
U.S.C. 552).
The interim rule was published in the
Federal Register at 74 FR 2731 on
January 15, 2009, with an effective date
of February 17, 2009, and a request for
comments by March 16, 2009.
Nine respondents submitted nineteen
comments in response to the interim
rule. There were six categories of
comments. These categories were
applicability, exceptions, Federal
Business Opportunities (FedBizOpps),
protests, FOIA, and veterans.
Below are the comments received on
the interim rule along with the
responses developed by the Councils.
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Applicability:
1. Comment: The rule states that the
posting requirement applies to all
contracts awarded under FAR 6.303–1
J&A documents. Is the intent to include
sole-source justifications prepared
under FAR subpart 13.5?
Response: Section 844 of the FY08
NDAA requires posting of documents
containing the J&A required by
subsection (f)(1) of 10 U.S.C. 2304 or 41
U.S.C. 253. Subsection (g) of those
statutes provides for streamlined
procedures that promote efficiency and
economy in contracting and avoid
unnecessary burdens for agencies and
contractors for purchases not greater
than the simplified acquisition
threshold and for purchases made
pursuant to the commercial-items test
program. Accordingly, FAR 6.001 states
that part 6 does not apply to
acquisitions for contracts awarded using
the simplified acquisition procedures
and adds a reference to FAR 13.501 for
the requirements pertaining to solesource acquisitions of commercial items
over the simplified acquisition
threshold under subpart 13.5. FAR
13.501 implemented 10 U.S.C. 4052(g),
which stipulates that an executive
agency may not conduct a purchase on
a sole-source basis unless the need to do
so is justified in writing and approved
in accordance with 10 U.S.C. 2304 or 41
U.S.C. 253. Thus, 10 U.S.C. 4052(g)
imposed a justification process on solesource actions over the simplified
acquisition threshold done under the
commercial-items test program.
Similarly, though section 844 does not
require posting of the FAR 13.501 J&As
document, the Councils recommend, as
a matter of policy, that J&As required by
FAR 13.501 also be posted on
FedBizOpps. Such posting is consistent
with the President’s focus on creating a
‘‘New Era of Open Government’’ and is
reasonable because these actions exceed
the simplified acquisition threshold and
posting could enhance opportunities for
competition on future requirements of
such commercial items. It is also
consistent with the existing requirement
(FAR 5.102(a)(6)) to post a brand name
justification in FedBizOpps along with
the solicitation. Therefore, the rule has
been revised to include the requirement
to post FAR 13.501 justifications.
2. Comment: The rule states that the
posting requirement applies to all
contracts awarded under FAR 6.303–1
J&A document. Is the intent to include
limited-source justifications for orders
placed under Federal Supply Schedules
in accordance with FAR 8.405–6?
Response: The posting requirement of
Section 844 of the FY08 NDAA pertains
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to J&As executed pursuant to FAR
subpart 6.3, it does not apply to the
placement of orders under the Federal
Supply Schedules. However, a separate
FAR Case will implement section 843 of
the NDAA, which requires posting of
sole source task or delivery orders in
excess of the Simplified Acquisition
Threshold that are placed against
multiple award contracts.
Exceptions:
3. Comment: Will there be a dollar
threshold for when we need to post the
J&A to the FedBizOpps website?
Response: There is no dollar
threshold that triggers the requirement
to post the J&A.
4. Comment: If a purchase meets an
exception at FAR 5.202 does it need to
be posted? Recommend making
exceptions to posting J&A consistent
with the FAR exceptions to posting
synopses (FAR 5.202), solicitation (FAR
5.102(a)(5)), or contract awards (FAR
5.301(b)).
Response: The exceptions provided at
FAR 5.102, 5.202, and 5.301 all derive
from section 18 of the Office of Federal
Procurement Policy (OFPP) Act. The
requirement to make the J&A available
for public inspection is not a new
requirement, but previously
implemented 10 U.S.C. 2304(f)(4) and
41 U.S.C. 253(f)(4). Only the
requirement to post the J&A is new.
Section 844 of the FY08 NDAA requires
posting of the J&A and provides for
exclusion of information exempt from
public disclosure under section 552 of
Title 5 U.S.C. (FOIA). As such, the FAR
exceptions cannot automatically be
applied to the posting of J&A. The
Councils revised FAR 6.305 to add a
new paragraph (e) to recognize that, in
addition to redacting information in the
J&A consistent with FOIA exemptions,
there may also be cases where the J&A
itself would be exempted from being
posted per the FOIA exemptions. One
such instance is when posting the J&A
would disclose the executive agency’s
needs and disclosure would
compromise national security or create
other security risks. The Councils added
this specific exception to the FAR
because it is clearly consistent with
FOIA and FAR 5.102, 5.202, and 5.301.
