Federal Acquisition Regulation; Extension of Sunset Date for Protests of Task and Delivery Orders, 39238-39240 [2011-16675]
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39238
Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
mstockstill on DSK4VPTVN1PROD with RULES2
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. The interim
rule removed requirements relating to
subcontracts for COTS items. In the case
of commercial items, the requirement
extends only to the first-tier
subcontracts. This rule will impact
small entities that are awarded a lowertier subcontract for a non-COTS item
that exceeds $30,000, in that these
entities must now disclose to the highertier subcontractor whether they are
debarred, suspended, or proposed for
debarment. Although a substantial
number of small entities may be
impacted by this rule, the impact is not
significant. It will probably take only
minimal time to include the required
information with an offer. For the other
impact of the rule, which will require
the higher-tier subcontractor to provide
an explanation if desiring to subcontract
with an entity that has been debarred,
suspended, or proposed for debarment,
DoD, GSA, and NASA have determined
that this will not impact a substantial
number of small entities, because it
should be a rare occurrence that a
subcontractor would potentially
jeopardize performance or integrity by
knowingly contracting with an entity
that is debarred, suspended, or
proposed for debarment. No public
comments were received with regard to
the impact of this rule on small entities.
V. Paperwork Reduction Act
This rule affects the certification and
information collection requirements in
the provisions at FAR case 2009–036
currently approved under OMB Control
Number 9000–0094 in accordance with
the Paperwork Reduction Act (44 U.S.C.
chapter 35). The impact, however, is
negligible because the change in burden
hours is so slight.
List of Subjects in 48 CFR Parts 9 and
52
Government procurement.
VerDate Mar<15>2010
20:17 Jul 01, 2011
Jkt 223001
Dated: June 28, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy.
Accordingly, the interim rule
amending 48 CFR parts 9 and 52, which
was published in the Federal Register at
75 FR 77739, December 13, 2010, is
adopted as final with the following
changes:
■ 1. The authority citation for 48 CFR
parts 9 and 52 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 9—CONTRACTOR
QUALIFICATIONS
9.405–2
[Amended]
2. Amend section 9.405–2 by
removing from paragraph (b)
introductory text, in the third sentence,
‘‘to subcontract’’ and adding ‘‘to enter
into a subcontract in excess of $30,000’’
in its place.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
3. Amend section 52.212–5 by
revising the date of the clause and
paragraph (b)(6) to read as follows:
■
52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items
(AUG 2011)
*
*
*
*
*
(b) * * *
(6) 52.209–6, Protecting the Government’s
Interest When Subcontracting with
Contractors Debarred, Suspended, or
Proposed for Debarment. (Dec 2010) (31
U.S.C. 6101 note).
*
*
*
*
*
4. Amend section 52.213–4 by
revising the date of the clause and
paragraph (b)(2)(i) to read as follows:
■
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
*
*
*
*
*
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Items) (AUG 2011)
*
*
*
*
*
(b) * * *
(2) * * *
(i) 52.209–6, Protecting the Government’s
Interest When Subcontracting with
Contractors Debarred, Suspended, or
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*
*
*
*
*
[FR Doc. 2011–16674 Filed 7–1–11; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005–53; FAR Case 2011–015; Item
IV; Docket 2011–0015, Sequence 1]
RIN 9000–AM08
■
*
Proposed for Debarment (Dec 2010) (Applies
to contracts over $30,000).
Federal Acquisition Regulation;
Extension of Sunset Date for Protests
of Task and Delivery Orders
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule.
AGENCIES:
DoD, GSA, and NASA are
issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement section 825 of the Ike
Skelton National Defense Authorization
Act for Fiscal Year 2011. The statute
extends the sunset date for protests
against the award of task or delivery
orders by DoD, NASA, and the Coast
Guard from May 27, 2011, to September
30, 2016.
DATES: Effective Date: July 5, 2011.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
September 6, 2011 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–53, FAR Case
2011–015, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2011–015’’ under
the heading ‘‘Enter Keyword or ID’’ and
selecting ‘‘Search.’’ Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FAR Case 2011–015.’’ Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and
‘‘FAR Case 2011–015’’ on your attached
document.
