Federal Acquisition Regulation; Extension of Sunset Date for Protests of Task and Delivery Orders, 6187-6188 [2013-01747]

Download as PDF Federal Register / Vol. 78, No. 19 / Tuesday, January 29, 2013 / Rules and Regulations E.O. 12866, Regulatory Planning and Review, dated September 30, 1993, and that 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 this rule will only impact an offeror that is an inverted domestic corporation and wants to do business with the Government. It is expected that the number of entities impacted by this rule will be minimal. Small business concerns are unlikely to have been incorporated in the United States and then reincorporated in a tax haven; the major players in these transactions are reportedly the very large multinational corporations. No domestic entities will be directly impacted by this rule. For the definition of ‘‘small business,’’ the Regulatory Flexibility Act refers to the Small Business Act, which in turn allows the U.S. Small Business Administration (SBA) Administrator to specify detailed definitions or standards (5 U.S.C. 601(3) and 15 U.S.C. 632(a)). The SBA regulations at 13 CFR 121.105 discuss who is a small business: ‘‘(a)(1) Except for small agricultural cooperatives, a business concern eligible for assistance from SBA as a small business is a business entity organized for profit, with a place of business located in the United States, and which operates primarily within the United States or which makes a significant contribution to the U.S. economy through payment of taxes or use of American products, materials or labor.’’ Also see the response to the comment at II.B.5. of this preamble. Therefore, a Final Regulatory Flexibility Analysis has not been performed. V. Paperwork Reduction Act srobinson on DSK4SPTVN1PROD with The 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). List of Subjects in 48 CFR Parts 9 and 52 Government Procurement. VerDate Mar<15>2010 17:42 Jan 28, 2013 Jkt 229001 Dated: January 23, 2013. Laura Auletta, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Interim Rule Adopted as Final Without Change Accordingly, the interim rule amending 48 CFR parts 9 and 52, which was published in the Federal Register at 77 FR 27547 on May 10, 2012, is adopted as final without change. ■ [FR Doc. 2013–01745 Filed 1–28–13; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 16 [FAC 2005–65; FAR Case 2012–007; Item II; Docket 2012–0007, Sequence 1] RIN 9000–AM26 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: Final rule. AGENCIES: DoD, GSA, and NASA are adopting as final, without change, an interim rule amending the Federal Acquisition Regulation (FAR) to implement sections of the Ike Skelton National Defense Authorization Act for Fiscal Year 2011 and the National Defense Authorization Act for Fiscal Year 2012. These statutes extend the sunset date for protests against the award of task or delivery orders from May 27, 2011 to September 30, 2016. DATES: Effective Date: January 29, 2013. 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 2005–65, FAR Case 2012–007. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD, GSA, and NASA originally published an interim rule in the Federal Register at 76 FR 39238 on July 5, 2011, entitled ‘‘Extension of Sunset Date for PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 6187 Protests of Task and Delivery Orders’’ (FAC 2005–53, FAR Case 2011–015). The rule implemented section 825 of the Ike Skelton National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011 (Pub. L. 111–383, enacted January 7, 2011). The rule extended the sunset date for protests of task and delivery orders valued in excess of $10 million for Title 10 agencies, namely DoD, NASA and the Coast Guard. The rule did not extend the sunset date for Title 41 agencies as there was no comparable change to Title 41 at that time. Subsequent to the publication of the interim rule under FAR Case 2011–015, section 813 of the NDAA for FY 2012 (Pub. L. 112–81, enacted December 31, 2011) made comparable changes to Title 41 to extend the sunset date for protests against the award of task and delivery orders from May 27, 2011 to September 30, 2016. In order to accomplish the statutory changes for both Title 10 and Title 41, FAR Case 2011–015 was not issued as a final rule and was instead incorporated into an interim rule under FAR Case 2012–007. DoD, GSA, and NASA published an interim rule in the Federal Register at 77 FR 44062 on July 26, 2012, entitled ‘‘Extension of Sunset Date for Protests of Task and Delivery Orders’’ (FAC 2005– 60, FAR Case 2012–007). The rule implemented section 825 of the Ike Skelton National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011 (Pub. L. 111–383, enacted January 7, 2011) and section 813 of the NDAA for FY 2012 (Pub. L. 112–81, enacted December 31, 2011). The rule extended the sunset date for protests of task and delivery orders valued in excess of $10 million from May 27, 2011, to September 30, 2016. II. Discussion and Analysis No public comments were received; therefore the Defense Acquisition Regulations Council and the Civilian Agency Acquisition Council are finalizing the interim rule without change. III. 