Any other FOIA exemption that might
authorize not posting the J&A must be
determined in accordance with FAR
subpart 24.2.
5. Comment: Under FAR 5.202(a),
there are several items that would
prevent the agency from posting
information available on the web for a
pre-solicitation announcement.
Currently, there is no such exception to
posting the J&A, which can lead to a
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situation where the J&A gets posted
while the award does not. When this
happens, FedBizOpps rejects posting
the J&A because it can’t find the related
award. FedBizOpps also rejects the J&A
when a previously posted award has
been placed in archive status.
Response: The Councils have
confirmed that FedBizOpps allows for
the posting of a J&A even if there was
no prior synopsis.
6. Comment: A major concern for
members of the intelligence community
regards the potential security threat
from publication of even unclassified
material. Publicizing systems designed
with the broader community in mind
cannot always protect the sensitive but
unclassified nature of the intelligence
business. If this new requirement cannot
be deleted in whole, then they request
an exemption to the public disclosure
requirement for the Office of the
Director of National Intelligence until an
ancillary classified database is
developed for the intelligence
community and others with sensitive
information.
Response: The contracting officer
already has the authority to determine
when not to disclose information that
would compromise national security or
create other security risks, for example
per FOIA exemptions 1 and 7. However,
as explained in the response to
comment 4, the Councils did revise FAR
6.305 to recognize that, in addition to
redacting information in the J&A
consistent with FOIA exemptions, there
may also be cases where the J&A itself
would be exempted from being posted
per the FOIA exemptions.
Websites:
7. Comment: Is the award number a
fill in-the-blank for FedBizOpps? Will
the award date be a fill in-the-box? It
would be helpful so vendors know that
it was already awarded.
Response: When the Government is
posting a J&A to FedBizOpps, it has the
option of associating the J&A with an
existing award notice in the system. In
this case, the system will automatically
populate the contract award number
and award date. Otherwise, the
Government will need to manually enter
the contract award number and award
date into the J&A notice form. (Note: An
award number is not required for a
brand-name J&A since a brand name
J&A must be posted with the
solicitation.)
Protests:
8. Comment: When a vendor sees a
J&A posted, will they have protest
rights?
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Response: The statute did not change
any protest rights, including any
timeliness requirements. The rationale
for posting is just to make the process
more transparent.
9. Comment: One commenter
recommends the rule should recognize
the date publicized on FedBizOpps as
the date upon which a basis of protest
is known under GAO rules of
procedure. Another commenter states
that if the protest timeliness rules are
revised, there will likely be more
protests.
Response: Timeliness requirements
have not been revised by the statute.
The Councils cannot unilaterally change
either the Government Accounting
Office (GAO) timeliness rules or Court
of Federal Claims statutory jurisdiction.
This rule is merely to make the process
more transparent and help contractors
to be apprised of possible future
requirements that in the past were
awarded on a sole source basis.
10. Comment: The commenter wants
to know why the Government is waiting
up to 14 days as this will not help
protesters compete, and if a protest is
lodged, could result in delays and
additional cost to the Government.
Response: The intent is not to help
protesters compete for the current
requirement, but for the future. Section
844 of the FY08 NDAA, which this rule
implements, states that the J&A must be
made publicly available within 14 days
after contract award.
Freedom of Information Act (FOIA):
11. Comment: One commenter stated
FAR 6.305(c) requires contracting
officers to be guided by FOIA
exemptions. FOIA procedures address
very specific mechanisms and timelines
for review and release of information.
Referencing FOIA procedures implies
that the contracting officer should
consult with the sole source contractor
prior to release of information. The
commenter questions whether such a
step could be accomplished within the
14-day to 30-day requirement. Another
commenter recommends that
contractors be given the right to review
J&A documents prior to release to
ensure no proprietary information is
included in the document, consistent
with FOIA.
Response: These commenters are
referring to the requirements of
Executive Order 12600, that agencies
establish procedures to notify
submitters of records containing
confidential commercial information,
the disclosure of which the department
or agency has reason to believe could
reasonably be expected to cause
substantial competitive harm, when
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those records are requested under the
FOIA.
This executive order applies to the
FOIA process that is used to determine
financial information that might be
exempt from public disclosure. Section
844 of the FY08 NDAA states only that
the requirement to post J&As does not
require the public availability of
information that is exempt from public
disclosure under FOIA. It does not
mandate the FOIA process.