• Fax: (202) 501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), Attn: Hada Flowers, 1275 First
SUMMARY:
E:\FR\FM\05JYR2.SGM
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Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations
Street, NE., 7th Floor, Washington, DC
20417.
Instructions: Please submit comments
only and cite FAC 2005–53, FAR Case
2011–015, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Deborah Lague, Procurement Analyst, at
(202) 694–8149, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2010–53, FAR
Case 2011–015.
SUPPLEMENTARY INFORMATION:
I. Background
other than DoD, NASA, and the Coast
Guard. There is no effect on
Government automated systems.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and
13563 direct agencies to assess all costs
and benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). E.O. 13563 emphasizes the
importance of quantifying both costs
and benefits, of reducing costs, of
harmonizing rules, and of promoting
flexibility. This is not a significant
regulatory action and, therefore, was not
subject to review under section 6(b) of
E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
39239
NASA, and the Coast Guard from May 27,
2011, to September 30, 2016.
Prior to the National Defense Authorization
Act for Fiscal Year 2008, there was no
authority for protests against the award of
task or delivery orders under indefinitedelivery contracts. That statute, however,
amended Titles 10 and 41 to allow protests
against the award, or proposed award, of a
task or delivery order by any Federal agency
if (a) the protest is on the grounds that the
order increases the scope, period, or
maximum value of the contract, or (b) the
order is valued at over $10 million.
This protest authority has been in effect for
the past 21⁄2 years. Section 825 extended the
sunset date for Title 10 agencies (DoD,
NASA, and the Coast Guard). However, there
has not been a similar change to the Title 41
authority, so the sunset date remains May 27,
2011, for all other agencies.
The authority to file protests against the
award of task or delivery orders is relatively
new, and there is little data available, as such
protests may be filed with the agency or
General Accountability Office (GAO). Section
843 of Pub. L. 110–181 gave the Comptroller
General of the United States the exclusive
jurisdiction of a protest of an order valued in
excess of $10 million. Data on agency-level
protests is not compiled outside the agency
concerned, so we had to base our estimate on
the total number of protests filed at the GAO
in Fiscal Years 2009 and 2010. The data was
extracted from GAO’s latest report to the
Congress. Only Fiscal Years 2009 and 2010
protest numbers were used because the
authority to protest against task or delivery
orders did not exist prior to that time.
Offerors can protest to the agency or to the
GAO. Assuming that one-half of all protests
are filed with the GAO and the other half are
filed with the agency, then the average
number of protests filed per fiscal year would
be 4,300 (see below):
award of a task or delivery order are made
by small businesses. Even if we assume that
percentage to be one-half, then the number of
protests filed by small businesses against the
award of a task or delivery order is estimated
to be 539.
The number 16 represents the number of
small business task or delivery order protests
sustained in a fiscal year. However, this
number is representative of protests against
awards by all Government agencies, not just
DoD, NASA, and the Coast Guard. If the
VerDate Mar<15>2010
20:17 Jul 01, 2011
Jkt 223001
The change may 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.. The Initial
Regulatory Flexibility Analysis (IRFA) is
summarized as follows:
PO 00000
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E:\FR\FM\05JYR2.SGM
05JYR2
ER05JY11.012</GPH>
value of the contract; or (b) a protest of an
order valued in excess of $10 million.
Therefore, it is reasonable to assume that less
than 50 percent of the total number of
protests filed is against the award of a task
or delivery order. A generous estimate is
approximately one-fourth, or 1,075. Likewise,
only a percentage of the protests against the
III. Regulatory Flexibility Act
ER05JY11.011</GPH>
This rule was initiated to implement
section 825 of the Ike Skelton National
Defense Authorization Act for Fiscal Year
2011 (Pub. L. 111–383), enacted January 7,
2011. Section 825 amends 10 U.S.C. 2304c(e)
to extend the sunset date for protests against
the award of task or delivery orders by DoD,
Protests may be filed against the award of
contracts as well as certain task or delivery
orders. There are few prohibitions on the
grounds for protests against the award of a
contract. However, protests against the award
of a task or delivery order are limited to (a)
a protest on the grounds that the order
increases the scope, period, or maximum
mstockstill on DSK4VPTVN1PROD with RULES2
DoD, GSA, and NASA are publishing
this interim rule amending the FAR to
implement section 825 of the Ike
Skelton National Defense Authorization
Act for Fiscal Year 2011 (Pub. L. 111–
383, enacted January 7, 2011). Section
825 amends 10 U.S.C. 2304c(e) to
extend the sunset date for protests
against the award of task and delivery
orders from May 27, 2011, to September
30, 2016, but only for Title 10 agencies,
i.e., DoD, NASA, and the Coast Guard.
