Federal Acquisition Regulation; Clarification on Justification for Urgent Noncompetitive Awards Exceeding One Year, 78378-78379 [2014-30417]

Download as PDF 78378 Federal Register / Vol. 79, No. 249 / Tuesday, December 30, 2014 / Proposed Rules December 27, 2013 (78 FR 78807). As required under section 205, a status report of the public comments related to safe harbors received in response to that notice is set forth in Appendix F of OIG’s Fall 2014 Semiannual Report.1 OIG is not seeking additional public comment on the proposals listed in Appendix F at this time. Rather, this notice seeks additional recommendations regarding the development of new or modified safe harbor regulations and new Special Fraud Alerts beyond those summarized in Appendix F. A detailed explanation of justifications for, or empirical data supporting, a suggestion for a safe harbor or Special Fraud Alert would be helpful and should, if possible, be included in any response to this solicitation. A. Criteria for Modifying and Establishing Safe Harbor Provisions In accordance with section 205 of HIPAA, we will consider a number of factors in reviewing proposals for new or modified safe harbor provisions, such as the extent to which the proposals would affect an increase or decrease in: • Access to health care services, • the quality of health care services, • patient freedom of choice among health care providers, • competition among health care providers, • the cost to Federal health care programs, • the potential overutilization of health care services, and • the ability of health care facilities to provide services in medically underserved areas or to medically underserved populations. In addition, we will also consider other factors, including, for example, the existence (or nonexistence) of any potential financial benefit to health care professionals or providers that may take into account their decisions whether to (1) order a health care item or service or (2) arrange for a referral of health care items or services to a particular practitioner or provider. tkelley on DSK3SPTVN1PROD with PROPOSALS B. Criteria for Developing Special Fraud Alerts In determining whether to issue additional Special Fraud Alerts, we will consider whether, and to what extent, the practices that would be identified in a new Special Fraud Alert may result in any of the consequences set forth above, as well as the volume and frequency of 1 The OIG Semiannual Report to Congress can be accessed through the OIG Web site at https:// oig.hhs.gov/publications/semiannual.asp. VerDate Sep<11>2014 17:03 Dec 29, 2014 Jkt 235001 the conduct that would be identified in the Special Fraud Alert. Dated: December 18, 2014. Daniel R. Levinson, Inspector General. [FR Doc. 2014–30156 Filed 12–29–14; 8:45 am] BILLING CODE 4152–01–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 6 [FAR Case 2014–020; Docket No. 2014– 0020; Sequence No. 1] RIN 9000–AM86 Federal Acquisition Regulation; Clarification on Justification for Urgent Noncompetitive Awards Exceeding One Year Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Proposed rule. AGENCY: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to clarify that a determination of exceptional circumstances is needed when a noncompetitive contract awarded on the basis of unusual and compelling urgency exceeds one year, either at time of award or due to post-award modifications. SUMMARY: Interested parties should submit written comments to the Regulatory Secretariat at one of the addresses shown below on or before March 2, 2015 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAR Case 2014–020 by any of the following methods: • Regulations.gov: https:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ‘‘FAR Case 2014–020’’. Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2014– 020’’. Follow the instructions provided at the ‘‘Comment Now’’ screen. Please include your name, company name (if any), and ‘‘FAR Case 2014–020’’ on your attached document. • Fax: 202–501–4067. • Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F DATES: PO 00000 Frm 00065 Fmt 4702 Sfmt 4702 Street NW., 2nd Floor, Washington, DC 20405. Instructions: Please submit comments only and cite FAR Case 2014–020, 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: Mr. Michael O. Jackson, Procurement Analyst, at 202–208–4949, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAR Case 2014–020. SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA are revising the FAR in response to a Government Accountability Office (GAO) report, GAO–14–304, Federal Contracting: Noncompetitive Contracts Based on Urgency Need Additional Oversight, dated March 2014. On October 14, 2009, the FAR was amended to implement section 862 of the Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110–417) which restricted the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances. Such contracts may not exceed one year unless the head of the executive agency determines that exceptional circumstances apply. GAO found that agencies did not make the required determination for the ten contracts in GAO’s sample that had a period of performance of more than one year. As a result, GAO recommended that DoD, U.S. Department of State and U.S. Agency for International Development provide guidance to improve data reliability and oversight for contracts awarded using the urgency exception. Additionally, GAO recommended that the Director of the Office of Management and Budget, through the Office of Federal Procurement Policy, provide guidance to clarify when determinations of exceptional circumstances are needed when a noncompetitive contract awarded on the basis of unusual and compelling urgency exceeds one year, either at the time of award or because it was modified after contract award. This rule clarifies that a determination of exceptional