Additionally, FAR 5.102(a)(6) and
5.705(b) also require posting of J&As for
brand name and the rationale for noncompetitive awards in support of the
Recovery Act, respectively. The FAR
requires that these documents be
redacted as necessary to preclude
disclosure of proprietary information or
information that would otherwise
compromise national security. In these
instances, the FOIA exemptions to
public disclosure apply, but not the
FOIA process.
Even though the FOIA process and,
specifically, the submitter notification
process in Executive Order 12600 do not
apply, the Councils recognize there is an
obligation to ensure that contractor
proprietary information is not revealed.
To ensure this does not happen, the
Councils added language at FAR
6.305(e) that the contracting officer
should provide the contractor an
opportunity to review, but that this
process must not delay posting within
the established timelines.
12. Comment: Recommend FAR 6.305
be revised to clarify that contracting
officers shall remove information from
J&As that reveals sensitive or
unclassified information such as
Operations Security (OPSEC) that could
harm the Government if released to the
public.
Response: See Council’s responses to
comments 4 and 6.
13. Comment: Recommend removing
names, titles, telephone numbers and
email addresses of Government
employees who develop, review, or
approve the J&A, except for publicly
known points of contact, such as buyers
or contracting officers to protect key
Government personnel from harm and
to funnel queries from potential offerors
to appropriate contracting personnel.
Response: Agencies have the
flexibility to establish procedures
whereby the actual J&A document
includes only the names that the FAR
requires for certification (FAR 6.303–
2(a)(12) and (b)) and approval (FAR
6.304) purposes.
14. Comment: Recommend removing
estimated values from the J&As that
could reveal the Government’s
negotiating position on future buys.
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Response: FAR 6.305(e) states that
‘‘(c)ontracting officers shall also be
guided by the exemptions to disclosure
of information contained in the
Freedom of Information Act…’’.
Therefore, additional detail on
information that is exempt from release,
e.g., estimated values, should not be in
the FAR. Attempting to provide
guidance in the FAR would most likely
not list all possibilities, thereby creating
the dangerous interpretation that, if it is
not listed, it can be released. However,
the contracting officer should consult as
necessary with the local FOIA office and
counsel to determine which information
should be exempt from disclosure.
15. Comment: Recommend issuing
implementing guidance on what to
redact to promote consistency in
understanding and application.
Response: See Council’s response to
comment number 14. The FAR is not
the governing regulatory document for
FOIA. Each agency’s implementation of
FOIA is located in its respective title of
the Code of Federal Regulations. The
interim rule amended the FOIA part of
the FAR at 24.203(b) to add a reference
to the excellent FOIA resources
available from the Department of
Justice.
16. Comment: A commenter asked
how long a J&A posted on an agency
website must remain available for
public inspection.
Response: FedBizOpps requires a 30day minimum posting requirement,
although agencies are not precluded
from posting the J&A for a longer period
of time. The final rule revises FAR 6.305
to state J&As must remain posted for a
minimum of 30 days.
17. Comment: The commenter
recommends the Councils consider
integrating the J&A documents into the
database located at
www.usaspending.gov.
Response: The law requires posting
on the agency website and through a
governmentwide website selected by the
Administrator for Federal Procurement
Policy. The Administrator for Federal
Procurement Policy selected
FedBizOpps as the governmentwide
website.
Veterans:
18. Comment: This interim rule is an
obstacle to veteran-owned small
businesses obtaining Federal business
opportunities on a sole source basis,
which was the intent of Pub. L. 109–
461. Contracting officers will see section
844 as reinforcing their position that
soliciting on a competitive basis will
provide a fair and reasonable price
without having to prepare a J&A.
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Response: This interim rule does not
alter the criteria that must be satisfied
before making a decision that an
acquisition will be conducted on a solesource basis. It also does not alter what
documentation must be prepared to
support that decision. This interim rule
does not impact the authority the
Department of Veterans Affairs was
given under Pub. L. 109–461 to conduct
noncompetitive sourcing under certain
conditions or the procedures that the
Department of Veterans Affairs puts in
place to carry out noncompetitive
sourcing. This interim rule merely states
that, if a justification for other than full
and open competition is issued
pursuant to FAR 6.303–1 or 13.501, then
that justification must be made
publically available on the Government
Point of Entry (GPE) website and the
agency’s website.
19. Comment: This interim rule is just
another obstacle to the Department of
Veterans Affairs determining how to
implement Pub. L. 109–461.
Response: The interim rule
implementing section 844 of the FY08
NDAA has no direct bearing on the
implementation of Pub. L. 109–461.
