Federal Acquisition Regulation; Use of Commercial Services Item Authority, 14568-14569 [2011-5557]

Download as PDF 14568 Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations (c) The contracting officer shall review acquisitions to determine if they can be set aside for small business, giving consideration to the recommendations of agency personnel having cognizance of the agency’s small business programs. The contracting officer shall perform market research and document why a small business setaside is inappropriate when an acquisition is not set aside for small business, unless an award is anticipated to a small business under the 8(a), HUBZone, or service-disabled veteranowned programs. If the acquisition is set aside for small business based on this review, it is a unilateral set-aside by the contracting officer. Agencies may establish threshold levels for this review depending upon their needs. * * * * * ■ 6. Amend section 19.502–2 by adding a new first sentence and revising the last sentence of paragraph (a); and by revising the first sentence in paragraph (b) to read as follows: 19.502–2 Total small business set-asides. (a) Before setting aside an acquisition under this paragraph, refer to 19.203(b). * * * The small business reservation does not preclude the award of a contract as described in 19.203. (b) Before setting aside an acquisition under this paragraph, refer to 19.203(c). * * * * * * * * ■ 7. Amend section 19.800 by revising paragraph (e) to read as follows: 19.800 General. * * * * * (e) Before deciding to set aside an acquisition in accordance with subpart 19.5, the contracting officer may consider offering the acquisition to a small business under the 8(a) Program in accordance with 19.203. * * * * * 19.804–2 [Amended] 8. Amend section 19.804–2 by removing paragraph (a)(12); and redesignating paragraphs (a)(13) through (a)(16) as paragraphs (a)(12) through (a)(15), respectively. ■ 9. Amend section 19.1305 by— ■ a. Revising paragraph (a); ■ b. Removing paragraph (c); ■ c. Redesignating paragraphs (d) and (e) as paragraphs (c) and (d), respectively; and ■ d. Removing from the newly redesignated paragraph (c) ‘‘(see subpart 19.5)’’ and adding ‘‘(see 19.203)’’ in its place. The revised text reads as follows: jlentini on DSKJ8SOYB1PROD with RULES2 ■ VerDate Mar<15>2010 18:19 Mar 15, 2011 Jkt 223001 19.1305 HUBZone set-aside procedures. (a) The contracting officer— (1) May set aside acquisitions exceeding the micro-purchase threshold for competition restricted to HUBZone small business concerns when the requirements of paragraph (b) of this section can be satisfied (see 19.203); and (2) Shall consider HUBZone set-asides before considering HUBZone sole source awards (see 19.1306) or small business set-asides (see subpart 19.5). * * * * * ■ 10. Amend section 19.1306 by revising the introductory text of paragraph (a) to read as follows: 19.1306 HUBZone sole source awards. (a) A contracting officer may award contracts to HUBZone small business concerns on a sole source basis (see 6.302–5(b)(5)) before considering small business set-asides (see 19.203 and subpart 19.5), provided none of the exclusions at 19.1304 apply; and— * * * * * ■ 11. Amend section 19.1405 by revising paragraph (a); and removing from paragraph (c) ‘‘(see Subpart 19.5)’’ and adding ‘‘(see 19.203)’’ in its place. The revised text reads as follows: 19.1405 Service-disabled veteran-owned small business set-aside procedures. (a) The contracting officer— (1) May set-aside acquisitions exceeding the micro-purchase threshold for competition restricted to servicedisabled veteran-owned small business concerns when the requirements of paragraph (b) of this section can be satisfied (see 19.203); and (2) Shall consider service-disabled veteran-owned small business set-asides before considering service-disabled veteran-owned small business sole source awards (see 19.1406) or small business set-asides (see subpart 19.5). * * * * * ■ 12. Amend section 19.1406 by revising the introductory text of paragraph (a) to read as follows: 19.1406 Sole source awards to servicedisabled veteran-owned small business concerns. (a) A contracting officer may award contracts to service-disabled veteranowned small business concerns on a sole source basis (see 6.302–5(b)(6)), before considering small business setasides (see 19.203 and subpart 19.5) provided none of the exclusions of 19.1404 apply and— * * * * * [FR Doc. 2011–5556 Filed 3–15–11; 8:45 am] BILLING CODE 6820–EP–P PO 00000 Frm 00028 Fmt 4701 Sfmt 4700 DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 15 [FAC 2005–50; FAR Case 2008–034; Item VI; Docket 2009–0035, Sequence 1] RIN 9000–AL44 Federal Acquisition Regulation; Use of Commercial Services Item Authority Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. AGENCIES: DoD, GSA, and NASA have adopted as final, without change, an interim rule amending the Federal Acquisition Regulation (FAR) to implement section 868 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. Section 868 provides that the FAR shall be amended with respect to the procurement of commercial services, specifically services that are not offered and sold competitively in substantial quantities in the commercial marketplace, but are of a type offered and sold competitively in substantial quantities in the commercial marketplace. These services may be considered commercial items only if the contracting officer has determined in writing that the offeror has submitted sufficient information to evaluate, through price analysis, the reasonableness of the price for such services. The rule details the information the contracting officer may consider in order to make this determination. SUMMARY: Effective Date: March 16, 2011. Mr. Edward N. Chambers, Procurement Analyst, at (202) 501–3221 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501–4755. Please cite FAC 2005–50, FAR Case 2008–034. SUPPLEMENTARY INFORMATION: DATES: FOR FURTHER INFORMATION CONTACT: I. Background DoD, GSA, and NASA published an interim rule in the Federal Register at 