circumstances is needed whenever the period of performance of a noncompetitive contract awarded on the basis of unusual and compelling urgency is extended beyond a year. E:\FR\FM\30DEP1.SGM 30DEP1 Federal Register / Vol. 79, No. 249 / Tuesday, December 30, 2014 / Proposed Rules 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. DoD, GSA, and NASA do not expect this rule to 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 it only clarifies when determination of exceptional circumstances is needed. However, an Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows: tkelley on DSK3SPTVN1PROD with PROPOSALS The purpose of this rule is to clarify that a determination of exceptional circumstances is needed when the period of performance, inclusive of options and modifications, of a noncompetitive contract awarded on the basis of unusual and compelling urgency is greater than one year. This rule only impacts the internal procedures of the Federal government. There are no recordkeeping, reporting, or other compliance requirements associated with the proposed rule. The rule does not duplicate, overlap, or conflict with any other Federal rules. 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 subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2014–020), in correspondence. VerDate Sep<11>2014 17:03 Dec 29, 2014 Jkt 235001 IV. Paperwork Reduction Act 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). DEPARTMENT OF THE INTERIOR List of Subject in 48 CFR Part 6 Government procurement. RIN 1018–BA67 Dated: December 22, 2014. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Therefore, DoD, GSA, and NASA propose amending 48 CFR part 6 as set forth below: PART 6—COMPETITION REQUIREMENTS 1. The authority citation for 48 CFR part 6 continues to read as follows: ■ III. Regulatory Flexibility Act 78379 Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. 2. Amend section 6.302–2 by— a. Revising paragraph (d)(1)(ii); b. Redesignating paragraphs (d)(2) through (d)(4) as paragraphs (d)(3) through (d)(5), respectively; ■ c. Adding a new paragraph (d)(2); and ■ d. Revising newly redesignated paragraph (d)(3). The revised and added text reads as follows: ■ ■ ■ 6.302–2 Unusual and compelling urgency. * * * * * (d) * * * (1) * * * (ii) May not exceed one year, including all options, unless the head of the agency entering into the contract determines that exceptional circumstances apply. This determination must be documented in the contract file. (2)(i) A separate determination shall be made when executing any modification or option that extends the period of performance beyond one year. This requirement does not apply to the exercise of options previously addressed in the determination required at (d)(1)(ii) of this section. Any subsequent extension requires a new determination. (ii) The determination shall be approved at the same level as the level to which the agency head authority in (d)(1)(ii) of this section is delegated. (3) The requirements in paragraphs (d)(1) and (d)(2) of this section shall apply to any contract in an amount greater than the simplified acquisition threshold. * * * * * [FR Doc. 2014–30417 Filed 12–29–14; 8:45 am] BILLING CODE 6820–EP–P PO 00000 Frm 00066 Fmt 4702 Sfmt 4702 Fish and Wildlife Service 50 CFR Part 20 [Docket No. FWS–R9–HQ–2014–0064; FF09M21200–145–FXMB1231099BPP0] Migratory Bird Hunting; Service Regulations Committee Meeting Fish and Wildlife Service, Interior. ACTION: Notice of meeting. AGENCY: The Fish and Wildlife Service (hereinafter Service) will conduct an open meeting on January 28, 2015, to identify and discuss preliminary issues concerning the 2015–16 migratory bird hunting regulations. DATES: The meeting will be held January 28, 2015. ADDRESSES: The Service Regulations Committee meeting will be available to the public in the Rachel Carson conference room at 5275 Leesburg Pike, Falls Church, Virginia 22041. FOR FURTHER INFORMATION CONTACT: Chief, Division of Migratory Bird Management, U.S. Fish and Wildlife Service, Department of the Interior, MS: MB, 5275 Leesburg Pike, Falls Church, VA 22041–3803; (703) 358–1714. SUPPLEMENTARY INFORMATION: Under the authority of the Migratory Bird Treaty Act (16 U.S.C. 703–712), the Service regulates the hunting of migratory game birds. We update the migratory game bird hunting regulations, located at 50 CFR part 20, annually. Through these regulations, we establish the frameworks, or outside limits, for season lengths, bag limits, and areas for migratory game bird hunting. To help us in this process, we have administratively divided the nation into four Flyways (Atlantic, Mississippi, Central, and Pacific), each of which has a Flyway Council. Representatives from the Service, the Service’s Migratory Bird Regulations Committee, and Flyway Council Consultants will meet on January 28, 2015, at 11:00 a.m. to identify preliminary issues concerning the 2015–16 migratory bird hunting regulations for discussion and review by the Flyway Councils at their March meetings. In accordance with Department of the Interior (hereinafter Department) policy regarding meetings of the Service Regulations Committee attended by any person outside the Department, these meetings are open to public observation. The Service is committed to providing access to this meeting for all SUMMARY: E:\FR\FM\30DEP1.SGM 30DEP1

Agencies

[Federal Register Volume 79, Number 249 (Tuesday, December 30, 2014)]
[Proposed Rules]
[Pages 78378-78379]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-30417]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 6

[FAR Case 2014-020; Docket No. 2014-0020; Sequence No. 1]
RIN 9000-AM86


Federal Acquisition Regulation; Clarification on Justification 
for Urgent Noncompetitive Awards Exceeding One Year

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

ACTION: Proposed rule.