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 E:\FR\FM\29JAR2.SGM 29JAR2 6188 Federal Register / Vol. 78, No. 19 / Tuesday, January 29, 2013 / Rules and Regulations flexibility. The Office of Information and Regulatory Affairs (OIRA) has deemed that 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, and that this rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act The changes 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 Final Regulatory Flexibility Analysis (FRFA) is summarized as follows. This rule implements section 825 of the NDAA for FY 2011 and section 813 of the NDAA for FY 2012, which extended the sunset date for protests of task and delivery orders valued in excess of $10 million from May 27, 2011, to September 30, 2016. 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 Government Accountability Office (GAO). GAO has exclusive jurisdiction of a protest of an order valued in excess of $10 million. Data on agency-level protests are not compiled outside the agency concerned; therefore estimates are based on the total number of protests filed at the GAO in FYs 2009, 2010, and 2011. 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 4,466 (see below): Fiscal Year 2009 protests to GAO .... 2,000 Fiscal Year 2010 protests to GAO .... 2,300 Fiscal Year 2011 protests to GAO .... 2,400 Divided by ......................................... Average annual GAO protests .......... Multiplied by ..................................... ACTION: # protests of task/delivery orders by small businesses ............................. % of protests sustained ..................... 559 × .03 # of task/delivery orders protests sustained ........................................ 17 The number 17 represents the number of small business task or delivery order protests sustained in a fiscal year. This number is representative of protests against awards by all Government agencies. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. V. Paperwork Reduction Act The final 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). List of Subjects in 48 CFR Part 16 Government procurement. Dated: January 23, 2013. Laura Auletta, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Interim Rule Adopted as Final Without Change Accordingly, the interim rule amending 48 CFR part 16, which was published in the Federal Register at 77 FR 44062 on July 26, 2012, (which incorporated an interim rule published in the Federal Register at 76 FR 39238 6,700 on July 5, 2011), is adopted as final 3 without change. 2,233 2 ■ [FR Doc. 2013–01747 Filed 1–28–13; 8:45 am] BILLING CODE 6820–EP–P srobinson on DSK4SPTVN1PROD with Per Fiscal Year; Estimated total number of protests ......................... 4,466 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 1,117. 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 559. VerDate Mar<15>2010 17:42 Jan 28, 2013 Jkt 229001 DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 25 and 52 [FAC 2005–65; FAR Case 2012–012; Item III; Docket 2012–0012, Sequence 1] RIN 9000–AM24 Federal Acquisition Regulation; Free Trade Agreement—Colombia Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). AGENCY: PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 Final rule. DoD, GSA, and NASA have adopted as final, with change, the interim rule amending the Federal Acquisition Regulation (FAR) to implement the United States-Colombia Trade Promotion Agreement. This Trade Promotion Agreement is a free trade agreement (FTA) that provides for mutually non-discriminatory treatment of eligible products and services from Colombia. DATES: Effective Date: January 29, 2013. FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501– 4755. Please cite FAC 2005–65, FAR Case 2012–012. SUPPLEMENTARY INFORMATION: SUMMARY: I. Background DoD, GSA, and NASA published an interim rule in the Federal Register at 77 FR 27548 on May 10, 2012, to implement the United States-Colombia Trade Promotion Agreement Implementation Act (Pub. L. 112–42) (19 U.S.C. 3805 note). The comment period closed on July 9, 2012. No comments were received on the interim rule. The interim rule added Colombia to the definition of ‘‘Free Trade Agreement country’’ in multiple locations in the FAR. The Colombia FTA covers acquisition of supplies and services equal to or exceeding $77,494. The threshold for the Colombia FTA is $7,777,000 for construction. The excluded services for the Colombia FTA are the same as for the Bahrain FTA, Dominican Republic— Central American FTA, Chile FTA, NAFTA, Oman FTA, and Peru FTA. Because the Colombia FTA construction threshold of $7,777,000 is the same as the World Trade Organization (WTO) Government Procurement Agreement (GPA) threshold, no new clause alternates are required for the Buy American Act— Construction Materials under Trade Agreements provision and clause (FAR 52.225–11 and 52.225–12) or the Recovery Act FAR clauses at 52.225–23 and 52.225–24. The final rule corrects the alphabetical order of the listing of the Colombia Free Trade Agreement in the heading of the fourth column of the table at FAR 25.401(b). II. Executive Order 12866 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs E:\FR\FM\29JAR2.SGM 29JAR2