Changes to the Interim rule. The final
rule:
•Adds a new paragraph FAR 6.305(c)
to require that, if the justification is a
brand-name justification under FAR
6.302–1(c), then it must be posted with
the solicitation;
•Requires that the justification remain
posted for a minimum of 30 days;
•Adds a new paragraph FAR 6.305(f),
to clarify that posting the justification
does not apply if it would disclose the
executive agency’s needs and disclosure
of such needs would compromise
national security or create other security
risks; and
•Establishes procedures at FAR
13.501 similar to procedures at FAR
6.305(b), 6.305(d), 6.305(e), and 6.305(f).
This is a significant regulatory action
and, therefore, was 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 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 Federal agency
procedures and will benefit small
business entities by providing the
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opportunity for the review of J&A
documents for contracts awarded
noncompetitively, thereby increasing
the opportunity for competition for
future awards.
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 Parts 5, 6, 13,
and 24
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
Accordingly, the interim rule
published in the Federal Register at 74
FR 2731 on January 15, 2009, is adopted
as a final rule with the following
changes:
■ 1. The authority citation for 48 CFR
parts 6 and 13 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 6—COMPETITION
REQUIREMENTS
2. Revise section 6.305 to read as
follows:
■
6.305
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
Availability of the justification.
(a) The agency shall make publicly
available the justification required by
6.303–1 as required by 10 U.S.C. 2304(l)
and 41 U.S.C. 253(j). Except for the
circumstances in paragraphs (b) and (c)
of this section, the justification shall be
made publicly available within 14 days
after contract award.
(b) In the case of a contract award
permitted under 6.302–2, the
justification shall be posted within 30
days after contract award.
(c) In the case of a brand name
justification under 6.302–1(c), the
justification shall be posted with the
solicitation (see 5.102(a)(6)).
(d) The justifications shall be made
publicly available—
(1) At the Government Point of Entry
(GPE) www.fedbizopps.gov;
(2) On the website of the agency,
which may provide access to the
justifications by linking to the GPE; and
(3) Must remain posted for a
minimum of 30 days.
(e) Contracting officers shall carefully
screen all justifications for contractor
proprietary data and remove all such
data, and such references and citations
as are necessary to protect the
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proprietary data, before making the
justifications available for public
inspection. Contracting officers shall
also be guided by the exemptions to
disclosure of information contained in
the Freedom of Information Act (5
U.S.C. 552) and the prohibitions against
disclosure in 24.202 in determining
whether the justification, or portions of
it, are exempt from posting. Although
the submitter notice process set out in
EO 12600, entitled ‘‘Predisclosure
Notification Procedures for Confidential
Commercial Information,’’ does not
apply, if the justification appears to
contain proprietary data, the contracting
officer should provide the contractor
that submitted the information an
opportunity to review the justification
for proprietary data, before making the
justification available for public
inspection, redacted as necessary. This
process must not prevent or delay the
posting of the justification in
accordance with the timeframes
required in paragraphs (a) through (c).
(f) The requirements of paragraphs (a)
through (d) do not apply if posting the
justification would disclose the
executive agency’s needs and disclosure
of such needs would compromise
national security or create other security
risks.
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3. Amend section 13.501 by—
■ a. Removing from paragraph (a)(1)(i)
‘‘section; and’’ and adding ‘‘section;’’ in
its place;
■ b. Removing from paragraph (a)(1)(ii)
‘‘(41 U.S.C. 428a).’’ and adding ‘‘(41
U.S.C. 428a);’’ in its place; and
■ c. Adding paragraphs (a)(1)(iii) and
(a)(1)(iv) to read as follows:
■
13.501 Special documentation
requirements.
(a) * * *
(1) * * *
(iii) Make publicly available the
justifications (excluding brand name)
required by 6.305(a) within 14 days after
contract award or in the case of unusual
and compelling urgency within 30 days
after contract award, in accordance with
6.305 procedures at paragraphs (b), (d),
(e), and (f); and
(iv) Make publicly available brand
name justifications with the solicitation,
in accordance with 5.102(a)(6).
[FR Doc. 2010–14216 Filed 6–15–10; 8:45 am]
BILLING CODE 6820–EP–S
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]]>Agencies
[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34273-34276]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14216]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 6, 13, and 24
[FAC 2005-42; FAR Case 2008-003 Item IV; Docket 2008-0001, Sequence 27]
RIN 9000-AL13
Federal Acquisition Regulation; 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
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, with
changes, an interim rule amending the Federal Acquisition Regulation
(FAR) to implement the National Defense Authorization Act for Fiscal
Year 2008, Section 844 ``Public Disclosure of Justification and
Approval Documents for Noncompetitive Contracts'' (FY08 NDAA). Section
844 of the FY08 NDAA stipulates the requirements regarding the public
availability of justifications and approval documents after the award
of Federal contracts, except for information exempt from public
disclosure.