There has been no comparable change to
Title 41, so the sunset date for protests
against the award of task and delivery
orders by other agencies remains May
27, 2011. With this change, contractors
will no longer be able to protest task or
delivery orders awarded by agencies
39240
Federal Register / Vol. 76, No. 128 / Tuesday, July 5, 2011 / Rules and Regulations
assumption is made that half of the protests
sustained are on DoD, NASA, or Coast Guard
task or delivery orders, then it can be
estimated that extending the sunset date for
protests against task or delivery order awards
by Title 10 agencies will result in an
additional 8 awards to small businesses per
fiscal year that the protest authority remains
in effect.
There is no requirement for small entities
to submit any information under this
provision. Therefore, no professional skills
are necessary on the part of small entities for
compliance, and the cost to small entities
associated with this provision is $0.
The rule does not duplicate, overlap, or
conflict with any other Federal rules.
There are no practical alternatives that will
accomplish the objectives of the interim rule,
i.e., implementation of a statutory mandate.
The Regulatory Secretariat has
submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat. DoD, GSA, and
NASA invite comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
the subpart affected by this rule in
accordance with 5 U.S.C. 610. Interested
parties must submit such comments
separately and should cite 5 U.S.C. 610
(FAC 2005–53, FAR Case 2011–015) in
correspondence.
The interim rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
mstockstill on DSK4VPTVN1PROD with RULES2
V. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the Ike
Skelton National Defense Authorization
Act for Fiscal Year 2011 (Pub. L. 111–
383) was enacted on January 7, 2011,
and requires the extension of the sunset
date for the affected agencies to be
published in the FAR prior to the
expiration of the previous sunset date,
May 27, 2011. However, pursuant to 41
U.S.C. 1707 and FAR 1.501–3(b), DoD,
GSA, and NASA will consider public
20:17 Jul 01, 2011
Jkt 223001
13513, dated October 1, 2009, entitled
‘‘Federal Leadership on Reducing Text
Messaging while Driving.’’
List of Subjects in 48 CFR Part 16
DATES:
Government procurement.
Effective Date: August 4, 2011.
Mr.
William Clark, Procurement Analyst, at
(202) 219–1813, for clarification of
content. For information pertaining to
status or publication schedules, contact
the Regulatory Secretariat at (202) 501–
4755. Please cite FAC 2005–53, FAR
Case 2009–028.
FOR FURTHER INFORMATION CONTACT:
Dated: June 28, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide
Acquisition Policy, Office of Acquisition
Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 16 as set forth
below:
SUPPLEMENTARY INFORMATION:
PART 16—TYPES OF CONTRACTS
I. Background
1. The authority citation for 48 CFR
part 16 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
2. Amend section 16.505 by revising
paragraph (a)(9)(ii) to read as follows:
■
16.505
Ordering.
*
*
*
*
*
(a) * * *
(9) * * *
(ii) The authority to protest the
placement of an order under this
subpart expires on September 30, 2016,
for DoD, NASA and the Coast Guard (10
U.S.C. 2304a(d) and 2304c(e)), and on
May 27, 2011, for other agencies (41
U.S.C. 4103(d) and 4106(f)).
*
*
*
*
*
[FR Doc. 2011–16675 Filed 7–1–11; 8:45 am]
BILLING CODE 6820–EP–P
IV. Paperwork Reduction Act
VerDate Mar<15>2010
comments received in response to this
interim rule in the formation of the final
rule.
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 23 and 52
[FAC 2005–53; FAR Case 2009–028; Item
V; Docket 2010–0097, Sequence 1]
RIN 9000–AL64
Federal Acquisition Regulation;
Encouraging Contractor Policies To
Ban Text Messaging While Driving
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, with changes, the
interim rule amending the Federal
Acquisition Regulation (FAR) to
implement Executive Order (E.O.)