74 FR 52852 on October 14, 2009, to implement section 868 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. The comment period closed on December 14, 2009. E:\FR\FM\16MRR2.SGM 16MRR2 Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations Four respondents submitted comments on the interim rule. II. Discussion/Analysis The analysis of public comments by the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council (the Councils) follows: A. Agree With the Rule Comment: One respondent agreed with the interim rule. The respondent believes including ‘‘services of a type’’ provides the Government with flexibility to access a wide variety of services with beneficial contracting methods. Response: The Councils acknowledge the respondent’s agreement with the interim rule. B. ‘‘Services of a Type’’ Comment: One respondent suggests adding a definition for ‘‘services of a type’’ and/or providing examples of ‘‘services of a type.’’ Response: The Councils do not agree that definitions or examples are necessary to implement this case. The FAR definition of a ‘‘commercial item’’ adequately addresses what is and is not a commercial item. The contracting officer’s determination that a service is considered a ‘‘service of a type’’ is a determination made based on the circumstances surrounding a particular acquisition and is made on a case-bycase basis. C. Sold in the Commercial Marketplace Comment: One respondent also suggests qualifying the two references to the ‘‘commercial marketplace’’ in FAR 15.403–1(c)(3)(ii)(A) as follows. The first reference would be followed by ‘‘by the offeror,’’ while the second reference would be followed by ‘‘by others than the offeror.’’ Response: The respondent’s suggested language changes go beyond the statute. jlentini on DSKJ8SOYB1PROD with RULES2 D. Establishing Price Reasonableness 1. Determination that the offeror has submitted sufficient information (15.403–1(c)(3)(ii)(A)). Comment: One respondent suggests that requiring a contracting officer determination that the offeror has submitted sufficient information to evaluate the reasonableness of the offered price will increase the contracting officer’s workload, may result in lengthy and unnecessary delays, and could reduce competition. Response: The determination is required by statute. 2. Other relevant information (15.403– 1(c)(3)(ii)(C)). VerDate Mar<15>2010 18:19 Mar 15, 2011 Jkt 223001 Comment: One respondent believes that if a service is ‘‘of a type’’ sold in the commercial market place, but price reasonableness cannot be established, then that service would not benefit from the Truth in Negotiations Act exception for commercial items, and that such an outcome would cause tremendous confusion among contracting officers and potential offerors of commercial items. Response: If price reasonableness cannot be determined based on prices for similar commercial services, the services ‘‘of a type’’ cannot be determined to be commercial items (see 15.403–1(c)(3)(ii)(A)). In that case, the contracting officer would need to determine price reasonableness by requesting relevant cost or pricing data from the contractor. Comment: One respondent suggests that the requirement to provide cost information other than cost or pricing data could prove difficult for industry vendors, which may diminish the field of vendors. Response: Current FAR 15.402 policy requires that the contracting officer determine price reasonableness. This cost information can come in many forms (sales data, vendor quotations, historical data, etc.) and is usually on hand for a contractor. Consequently, providing this cost information will not present a burden sufficient to discourage industry vendors from seeking Government contracts. Comment: One respondent believes that if the contracting officer can request cost data, this additional work could result in significant delays in contract award, contract delivery schedule problems and higher prices. Response: The Councils acknowledge the respondent’s concern; however, the contracting officer is required to request appropriate cost or pricing data sufficient to determine price reasonableness. E. Location of Coverage Comment: One respondent suggested that this FAR change should be in FAR 15.403–3 in lieu of 15.403–1. Response: The Councils believe the language belongs in FAR 15.403–1, since it is more closely aligned with the prohibition on obtaining cost or pricing data than the FAR section requiring information other than cost or pricing data. It is noted that these two sections complement each other and are often used congruently. Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. IV. 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 does not impose any additional requirements on small businesses. This rule impacts the Government by requiring a new written determination by the contracting officer. The rule details the information the contracting officer may consider in order to make this determination. In addition, since the current FAR 15.403–3(a)(1) provides for contracting officers to obtain the relevant information necessary to determine price reasonableness, this final rule places no additional requirements on contractors. V. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; however these changes to the FAR do not impose additional information collection requirements to the paperwork burden previously approved under OMB Control Number 9000–0013, titled: Cost or Pricing Data Exemption. List of Subjects in 48 CFR Part 15 Government procurement. Dated: March 4, 2011. Millisa Gary, Acting Director, Office of Governmentwide Acquisition Policy. Interim Rule Adopted as Final Without Change Accordingly, the interim rule amending 48 CFR part 15, which was published in the Federal Register at 74 FR 52852 on October 14, 2009, is adopted as a final rule without change. ■ [FR Doc. 2011–5557 Filed 3–15–11; 8:45 am] BILLING CODE P III. Executive Order 12866 This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive PO 00000 Frm 00029 Fmt 4701 Sfmt 9990 14569 E:\FR\FM\16MRR2.SGM 16MRR2