DATES: Effective Date: July 16, 2010.
FOR FURTHER INFORMATION CONTACT: Ernest Woodson, Procurement Analyst,
at (202) 501-3775, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR Case 2008-
003.
SUPPLEMENTARY INFORMATION:
A. Background
The National Defense Authorization Act for Fiscal Year 2008, Pub.
L. 110-181, Section 844, entitled ``Public Disclosure of Justification
and Approval Documents for Noncompetitive Contracts,'' amends 10 U.S.C.
2304 and 41 U.S.C. 253 regarding procurements made under subsection (c)
(i.e., other than competitive procedures) to require public
availability of the justification and approval (J&A) documents after
contract award, except for information exempt from public disclosure
under 5 U.S.C. 552. The provisions of section 844 require the head of
an executive agency to make certain J&A documents relating to the use
of noncompetitive procedures in contracting available on the website of
an agency and through a governmentwide website selected by the
Administrator for Federal Procurement Policy (OFPP) within 14 days of
contract award. In the case of noncompetitive contracts awarded on the
basis of unusual and compelling urgency, the documents must be posted
within 30 days of contract award. The Competition in Contracting Act
(Pub. L. 98-369) already requires that such J&A documents be made
available for public inspection, subject to the exemptions from public
disclosure provided in the Freedom of Information Act (FOIA) (5 U.S.C.
552).
The interim rule was published in the Federal Register at 74 FR
2731 on January 15, 2009, with an effective date of February 17, 2009,
and a request for comments by March 16, 2009.
Nine respondents submitted nineteen comments in response to the
interim rule. There were six categories of comments. These categories
were applicability, exceptions, Federal Business Opportunities
(FedBizOpps), protests, FOIA, and veterans.
Below are the comments received on the interim rule along with the
responses developed by the Councils.
[[Page 34274]]
Applicability:
1. Comment: The rule states that the posting requirement applies to
all contracts awarded under FAR 6.303-1 J&A documents. Is the intent to
include sole-source justifications prepared under FAR subpart 13.5?
Response: Section 844 of the FY08 NDAA requires posting of
documents containing the J&A required by subsection (f)(1) of 10 U.S.C.
2304 or 41 U.S.C. 253. Subsection (g) of those statutes provides for
streamlined procedures that promote efficiency and economy in
contracting and avoid unnecessary burdens for agencies and contractors
for purchases not greater than the simplified acquisition threshold and
for purchases made pursuant to the commercial-items test program.
Accordingly, FAR 6.001 states that part 6 does not apply to
acquisitions for contracts awarded using the simplified acquisition
procedures and adds a reference to FAR 13.501 for the requirements
pertaining to sole-source acquisitions of commercial items over the
simplified acquisition threshold under subpart 13.5. FAR 13.501
implemented 10 U.S.C. 4052(g), which stipulates that an executive
agency may not conduct a purchase on a sole-source basis unless the
need to do so is justified in writing and approved in accordance with
10 U.S.C. 2304 or 41 U.S.C. 253. Thus, 10 U.S.C. 4052(g) imposed a
justification process on sole-source actions over the simplified
acquisition threshold done under the commercial-items test program.
Similarly, though section 844 does not require posting of the FAR
13.501 J&As document, the Councils recommend, as a matter of policy,
that J&As required by FAR 13.501 also be posted on FedBizOpps. Such
posting is consistent with the President's focus on creating a ``New
Era of Open Government'' and is reasonable because these actions exceed
the simplified acquisition threshold and posting could enhance
opportunities for competition on future requirements of such commercial
items. It is also consistent with the existing requirement (FAR
5.102(a)(6)) to post a brand name justification in FedBizOpps along
with the solicitation. Therefore, the rule has been revised to include
the requirement to post FAR 13.501 justifications.
2. Comment: The rule states that the posting requirement applies to
all contracts awarded under FAR 6.303-1 J&A document. Is the intent to
include limited-source justifications for orders placed under Federal
Supply Schedules in accordance with FAR 8.405-6?
Response: The posting requirement of Section 844 of the FY08 NDAA
pertains to J&As executed pursuant to FAR subpart 6.3, it does not
apply to the placement of orders under the Federal Supply Schedules.
However, a separate FAR Case will implement section 843 of the NDAA,
which requires posting of sole source task or delivery orders in excess
of the Simplified Acquisition Threshold that are placed against
multiple award contracts.
Exceptions:
3. Comment: Will there be a dollar threshold for when we need to
post the J&A to the FedBizOpps website?
Response: There is no dollar threshold that triggers the
requirement to post the J&A.