Agencies

[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Rules and Regulations]
[Pages 6187-6188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01747]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAC 2005-65; FAR Case 2012-007; Item II; Docket 2012-0007, Sequence 1]
RIN 9000-AM26


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: Final rule.

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

SUMMARY: DoD, GSA, and NASA are adopting as final, without change, an 
interim rule amending the Federal Acquisition Regulation (FAR) to 
implement sections of the Ike Skelton National Defense Authorization 
Act for Fiscal Year 2011 and the National Defense Authorization Act for 
Fiscal Year 2012. These statutes extend the sunset date for protests 
against the award of task or delivery orders from May 27, 2011 to 
September 30, 2016.

DATES: Effective Date: January 29, 2013.

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 2005-65, FAR Case 2012-
007.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA originally published an interim rule in the 
Federal Register at 76 FR 39238 on July 5, 2011, entitled ``Extension 
of Sunset Date for Protests of Task and Delivery Orders'' (FAC 2005-53, 
FAR Case 2011-015). The rule implemented section 825 of the Ike Skelton 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011 
(Pub. L. 111-383, enacted January 7, 2011). The rule extended the 
sunset date for protests of task and delivery orders valued in excess 
of $10 million for Title 10 agencies, namely DoD, NASA and the Coast 
Guard. The rule did not extend the sunset date for Title 41 agencies as 
there was no comparable change to Title 41 at that time.
    Subsequent to the publication of the interim rule under FAR Case 
2011-015, section 813 of the NDAA for FY 2012 (Pub. L. 112-81, enacted 
December 31, 2011) made comparable changes to Title 41 to extend the 
sunset date for protests against the award of task and delivery orders 
from May 27, 2011 to September 30, 2016. In order to accomplish the 
statutory changes for both Title 10 and Title 41, FAR Case 2011-015 was 
not issued as a final rule and was instead incorporated into an interim 
rule under FAR Case 2012-007.
    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 77 FR 44062 on July 26, 2012, entitled ``Extension of 
Sunset Date for Protests of Task and Delivery Orders'' (FAC 2005-60, 
FAR Case 2012-007). The rule implemented section 825 of the Ike Skelton 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011 
(Pub. L. 111-383, enacted January 7, 2011) and section 813 of the NDAA 
for FY 2012 (Pub. L. 112-81, enacted December 31, 2011). The rule 
extended the sunset date for protests of task and delivery orders 
valued in excess of $10 million from May 27, 2011, to September 30, 
2016.

II. Discussion and Analysis

    No public comments were received; therefore the Defense Acquisition 
Regulations Council and the Civilian Agency Acquisition Council are 
finalizing the interim rule without change.

III. 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

[[Page 6188]]

flexibility. The Office of Information and Regulatory Affairs (OIRA) 
has deemed that 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, and that this 
rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    The changes 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 Final Regulatory Flexibility 
Analysis (FRFA) is summarized as follows.

    This rule implements section 825 of the NDAA for FY 2011 and 
section 813 of the NDAA for FY 2012, which extended the sunset date 
for protests of task and delivery orders valued in excess of $10 
million from May 27, 2011, to September 30, 2016.
    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 
Government Accountability Office (GAO). GAO has exclusive 
jurisdiction of a protest of an order valued in excess of $10 
million. Data on agency-level protests are not compiled outside the 
agency concerned; therefore estimates are based on the total number 
of protests filed at the GAO in FYs 2009, 2010, and 2011.
    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 4,466 (see below):

Fiscal Year 2009 protests to GAO................................   2,000
Fiscal Year 2010 protests to GAO................................   2,300
Fiscal Year 2011 protests to GAO................................   2,400
                                                                 -------
                                                                   6,700
Divided by......................................................       3
Average annual GAO protests.....................................   2,233
Multiplied by...................................................       2
                                                                 -------
Per Fiscal Year; Estimated total number of protests.............   4,466
 

    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 1,117. 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 559.

 protests of task/delivery orders by small businesses..     559
% of protests sustained.........................................   x .03
                                                                 -------
 of task/delivery orders protests sustained............      17
 

    The number 17 represents the number of small business task or 
delivery order protests sustained in a fiscal year. This number is 
representative of protests against awards by all Government 
agencies.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

V. Paperwork Reduction Act

    The final 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).

List of Subjects in 48 CFR Part 16

    Government procurement.

    Dated: January 23, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

Interim Rule Adopted as Final Without Change

0
Accordingly, the interim rule amending 48 CFR part 16, which was 
published in the Federal Register at 77 FR 44062 on July 26, 2012, 
(which incorporated an interim rule published in the Federal Register 
at 76 FR 39238 on July 5, 2011), is adopted as final without change.

[FR Doc. 2013-01747 Filed 1-28-13; 8:45 am]
BILLING CODE 6820-EP-P

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