Federal Acquisition Regulation: Clarification of Requirement for Justifications for 8(a) Sole Source Contracts, 80012-80014 [2016-27245]

Agencies

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

[Federal Register Volume 81, Number 220 (Tuesday, November 15, 2016)]
[Proposed Rules]
[Pages 80012-80014]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-27245]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 6, and 19

[FAR Case 2013-018; Docket No. 2013-0018, Sequence No. 1]
RIN 9000-AM90


Federal Acquisition Regulation: Clarification of Requirement for 
Justifications for 8(a) Sole Source Contracts

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

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to clarify the guidance for sole-source 
8(a) contract awards exceeding $22 million.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at one of the addresses shown below on 
or before January 17, 2017 to be considered in the formation of the 
final rule.

ADDRESSES: Submit comments in response to FAR Case 2013-018 by any one 
of the following methods:
     Regulations.gov: https://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by entering ``FAR Case 
2013-018'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2013-018.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2013-018'' on your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd 
floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2013-
018, 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. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement 
Analyst, via email at mahruba.uddowla@gsa, or telephone at 703-605-
2868, for clarification of content. For information pertaining to 
status or publication schedules, contact the Regulatory Secretariat at 
202-501-4755. Please cite FAR Case 2013-018.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to further 
clarify guidance for justifications of 8(a) sole-source contract awards 
in excess of $22 million. This proposed rule responds to the 
recommendations made by the Government Accountability Office (GAO) in 
its report, GAO-13-118, ``Slow Start to Implementation of 
Justifications for 8(a) Sole-Source Contracts.'' The GAO report focuses 
on the revisions made to the FAR to implement section 811 of the 
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84) (see 77 FR 23369). Section 811 established the requirement that the 
head of an agency may not award a sole-source 8(a) contract for an 
amount exceeding $20 million (subsequently updated to $22 million) 
unless--
     The contracting officer justifies the use of a sole-source 
contract in writing;
     The justification is approved by the appropriate official 
designated to approve contract awards for dollar amounts that are 
comparable to the amount of the sole-source contract; and
     The justification and related documentation are made 
available to the public in accordance with 10 U.S.C. 2304(f)(1)(C) and 
(l), and 41 U.S.C. 253(f)(1)(C) and (j) (recodified at 41 U.S.C. 
3304(e)(1)(C) and (f)), as applicable.
    The FAR Council published an interim rule in the Federal Register 
at 76 FR 14559 on March 16, 2011 implementing section 811 requirements. 
The interim rule was subsequently adopted without change as a final 
rule and published in the Federal Register at 77 FR 23369 on April 18, 
2012. Prior to publication of the rule, three tribal consultations were 
conducted in the Fall of 2010 to address the implementation of section 
811.
    On December 12, 2012, the GAO released its report regarding the use 
of the of the sole-source 8(a) justification across the Federal 
Government. The GAO-13-118 report indicates that the FAR needed 
additional clarification of justification and recommended that 
clarifying guidance is needed to help ensure that agencies are applying 
the justification requirement consistently. The GAO report recommended 
that OFPP, in consultation with the FAR Council, promulgate guidance to 
clarify the circumstances in which an 8(a) justification is required. 
As recommended, OFPP and the FAR Council agree to clarify the FAR with 
guidance that will:
     Clarify whether an 8(a) justification is required for 8(a) 
contracts that are subject to a pre-existing Competition in Contracting 
Act of 1984 (Pub. L. 98-369) (CICA) class justification.
     Provide additional information on actions contracting 
officers should take to comply with the justification requirement when 
the contract value rises above or falls below $22 million between the 
Small Business Administration's (SBA's) acceptance of the contract for 
negotiation under the 8(a) program and the contract award.
     Clarify whether and under what circumstances a separate 
sole-source justification is necessary for out-of-scope modifications 
to 8(a) sole-source contracts.
     This rule does not expand on the requirements of section 
811. The intent of the proposed rule is to further clarify the 
processes and procedures in the FAR to ensure uniform, consistent, and 
coherent guidance regarding the use of sole-source 8(a) justifications.

II. Discussion and Analysis

    The following is a summary of the proposed FAR amendments 
associated with this rule:

A. Clarify Whether an 8(a) Justification Is Required for 8(a) Contracts 
That Are Subject to a Pre-Existing CICA Class Justification

    The proposed rule will clarify that a justification executed under 
any other authority cannot be substituted for a sole-source 8(a) 
justification.