SUMMARY:
PO 00000
Frm 00010
Fmt 4701
Sfmt 4700
DoD, GSA, and NASA published an
interim rule in the Federal Register at
75 FR 60264 on September 29, 2010, to
amend the FAR to implement E.O.
13513 (October 1, 2009), published in
the Federal Register at 74 FR 51225 on
October 6, 2009, entitled ‘‘Federal
Leadership on Reducing Text Messaging
while Driving.’’ The rule requires
Government agencies to encourage
Federal contractors and subcontractors
to adopt and enforce policies that ban
text messaging while driving. This
requirement applies to all solicitations
and contracts entered into on or after
September 29, 2010. The interim rule
encouraged contracting officers to
modify existing contracts to include the
FAR clause 52.223–18, Contractor
Policy to Ban Text Messaging While
Driving. The clause in the interim rule
indicated that Federal contractors
should adopt and enforce policies
banning text messaging while driving
company-owned or -rented vehicles or
Government-owned vehicles; or
privately-owned vehicles when on
official Government business or when
performing any work for or on behalf of
the Government. The interim rule clause
also indicated that Federal contractors
should conduct initiatives such as—
(1) Establishing new rules and
programs or re-evaluating existing
programs to prohibit text messaging
while driving; and
(2) Education, awareness, and other
outreach programs to inform employees
about the safety risks associated with
texting while driving.
As a result of public comments, the
Civilian Agency Acquisition Council
and the Defense Acquisition Regulations
Council (the Councils) changed
‘‘should’’ to ‘‘encouraged to’’ in this
final rule clause. The revised language
better aligns with the intent of the
Executive Order. A corresponding
change has been made to the clause
title. Five respondents submitted
comments on the interim rule.
E:\FR\FM\05JYR2.SGM
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]]>Agencies
[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Rules and Regulations]
[Pages 39238-39240]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-16675]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005-53; FAR Case 2011-015; Item IV; Docket 2011-0015, Sequence 1]
RIN 9000-AM08
Federal Acquisition Regulation; Extension of Sunset Date for
Protests of Task and Delivery Orders
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement section 825 of the
Ike Skelton National Defense Authorization Act for Fiscal Year 2011.
The statute extends the sunset date for protests against the award of
task or delivery orders by DoD, NASA, and the Coast Guard from May 27,
2011, to September 30, 2016.
DATES: Effective Date: July 5, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before September 6, 2011 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-53, FAR Case 2011-
015, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2011-015'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2011-015.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2011-015'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), Attn: Hada Flowers, 1275 First
[[Page 39239]]
Street, NE., 7th Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-53, FAR
Case 2011-015, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Ms. Deborah Lague, Procurement
Analyst, at (202) 694-8149, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2010-53, FAR
Case 2011-015.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are publishing this interim rule amending the
FAR to implement section 825 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383, enacted
January 7, 2011). Section 825 amends 10 U.S.C. 2304c(e) to extend the
sunset date for protests against the award of task and delivery orders
from May 27, 2011, to September 30, 2016, but only for Title 10
agencies, i.e., DoD, NASA, and the Coast Guard. There has been no
comparable change to Title 41, so the sunset date for protests against
the award of task and delivery orders by other agencies remains May 27,
2011. With this change, contractors will no longer be able to protest
task or delivery orders awarded by agencies other than DoD, NASA, and
the Coast Guard. There is no effect on Government automated systems.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
III. Regulatory Flexibility Act
The change may 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.. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
This rule was initiated to implement section 825 of the Ike
Skelton National Defense Authorization Act for Fiscal Year 2011
(Pub. L. 111-383), enacted January 7, 2011. Section 825 amends 10
U.S.C. 2304c(e) to extend the sunset date for protests against the
award of task or delivery orders by DoD, NASA, and the Coast Guard
from May 27, 2011, to September 30, 2016.
Prior to the National Defense Authorization Act for Fiscal Year
2008, there was no authority for protests against the award of task
or delivery orders under indefinite-delivery contracts. That
statute, however, amended Titles 10 and 41 to allow protests against
the award, or proposed award, of a task or delivery order by any
Federal agency if (a) the protest is on the grounds that the order
increases the scope, period, or maximum value of the contract, or
(b) the order is valued at over $10 million.
