Federal Acquisition Regulation; Clarification on Justification for Urgent Noncompetitive Awards Exceeding One Year, 38308-38309 [2015-16210]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 80, Number 127 (Thursday, July 2, 2015)]
[Rules and Regulations]
[Pages 38308-38309]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-16210]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 6

[FAC 2005-83; FAR Case 2014-020; Item IV; 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: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending 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 1 year, 
either at time of award or due to post-award modifications.

DATES: Effective: August 3, 2015.

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 FAC 2005-83, FAR Case 2014-
020.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 79 FR 78378 on December 30, 2014. The rule was 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. The proposed rule language at FAR 6.302-
2(d) has been revised to further clarify it. One respondent submitted a 
comment on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comment in the 
development of the final rule. The comment resulted in no changes to 
the final rule. A discussion of the comment is provided in the 
following paragraph.
    Comment: The respondent stated that there should be no 
justification for extending any contract that is noncompetitive for 
more than one year.
    Response: The extension of non-competitive contracts is allowable. 
The purpose of this case is to ensure that when the extension has been 
deemed to be warranted, that the proper justification and documentation 
are prepared and included in the contract file.

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 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

[[Page 38309]]

Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA 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 rule. The rule does not duplicate, 
overlap, or conflict with any other Federal rules.
    No issues were raised by the public comments in response to the 
initial regulatory flexibility analysis.

    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 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 CFR Part 6

    Government procurement.

    Dated: June 18, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 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. Removing from paragraph (d)(1) ``contract awarded'' and adding 
``contract awarded or modified'' in its place;
0
b. Revising paragraph (d)(1)(ii);
0
c. Redesignating paragraphs (d)(2) through (d)(4) as paragraphs (d)(3) 
through (d)(5), respectively;
0
d. Adding a new paragraph (d)(2); and
0
e. Revising the newly designated paragraph (d)(3).
    The revisions and addition read 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 determines that exceptional circumstances apply. 
This determination must be documented in the contract file.
    (2)(i) Any subsequent modification using this authority, which will 
extend the period of performance beyond one year under this same 
authority, requires a separate determination. This determination is 
only required if the cumulative period of performance using this 
authority exceeds 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.
    (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. 2015-16210 Filed 7-1-15; 8:45 am]
 BILLING CODE 6820-EP-P