Agencies

[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Rules and Regulations]
[Pages 14568-14569]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-5557]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 15

[FAC 2005-50; FAR Case 2008-034; Item VI; Docket 2009-0035, Sequence 1]
RIN 9000-AL44


Federal Acquisition Regulation; Use of Commercial Services Item 
Authority

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD, GSA, and NASA have adopted as final, without change, an 
interim rule amending the Federal Acquisition Regulation (FAR) to 
implement section 868 of the Duncan Hunter National Defense 
Authorization Act for Fiscal Year 2009. Section 868 provides that the 
FAR shall be amended with respect to the procurement of commercial 
services, specifically services that are not offered and sold 
competitively in substantial quantities in the commercial marketplace, 
but are of a type offered and sold competitively in substantial 
quantities in the commercial marketplace. These services may be 
considered commercial items only if the contracting officer has 
determined in writing that the offeror has submitted sufficient 
information to evaluate, through price analysis, the reasonableness of 
the price for such services. The rule details the information the 
contracting officer may consider in order to make this determination.

DATES: Effective Date: March 16, 2011.

FOR FURTHER INFORMATION CONTACT: Mr. Edward N. Chambers, Procurement 
Analyst, at (202) 501-3221 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-50, FAR 
Case 2008-034.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 74 FR 52852 on October 14, 2009, to implement section 868 
of the Duncan Hunter National Defense Authorization Act for Fiscal Year 
2009. The comment period closed on December 14, 2009.

[[Page 14569]]

Four respondents submitted comments on the interim rule.

II. Discussion/Analysis

    The analysis of public comments by the Defense Acquisition 
Regulations Council and the Civilian Agency Acquisition Council (the 
Councils) follows:

A. Agree With the Rule

    Comment: One respondent agreed with the interim rule. The 
respondent believes including ``services of a type'' provides the 
Government with flexibility to access a wide variety of services with 
beneficial contracting methods.
    Response: The Councils acknowledge the respondent's agreement with 
the interim rule.