[[Page 80013]]

B. Provide Additional Information on Actions Contracting Officers 
Should Take To Comply With the Justification Requirement When the 
Contract Value Rises Above or Falls Below $22 Million Between SBA's 
Acceptance of the Contract for Negotiation Under the 8(a) Program and 
Contract Award

    The current requirement in the FAR to prepare and approve the sole-
source 8(a) justification prior to negotiation remains intact to ensure 
that the justification ``. . . is executed prior to negotiation, a 
critical juncture in the contract award continuum'' (77 FR 23369). 
However, the FAR will be amended to clarify the appropriate actions 
contracting officers should take in the event the estimated contract 
value rises above or falls below $22 million prior to award. DoD, GSA 
and NASA propose to add the following:
     If the estimated contract value at the time of submission 
of the offering letter exceeds $22 million, include the approved 
justification with the offering letter.
     If the estimated contract value at the time of submission 
of the offering letter is less than or equal to $22 million, but the 
contract value at time of award exceeds $22 million, send the approved 
justification prior to contract award.

C. Clarify Whether and Under What Circumstances a Separate Sole-Source 
Justification Is Necessary for Out-of-Scope Modifications to Sole-
Source 8(a) Contracts

    At FAR 43.102, the FAR provides guidance to contracting officers 
acting within the scope of their authority. In general, if the 
modification to the contract is out of scope, then it would be 
considered a new contract and would therefore, need to go through the 
appropriate procurement process for a new contract. Agencies' 
contracting officers use their discretion to determine if a 
modification is within the scope of the original contract.

D. Other Changes

    Conforming changes were proposed to part 6 and subpart 19.8. Other 
minor editorial clarifications were made.

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 a significant regulatory action and, therefore, was 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.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this proposed 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 the rule does not impose any new requirements, 
limitations, or restrictions on small businesses. However, an Initial 
Regulatory Flexibility Analysis (IRFA) has been prepared and is 
summarized as follows:

    The proposed rule responds to the recommendations made in GAO-
113-118 issued on December 12, 2012, to promulgate clarifying 
guidance in the FAR regarding sole-source 8(a) justifications for 
contract awards exceeding $22 million. This clarification pertains 
to processes and procedures that have already been established in 
the FAR pursuant to section 811 of the National Defense 
Authorization Act for Fiscal Year 2010.
    This rule does not impose any new reporting, recordkeeping, or 
other compliance requirements. It does not duplicate, overlap, or 
conflict with any other Federal rules. There are no known 
alternatives which would accomplish the stated objectives of the 
applicable statues.

    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 consistent with 5 U.S.C. 610. Interested parties must submit 
such comments separately and should cite 5 U.S.C. 610 (FAR Case 2013-
018), in correspondence.

VII. Paperwork Reduction Act

    The proposed rule clarifies guidance that implemented section 811, 
which prohibited the award of a sole-source contract in an amount over 
$20 million (subsequently revised to $22 million) under the 8(a) 
program authority (15 U.S.C. 637(a)) without the contracting officer 
first obtaining a written justification and approval approved by an 
appropriate official and making public the justification and approval 
and related information (see 76 FR 14559). This clarifying guidance 
pertains to documentation that is internal to the Government and 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 5, 6, and 19

    Government procurement.

    Dated: November 7, 2016.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    For the reasons set forth in the preamble, 48 CFR parts 5, 6, and 
19 are proposed to be amended as follows:

0
1. The authority citation for 48 CFR parts 5, 6, and 19 continues to 
read as follows:

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

PART 5--PUBLICIZING CONTRACT ACTIONS

0
2. Amend section 5.406 by adding paragraph (d) to read as follows:


5.406  Public disclosure of justification documents for certain 
contract actions.

* * * * *
    (d) Sole-source 8(a) justifications for awards exceeding $22 
million shall be posted in accordance with 6.305.

PART 6--COMPETITION REQUIREMENTS

0
3. Amend section 6.204 by revising paragraph (b) to read as follows:


6.204   Section 8(a) competition.

* * * * *
    (b) No separate justification or determination and findings is 
required under this part to limit competition to eligible 8(a) 
contractors except for sole source 8(a) awards exceeding $22 million 
(see 6.302-5 and 6.303-1).
* * * * *


6.302-5   [Amended]

0
4. Amend section 6.302-5 by removing from paragraph (b)(4) ``6.303'' 
and adding ``6.303-2 and 19.804-3'' in its place; removing ``over'' and 
adding ``exceeding'' in its place; and removing ``(See subpart 
19.8).''.
0
5. Amend section 6.303-1 by--
0
a. Revising paragraph (b); and
0
b. Removing from paragraph (d) ``above'' and adding ``of this section'' 
in its place.
    The revisions read as follows:


6.303-1   Requirements.