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

SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to clarify that a determination of 
exceptional circumstances is needed when a noncompetitive contract 
awarded on the basis of unusual and compelling urgency exceeds one 
year, either at time of award or due to post-award modifications.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
March 2, 2015 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2014-020 by any of 
the following methods:
     Regulations.gov: https://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2014-020''. Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2014-020''. Follow the instructions provided at the ``Comment 
Now'' screen. Please include your name, company name (if any), and 
``FAR Case 2014-020'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2014-
020, 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: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2014-020.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are revising the FAR in response to a Government 
Accountability Office (GAO) report, GAO-14-304, Federal Contracting: 
Noncompetitive Contracts Based on Urgency Need Additional Oversight, 
dated March 2014. On October 14, 2009, the FAR was amended to implement 
section 862 of the Duncan Hunter National Defense Authorization Act 
(NDAA) for Fiscal Year (FY) 2009 (Pub. L. 110-417) which restricted the 
length of contracts awarded noncompetitively under unusual and 
compelling urgency circumstances. Such contracts may not exceed one 
year unless the head of the executive agency determines that 
exceptional circumstances apply.
    GAO found that agencies did not make the required determination for 
the ten contracts in GAO's sample that had a period of performance of 
more than one year. As a result, GAO recommended that DoD, U.S. 
Department of State and U.S. Agency for International Development 
provide guidance to improve data reliability and oversight for 
contracts awarded using the urgency exception.
    Additionally, GAO recommended that the Director of the Office of 
Management and Budget, through the Office of Federal Procurement 
Policy, provide guidance to clarify when determinations of exceptional 
circumstances are needed when a noncompetitive contract awarded on the 
basis of unusual and compelling urgency exceeds one year, either at the 
time of award or because it was modified after contract award.
    This rule clarifies that a determination of exceptional 
circumstances is needed whenever the period of performance of a 
noncompetitive contract awarded on the basis of unusual and compelling 
urgency is extended beyond a year.

[[Page 78379]]

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

    DoD, GSA, and NASA do not expect this rule to 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 it only clarifies when determination of exceptional 
circumstances is needed. However, an Initial Regulatory Flexibility 
Analysis (IRFA) has been performed and is summarized as follows:

    The purpose of this rule is to clarify that a determination of 
exceptional circumstances is needed when the period of performance, 
inclusive of options and modifications, of a noncompetitive contract 
awarded on the basis of unusual and compelling urgency is greater 
than one year. This rule only impacts the internal procedures of the 
Federal government.
    There are no recordkeeping, reporting, or other compliance 
requirements associated with the proposed rule. The rule does not 
duplicate, overlap, or conflict with any other Federal rules.

    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 subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-020), 
in correspondence.

IV. Paperwork Reduction Act

    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 Subject in 48 CFR Part 6

    Government procurement.

    Dated: December 22, 2014.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 6 as set 
forth below:

PART 6--COMPETITION REQUIREMENTS

0
1. The authority citation for 48 CFR part 6 continues to read as 
follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

0
2. Amend section 6.302-2 by--
0
a. Revising paragraph (d)(1)(ii);
0
b. Redesignating paragraphs (d)(2) through (d)(4) as paragraphs (d)(3) 
through (d)(5), respectively;
0
c. Adding a new paragraph (d)(2); and
0
d. Revising newly redesignated paragraph (d)(3).
    The revised and added text reads as follows:


6.302-2  Unusual and compelling urgency.

* * * * *
    (d) * * *
    (1) * * *
    (ii) May not exceed one year, including all options, unless the 
head of the agency entering into the contract determines that 
exceptional circumstances apply. This determination must be documented 
in the contract file.
    (2)(i) A separate determination shall be made when executing any 
modification or option that extends the period of performance beyond 
one year. This requirement does not apply to the exercise of options 
previously addressed in the determination required at (d)(1)(ii) of 
this section. Any subsequent extension requires a new determination.
    (ii) The determination shall be approved at the same level as the 
level to which the agency head authority in (d)(1)(ii) of this section 
is delegated.
    (3) The requirements in paragraphs (d)(1) and (d)(2) of this 
section shall apply to any contract in an amount greater than the 
simplified acquisition threshold.
* * * * *
[FR Doc. 2014-30417 Filed 12-29-14; 8:45 am]
BILLING CODE 6820-EP-P

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