B. ``Services of a Type''

    Comment: One respondent suggests adding a definition for ``services 
of a type'' and/or providing examples of ``services of a type.''
    Response: The Councils do not agree that definitions or examples 
are necessary to implement this case. The FAR definition of a 
``commercial item'' adequately addresses what is and is not a 
commercial item. The contracting officer's determination that a service 
is considered a ``service of a type'' is a determination made based on 
the circumstances surrounding a particular acquisition and is made on a 
case-by-case basis.

C. Sold in the Commercial Marketplace

    Comment: One respondent also suggests qualifying the two references 
to the ``commercial marketplace'' in FAR 15.403-1(c)(3)(ii)(A) as 
follows. The first reference would be followed by ``by the offeror,'' 
while the second reference would be followed by ``by others than the 
offeror.''
    Response: The respondent's suggested language changes go beyond the 
statute.

D. Establishing Price Reasonableness

    1. Determination that the offeror has submitted sufficient 
information (15.403-1(c)(3)(ii)(A)).
    Comment: One respondent suggests that requiring a contracting 
officer determination that the offeror has submitted sufficient 
information to evaluate the reasonableness of the offered price will 
increase the contracting officer's workload, may result in lengthy and 
unnecessary delays, and could reduce competition.
    Response: The determination is required by statute.
    2. Other relevant information (15.403-1(c)(3)(ii)(C)).
    Comment: One respondent believes that if a service is ``of a type'' 
sold in the commercial market place, but price reasonableness cannot be 
established, then that service would not benefit from the Truth in 
Negotiations Act exception for commercial items, and that such an 
outcome would cause tremendous confusion among contracting officers and 
potential offerors of commercial items.
    Response: If price reasonableness cannot be determined based on 
prices for similar commercial services, the services ``of a type'' 
cannot be determined to be commercial items (see 15.403-
1(c)(3)(ii)(A)). In that case, the contracting officer would need to 
determine price reasonableness by requesting relevant cost or pricing 
data from the contractor.
    Comment: One respondent suggests that the requirement to provide 
cost information other than cost or pricing data could prove difficult 
for industry vendors, which may diminish the field of vendors.
    Response: Current FAR 15.402 policy requires that the contracting 
officer determine price reasonableness. This cost information can come 
in many forms (sales data, vendor quotations, historical data, etc.) 
and is usually on hand for a contractor. Consequently, providing this 
cost information will not present a burden sufficient to discourage 
industry vendors from seeking Government contracts.
    Comment: One respondent believes that if the contracting officer 
can request cost data, this additional work could result in significant 
delays in contract award, contract delivery schedule problems and 
higher prices.
    Response: The Councils acknowledge the respondent's concern; 
however, the contracting officer is required to request appropriate 
cost or pricing data sufficient to determine price reasonableness.

E. Location of Coverage

    Comment: One respondent suggested that this FAR change should be in 
FAR 15.403-3 in lieu of 15.403-1.
    Response: The Councils believe the language belongs in FAR 15.403-
1, since it is more closely aligned with the prohibition on obtaining 
cost or pricing data than the FAR section requiring information other 
than cost or pricing data. It is noted that these two sections 
complement each other and are often used congruently.

III. Executive Order 12866

    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.

IV. 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 does not 
impose any additional requirements on small businesses. This rule 
impacts the Government by requiring a new written determination by the 
contracting officer. The rule details the information the contracting 
officer may consider in order to make this determination. In addition, 
since the current FAR 15.403-3(a)(1) provides for contracting officers 
to obtain the relevant information necessary to determine price 
reasonableness, this final rule places no additional requirements on 
contractors.

V. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply; 
however these changes to the FAR do not impose additional information 
collection requirements to the paperwork burden previously approved 
under OMB Control Number 9000-0013, titled: Cost or Pricing Data 
Exemption.

List of Subjects in 48 CFR Part 15

    Government procurement.

    Dated: March 4, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.

Interim Rule Adopted as Final Without Change

0
Accordingly, the interim rule amending 48 CFR part 15, which was 
published in the Federal Register at 74 FR 52852 on October 14, 2009, 
is adopted as a final rule without change.

[FR Doc. 2011-5557 Filed 3-15-11; 8:45 am]
BILLING CODE P