4. Comment: If a purchase meets an exception at FAR 5.202 does it
need to be posted? Recommend making exceptions to posting J&A
consistent with the FAR exceptions to posting synopses (FAR 5.202),
solicitation (FAR 5.102(a)(5)), or contract awards (FAR 5.301(b)).
Response: The exceptions provided at FAR 5.102, 5.202, and 5.301
all derive from section 18 of the Office of Federal Procurement Policy
(OFPP) Act. The requirement to make the J&A available for public
inspection is not a new requirement, but previously implemented 10
U.S.C. 2304(f)(4) and 41 U.S.C. 253(f)(4). Only the requirement to post
the J&A is new. Section 844 of the FY08 NDAA requires posting of the
J&A and provides for exclusion of information exempt from public
disclosure under section 552 of Title 5 U.S.C. (FOIA). As such, the FAR
exceptions cannot automatically be applied to the posting of J&A. The
Councils revised FAR 6.305 to add a new paragraph (e) to recognize
that, in addition to redacting information in the J&A consistent with
FOIA exemptions, there may also be cases where the J&A itself would be
exempted from being posted per the FOIA exemptions. One such instance
is when posting the J&A would disclose the executive agency's needs and
disclosure would compromise national security or create other security
risks. The Councils added this specific exception to the FAR because it
is clearly consistent with FOIA and FAR 5.102, 5.202, and 5.301. Any
other FOIA exemption that might authorize not posting the J&A must be
determined in accordance with FAR subpart 24.2.
5. Comment: Under FAR 5.202(a), there are several items that would
prevent the agency from posting information available on the web for a
pre-solicitation announcement. Currently, there is no such exception to
posting the J&A, which can lead to a situation where the J&A gets
posted while the award does not. When this happens, FedBizOpps rejects
posting the J&A because it can't find the related award. FedBizOpps
also rejects the J&A when a previously posted award has been placed in
archive status.
Response: The Councils have confirmed that FedBizOpps allows for
the posting of a J&A even if there was no prior synopsis.
6. Comment: A major concern for members of the intelligence
community regards the potential security threat from publication of
even unclassified material. Publicizing systems designed with the
broader community in mind cannot always protect the sensitive but
unclassified nature of the intelligence business. If this new
requirement cannot be deleted in whole, then they request an exemption
to the public disclosure requirement for the Office of the Director of
National Intelligence until an ancillary classified database is
developed for the intelligence community and others with sensitive
information.
Response: The contracting officer already has the authority to
determine when not to disclose information that would compromise
national security or create other security risks, for example per FOIA
exemptions 1 and 7. However, as explained in the response to comment 4,
the Councils did revise FAR 6.305 to recognize that, in addition to
redacting information in the J&A consistent with FOIA exemptions, there
may also be cases where the J&A itself would be exempted from being
posted per the FOIA exemptions.
Websites:
7. Comment: Is the award number a fill in-the-blank for FedBizOpps?
Will the award date be a fill in-the-box? It would be helpful so
vendors know that it was already awarded.
Response: When the Government is posting a J&A to FedBizOpps, it
has the option of associating the J&A with an existing award notice in
the system. In this case, the system will automatically populate the
contract award number and award date. Otherwise, the Government will
need to manually enter the contract award number and award date into
the J&A notice form. (Note: An award number is not required for a
brand-name J&A since a brand name J&A must be posted with the
solicitation.)
Protests:
8. Comment: When a vendor sees a J&A posted, will they have protest
rights?
[[Page 34275]]
Response: The statute did not change any protest rights, including
any timeliness requirements. The rationale for posting is just to make
the process more transparent.
9. Comment: One commenter recommends the rule should recognize the
date publicized on FedBizOpps as the date upon which a basis of protest
is known under GAO rules of procedure. Another commenter states that if
the protest timeliness rules are revised, there will likely be more
protests.
Response: Timeliness requirements have not been revised by the
statute. The Councils cannot unilaterally change either the Government
Accounting Office (GAO) timeliness rules or Court of Federal Claims
statutory jurisdiction. This rule is merely to make the process more
transparent and help contractors to be apprised of possible future
requirements that in the past were awarded on a sole source basis.
10. Comment: The commenter wants to know why the Government is
waiting up to 14 days as this will not help protesters compete, and if
a protest is lodged, could result in delays and additional cost to the
Government.
Response: The intent is not to help protesters compete for the
current requirement, but for the future. Section 844 of the FY08 NDAA,
which this rule implements, states that the J&A must be made publicly
available within 14 days after contract award.