This protest authority has been in effect for the past 2\1/2\
years. Section 825 extended the sunset date for Title 10 agencies
(DoD, NASA, and the Coast Guard). However, there has not been a
similar change to the Title 41 authority, so the sunset date remains
May 27, 2011, for all other agencies.
The authority to file protests against the award of task or
delivery orders is relatively new, and there is little data
available, as such protests may be filed with the agency or General
Accountability Office (GAO). Section 843 of Pub. L. 110-181 gave the
Comptroller General of the United States the exclusive jurisdiction
of a protest of an order valued in excess of $10 million. Data on
agency-level protests is not compiled outside the agency concerned,
so we had to base our estimate on the total number of protests filed
at the GAO in Fiscal Years 2009 and 2010. The data was extracted
from GAO's latest report to the Congress. Only Fiscal Years 2009 and
2010 protest numbers were used because the authority to protest
against task or delivery orders did not exist prior to that time.
Offerors can protest to the agency or to the GAO. Assuming that
one-half of all protests are filed with the GAO and the other half
are filed with the agency, then the average number of protests filed
per fiscal year would be 4,300 (see below):
[GRAPHIC] [TIFF OMITTED] TR05JY11.011
Protests may be filed against the award of contracts as well as
certain task or delivery orders. There are few prohibitions on the
grounds for protests against the award of a contract. However,
protests against the award of a task or delivery order are limited
to (a) a protest on the grounds that the order increases the scope,
period, or maximum value of the contract; or (b) a protest of an
order valued in excess of $10 million. Therefore, it is reasonable
to assume that less than 50 percent of the total number of protests
filed is against the award of a task or delivery order. A generous
estimate is approximately one-fourth, or 1,075. Likewise, only a
percentage of the protests against the award of a task or delivery
order are made by small businesses. Even if we assume that
percentage to be one-half, then the number of protests filed by
small businesses against the award of a task or delivery order is
estimated to be 539.
[GRAPHIC] [TIFF OMITTED] TR05JY11.012
The number 16 represents the number of small business task or
delivery order protests sustained in a fiscal year. However, this
number is representative of protests against awards by all
Government agencies, not just DoD, NASA, and the Coast Guard. If the
[[Page 39240]]
assumption is made that half of the protests sustained are on DoD,
NASA, or Coast Guard task or delivery orders, then it can be
estimated that extending the sunset date for protests against task
or delivery order awards by Title 10 agencies will result in an
additional 8 awards to small businesses per fiscal year that the
protest authority remains in effect.
There is no requirement for small entities to submit any
information under this provision. Therefore, no professional skills
are necessary on the part of small entities for compliance, and the
cost to small entities associated with this provision is $0.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no practical alternatives that will accomplish the
objectives of the interim rule, i.e., implementation of a statutory
mandate.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. DoD, GSA,
and NASA invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in the subpart affected by this
rule in accordance with 5 U.S.C. 610. Interested parties must submit
such comments separately and should cite 5 U.S.C. 610 (FAC 2005-53, FAR
Case 2011-015) in correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Ike Skelton National Defense Authorization Act
for Fiscal Year 2011 (Pub. L. 111-383) was enacted on January 7, 2011,
and requires the extension of the sunset date for the affected agencies
to be published in the FAR prior to the expiration of the previous
sunset date, May 27, 2011. However, pursuant to 41 U.S.C. 1707 and FAR
1.501-3(b), DoD, GSA, and NASA will consider public comments received
in response to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Part 16
Government procurement.
Dated: June 28, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as set forth
below:
PART 16--TYPES OF CONTRACTS
0
1. The authority citation for 48 CFR part 16 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
0
2. Amend section 16.505 by revising paragraph (a)(9)(ii) to read as
follows:
16.505 Ordering.
* * * * *
(a) * * *
(9) * * *
(ii) The authority to protest the placement of an order under this
subpart expires on September 30, 2016, for DoD, NASA and the Coast
Guard (10 U.S.C. 2304a(d) and 2304c(e)), and on May 27, 2011, for other
agencies (41 U.S.C. 4103(d) and 4106(f)).
* * * * *
[FR Doc. 2011-16675 Filed 7-1-11; 8:45 am]
BILLING CODE 6820-EP-P