* * * * *

[[Page 80014]]

    (b)(1) In accordance with section 811 of the National Defense 
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), the 
contracting officer shall not award a sole-source contract under the 
8(a) authority (15 U.S.C. 637(a)) for an amount exceeding $22 million 
unless--
    (i) The contracting officer justifies the use of a sole-source 
contract in writing in accordance with 6.303-2; and
    (ii) The justification is approved by the appropriate official 
designated at 6.304; (see 19.804-2(a)(15) and 19.804-2(b) for required 
information for agency offering letter).
    (2) The justification and related information shall be made public 
after award in accordance with 6.305.
    (3) The requirement for a sole-source 8(a) justification and 
approval shall not be satisfied by any other justification and approval 
executed under a different authority (e.g., justification and approval 
in accordance with 6.302-2).
* * * * *
0
6. Amend section 6.303-2 by--
0
a. Revising the introductory text of paragraph (b);
0
b. Removing from the introductory text of paragraph (d) the word 
``over'' and adding ``exceeding'' in its place; and
0
c. Revising paragraph (d)(2).
    The revisions read as follows:


6.303-2   Content.

* * * * *
    (b) As a minimum, each justification, except for sole-source 8(a) 
contracts exceeding $22 million (see paragraph (d) of this section), 
shall include the following information:
* * * * *
    (d) * * *
    (2) A specification of the statutory provision providing the 
exception from the requirement at 19.805-1(a) to use competitive 
procedures in entering into the contract (15 U.S.C. 637(a); and 10 
U.S.C. 2304(c)(5) or 41 U.S.C. 3304(a)(5)).
* * * * *

PART 19--SMALL BUSINESS PROGRAMS

0
7. Amend section 19.804-2 by revising paragraph (b)(3) to read as 
follows:


19.804-2   Agency offering.

* * * * *
    (b) * * *
    (3) Sole source requirements, other than construction, should be 
forwarded directly to the district office that services the nominated 
firm. If the contracting officer is not nominating a specific firm, the 
offering letter should be forwarded to the district office servicing 
the geographical area in which the contracting office is located. For 
sole-source requirements with an estimated contract value exceeding $22 
million, an approved sole source 8(a) justification (see 6.303-1(b)) 
shall be included in the agency's offering letter.
* * * * *


19.804-3 through 10.804-6  [Redesignated]

0
8. Redesignate sections 19.804-3 through 19.804-6 as sections 19.804-4 
through 19.804-7, respectively.
0
9. Add new section 19.804-3 to read as follows:


19.804-3   Sole-source 8(a) contract awards.

    This subsection implements section 811 of the National Defense 
Authorization Act for Fiscal Year 2010, (Pub. L. 111-84), which 
requires justification for the award of a sole-source 8(a) contract 
exceeding $22 million.
    (a)(1) The contracting officer shall not award a sole-source 8(a) 
contract exceeding $22 million unless--
    (i) The contracting officer has justified, in writing, the use of a 
sole-source 8(a) contract in accordance with 6.303--1(b) and 6.303-
2(d); and
    (ii) The justification has been approved by the appropriate 
official designated at 6.304.
    (2) A copy of the approved justification shall be provided to the 
SBA District Office identified in the agency's offering letter (see 
19.804-2(a)(15) and 19.804-2(b)).
    (i) If the estimated contract value at the time of submission of 
the offering letter exceeds $22 million, include the approved 
justification with the offering letter.
    (ii) If the estimated contract value at the time of submission of 
the offering letter is less than or equal to $22 million, but the 
contract value at time of award exceeds $22 million, send the approved 
justification prior to contract award.
    (b) The justification and related information shall be made public 
after award, using the procedures at 6.305.


19.805-1   [Amended]

0
10. Amend section 19.805-1 by removing from the introductory text of 
paragraph (b) ``sole source'' and adding ``sole-source'' in its place.


19.805-2   [Amended]

0
11. Amend section 19.805-2 by removing from paragraph (a) ``19.804-3'' 
and adding ``19.804-4'' in its place.
0
12. Amend section 19.808-1 by revising paragraph (a) to read as 
follows:


19.808-1   Sole source.

    (a) The SBA may not accept for negotiation a sole-source 8(a) 
contract that exceeds $22 million unless the requesting agency has 
submitted an approved sole-source 8(a) justification in accordance with 
the requirements of 6.303-1(b).
* * * * *
[FR Doc. 2016-27245 Filed 11-14-16; 8:45 am]
 BILLING CODE P