Freedom of Information Act (FOIA):
11. Comment: One commenter stated FAR 6.305(c) requires contracting
officers to be guided by FOIA exemptions. FOIA procedures address very
specific mechanisms and timelines for review and release of
information. Referencing FOIA procedures implies that the contracting
officer should consult with the sole source contractor prior to release
of information. The commenter questions whether such a step could be
accomplished within the 14-day to 30-day requirement. Another commenter
recommends that contractors be given the right to review J&A documents
prior to release to ensure no proprietary information is included in
the document, consistent with FOIA.
Response: These commenters are referring to the requirements of
Executive Order 12600, that agencies establish procedures to notify
submitters of records containing confidential commercial information,
the disclosure of which the department or agency has reason to believe
could reasonably be expected to cause substantial competitive harm,
when those records are requested under the FOIA.
This executive order applies to the FOIA process that is used to
determine financial information that might be exempt from public
disclosure. Section 844 of the FY08 NDAA states only that the
requirement to post J&As does not require the public availability of
information that is exempt from public disclosure under FOIA. It does
not mandate the FOIA process.
Additionally, FAR 5.102(a)(6) and 5.705(b) also require posting of
J&As for brand name and the rationale for non-competitive awards in
support of the Recovery Act, respectively. The FAR requires that these
documents be redacted as necessary to preclude disclosure of
proprietary information or information that would otherwise compromise
national security. In these instances, the FOIA exemptions to public
disclosure apply, but not the FOIA process.
Even though the FOIA process and, specifically, the submitter
notification process in Executive Order 12600 do not apply, the
Councils recognize there is an obligation to ensure that contractor
proprietary information is not revealed. To ensure this does not
happen, the Councils added language at FAR 6.305(e) that the
contracting officer should provide the contractor an opportunity to
review, but that this process must not delay posting within the
established timelines.
12. Comment: Recommend FAR 6.305 be revised to clarify that
contracting officers shall remove information from J&As that reveals
sensitive or unclassified information such as Operations Security
(OPSEC) that could harm the Government if released to the public.
Response: See Council's responses to comments 4 and 6.
13. Comment: Recommend removing names, titles, telephone numbers
and email addresses of Government employees who develop, review, or
approve the J&A, except for publicly known points of contact, such as
buyers or contracting officers to protect key Government personnel from
harm and to funnel queries from potential offerors to appropriate
contracting personnel.
Response: Agencies have the flexibility to establish procedures
whereby the actual J&A document includes only the names that the FAR
requires for certification (FAR 6.303-2(a)(12) and (b)) and approval
(FAR 6.304) purposes.
14. Comment: Recommend removing estimated values from the J&As that
could reveal the Government's negotiating position on future buys.
Response: FAR 6.305(e) states that ``(c)ontracting officers shall
also be guided by the exemptions to disclosure of information contained
in the Freedom of Information Act[hellip]''. Therefore, additional
detail on information that is exempt from release, e.g., estimated
values, should not be in the FAR. Attempting to provide guidance in the
FAR would most likely not list all possibilities, thereby creating the
dangerous interpretation that, if it is not listed, it can be released.
However, the contracting officer should consult as necessary with the
local FOIA office and counsel to determine which information should be
exempt from disclosure.
15. Comment: Recommend issuing implementing guidance on what to
redact to promote consistency in understanding and application.
Response: See Council's response to comment number 14. The FAR is
not the governing regulatory document for FOIA. Each agency's
implementation of FOIA is located in its respective title of the Code
of Federal Regulations. The interim rule amended the FOIA part of the
FAR at 24.203(b) to add a reference to the excellent FOIA resources
available from the Department of Justice.
16. Comment: A commenter asked how long a J&A posted on an agency
website must remain available for public inspection.
Response: FedBizOpps requires a 30-day minimum posting requirement,
although agencies are not precluded from posting the J&A for a longer
period of time. The final rule revises FAR 6.305 to state J&As must
remain posted for a minimum of 30 days.
17. Comment: The commenter recommends the Councils consider
integrating the J&A documents into the database located at
www.usaspending.gov.
Response: The law requires posting on the agency website and
through a governmentwide website selected by the Administrator for
Federal Procurement Policy. The Administrator for Federal Procurement
Policy selected FedBizOpps as the governmentwide website.
Veterans:
18. Comment: This interim rule is an obstacle to veteran-owned
small businesses obtaining Federal business opportunities on a sole
source basis, which was the intent of Pub. L. 109-461. Contracting
officers will see section 844 as reinforcing their position that
soliciting on a competitive basis will provide a fair and reasonable
price without having to prepare a J&A.
[[Page 34276]]
Response: This interim rule does not alter the criteria that must
be satisfied before making a decision that an acquisition will be
conducted on a sole-source basis. It also does not alter what
documentation must be prepared to support that decision. This interim
rule does not impact the authority the Department of Veterans Affairs
was given under Pub. L. 109-461 to conduct noncompetitive sourcing
under certain conditions or the procedures that the Department of
Veterans Affairs puts in place to carry out noncompetitive sourcing.
This interim rule merely states that, if a justification for other than
full and open competition is issued pursuant to FAR 6.303-1 or 13.501,
then that justification must be made publically available on the
Government Point of Entry (GPE) website and the agency's website.
19. Comment: This interim rule is just another obstacle to the
Department of Veterans Affairs determining how to implement Pub. L.
109-461.
Response: The interim rule implementing section 844 of the FY08
NDAA has no direct bearing on the implementation of Pub. L. 109-461.
Changes to the Interim rule. The final rule:
Adds a new paragraph FAR 6.305(c) to require that, if the
justification is a brand-name justification under FAR 6.302-1(c), then
it must be posted with the solicitation;
Requires that the justification remain posted for a minimum
of 30 days;
Adds a new paragraph FAR 6.305(f), to clarify that posting
the justification does not apply if it would disclose the executive
agency's needs and disclosure of such needs would compromise national
security or create other security risks; and
Establishes procedures at FAR 13.501 similar to procedures
at FAR 6.305(b), 6.305(d), 6.305(e), and 6.305(f).
This is a significant regulatory action and, therefore, was 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 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 Federal agency procedures and will benefit small business
entities by providing the opportunity for the review of J&A documents
for contracts awarded noncompetitively, thereby increasing the
opportunity for competition for future awards.
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 Parts 5, 6, 13, and 24
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
0
Accordingly, the interim rule published in the Federal Register at 74
FR 2731 on January 15, 2009, is adopted as a final rule with the
following changes:
0
1. The authority citation for 48 CFR parts 6 and 13 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 6--COMPETITION REQUIREMENTS
0
2. Revise section 6.305 to read as follows:
6.305 Availability of the justification.
(a) The agency shall make publicly available the justification
required by 6.303-1 as required by 10 U.S.C. 2304(l) and 41 U.S.C.
253(j). Except for the circumstances in paragraphs (b) and (c) of this
section, the justification shall be made publicly available within 14
days after contract award.
(b) In the case of a contract award permitted under 6.302-2, the
justification shall be posted within 30 days after contract award.
(c) In the case of a brand name justification under 6.302-1(c), the
justification shall be posted with the solicitation (see 5.102(a)(6)).
(d) The justifications shall be made publicly available--
(1) At the Government Point of Entry (GPE) www.fedbizopps.gov;
(2) On the website of the agency, which may provide access to the
justifications by linking to the GPE; and
(3) Must remain posted for a minimum of 30 days.
(e) Contracting officers shall carefully screen all justifications
for contractor proprietary data and remove all such data, and such
references and citations as are necessary to protect the proprietary
data, before making the justifications available for public inspection.
Contracting officers shall also be guided by the exemptions to
disclosure of information contained in the Freedom of Information Act
(5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in
determining whether the justification, or portions of it, are exempt
from posting. Although the submitter notice process set out in EO
12600, entitled ``Predisclosure Notification Procedures for
Confidential Commercial Information,'' does not apply, if the
justification appears to contain proprietary data, the contracting
officer should provide the contractor that submitted the information an
opportunity to review the justification for proprietary data, before
making the justification available for public inspection, redacted as
necessary. This process must not prevent or delay the posting of the
justification in accordance with the timeframes required in paragraphs
(a) through (c).
(f) The requirements of paragraphs (a) through (d) do not apply if
posting the justification would disclose the executive agency's needs
and disclosure of such needs would compromise national security or
create other security risks.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
3. Amend section 13.501 by--
0
a. Removing from paragraph (a)(1)(i) ``section; and'' and adding
``section;'' in its place;
0
b. Removing from paragraph (a)(1)(ii) ``(41 U.S.C. 428a).'' and adding
``(41 U.S.C. 428a);'' in its place; and
0
c. Adding paragraphs (a)(1)(iii) and (a)(1)(iv) to read as follows:
13.501 Special documentation requirements.
(a) * * *
(1) * * *
(iii) Make publicly available the justifications (excluding brand
name) required by 6.305(a) within 14 days after contract award or in
the case of unusual and compelling urgency within 30 days after
contract award, in accordance with 6.305 procedures at paragraphs (b),
(d), (e), and (f); and
(iv) Make publicly available brand name justifications with the
solicitation, in accordance with 5.102(a)(6).
[FR Doc. 2010-14216 Filed 6-15-10; 8:45 am]
BILLING CODE 6820-EP-S
