Federal Acquisition Regulation: Ombudsman for Indefinite-Delivery Contracts, 38836-38838 [2019-16406]

Agencies

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

[Federal Register Volume 84, Number 152 (Wednesday, August 7, 2019)]
[Rules and Regulations]
[Pages 38836-38838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16406]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 16 and 52

[FAC 2019-04; FAR Case 2017-020; Item I; Docket No. 2017-0020; Sequence 
No. 1]
RIN 9000-AN53


Federal Acquisition Regulation: Ombudsman for Indefinite-Delivery 
Contracts

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 implement a new clause for use 
in multiple-award indefinite-delivery indefinite-quantity contracts 
that provides information on the task-order and delivery-order 
ombudsman.

DATES: Effective Date: September 6, 2019.

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 Division at 202-501-4755. Please cite FAC 2019-04, FAR Case 
2017-020.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register on November 1, 2018 at 83 FR 54901, to implement a new clause 
that provides the agency task-order and delivery-order ombudsman's 
responsibilities and contact information for use in multiple-award 
indefinite-delivery indefinite-quantity (IDIQ) contracts. FAR 
16.504(a)(4)(v) required that the name, address, telephone number, 
facsimile number, and email address of the agency's task-order and 
delivery-order ombudsman be included in IDIQ solicitations and 
contracts, if multiple

[[Page 38837]]

awards may result from the solicitation. As a result, several agencies 
created an agency-level contract clause that provides this information 
to contractors. This rule intends to minimize any impact on contractors 
resulting from the variety of ways in which the information is 
communicated by agencies; as such, this rule implements a standardized 
method to provide the requisite information to contractors via a single 
contract clause for use by all agencies. Three respondents submitted 
comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the public comments in the 
development of the final rule. No changes were made to the final rule 
as a result of public comments. Edits were made to the final rule for 
accuracy and clarification. A discussion of the comments is provided as 
follows:

A. Analysis of Public Comments

    1. Comment: A respondent expressed support for the rule.
    Response: The Councils acknowledge the support for the rule.
    2. Comment: A respondent advised that an agency should be able to 
designate its small business professional as the agency's task-order 
and delivery-order ombudsman.
    Response: It is the discretion of each agency as to whom they 
designate as its task-order and delivery-order ombudsman. FAR 
16.505(b)(8) only requires that the task-order and delivery-order 
ombudsman be a senior agency official who is independent of the 
contracting officer. This rule does not prohibit an agency's small 
business professional from serving as the task-order and delivery-order 
ombudsman.
    3. Comment: A respondent suggested that the Councils consider 
elaborating on the policies and procedures to be used by a task-order 
and delivery-order ombudsman when evaluating and responding to a fair 
opportunity complaint, as well as the other roles of a task-order and 
delivery-order ombudsman that are outside of fair opportunity 
considerations.
    Response: The purpose of this rule is to establish a standard way 
of providing contractors with the name and contact information for an 
agency's task-order and delivery-order ombudsman. Each agency has the 
discretion to develop the additional roles and responsibilities of, and 
policies and procedures for, its task-order and delivery-order 
ombudsman in execution of their statutory responsibilities; as such, 
this rule avoids prescribing procedural policies or requirements to be 
used by all Federal task-order and delivery-order ombudsmen.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule creates a new FAR clause 52.216-32, Task-Order and 
Delivery-Order Ombudsman, which serves as a single clause available for 
use by all agencies when awarding a multiple-award IDIQ contract and 
provides contractors with the requisite contact information for the 
agency task-order and delivery-order ombudsman.
    This clause applies to solicitations and contracts for the 
acquisition of commercial items, including commercially available off-
the-shelf (COTS) items, as defined at FAR 2.101. This rule provides 
contractors with information on the basic responsibilities of and how 
to contact the task-order and delivery-order ombudsman. Not applying 
this guidance to contracts for the acquisition of commercial items, 
including COTS items, would exclude contracts intended to be covered by 
this rule and could prevent some contractors from receiving the 
requisite information needed to address a concern with an agency's 
task-order and delivery-order ombudsman. This rule does not apply to 
contracts at or below the simplified acquisition threshold (SAT), as 
the FAR prevents the use of the multiple-award approach when the total 
estimated value of the contract is less than the SAT.

IV. 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.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VI. 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:

    DoD, GSA, and NASA are amending the FAR to implement a new 
clause that provides information on the task-order and delivery-
order ombudsman for multiple-award indefinite-delivery indefinite-
quantity (IDIQ) contracts. FAR 16.504(a)(4)(v) required that the 
name, address, telephone number, facsimile number, and email address 
of the agency's task-order and delivery-order ombudsman be included 
in IDIQ solicitations and contracts, if multiple awards may result 
from the solicitation. As a result, several agencies created an 
agency-level contract clause that provides this information to 
contractors. This rule intends to minimize any impact on contractors 
resulting from the variety of ways in which the information is 
communicated by agencies; as such, this rule implements a 
standardized method to provide the requisite information to 
contractors via a single contract clause for use by all agencies. No 
public comments were received in response to the initial regulatory 
flexibility analysis.
    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 is not creating any new requirements or changing any 
existing requirements for contractors.
    According to data from the Federal Procurement Data System, 
there were 6,207 new multiple-award contracts awarded in Fiscal Year 
2017. Of the 6,207 new awards, 4,477 (72 percent) of these actions 
were awarded to 3,873 unique small business entities. The final rule 
applies to all entities that do business with the Federal Government 
and is not expected to have a significant impact on these entities, 
regardless of business size.
    This rule does not include any new reporting, recordkeeping, or 
other compliance requirements for small businesses. The rule 
minimizes any current impact on small entities by providing the name 
and contact information of the agency task-order and delivery-order 
ombudsman via a standardized method in multiple-award indefinite-
delivery indefinite-quantity contracts and subsequent task and 
delivery orders, as necessary; as such, all entities awarded a 
contract or order that is subject to this rule will be able to 
locate the requisite task-order and delivery-order ombudsman's 
information without having to look in various locations for the 
information.

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

VII. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that

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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 16 and 52

    Government procurement.

Janet M. Fry,
Director, Federal Acquisition Policy Division, Office of Government-
wide Policy.

    Therefore, DoD, GSA, and NASA are issuing a final rule amending 48 
CFR parts 16 and 52 as set forth below:

0
1. The authority citation for parts 16 and 52 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 16--TYPES OF CONTRACTS


16.504   [Amended]

0
2. Amend section 16.504 by removing paragraph (a)(4)(v) and 
redesignating paragraphs (a)(4)(vi) and (a)(4)(vii) as paragraphs 
(a)(4)(v) and (a)(4)(vi), respectively.

0
3. Amend section 16.506 by adding paragraph (j) to read as follows.


16.506   Solicitation provisions and contract clauses.

* * * * *
    (j) Insert the clause at 52.216-32, Task-Order and Delivery-Order 
Ombudsman, in solicitations and contracts when a multiple-award 
indefinite-delivery indefinite-quantity contract is contemplated. Use 
the clause with its Alternate I when the contract will be available for 
use by multiple agencies (e.g., Governmentwide acquisition contracts or 
multi-agency contracts). When placing orders under the multiple-award 
contract available for use by multiple agencies, the ordering 
activity's contracting officer shall complete paragraph (d)(2) and 
include Alternate I in the notice of intent to place an order, and in 
the resulting order.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 52.216-32 to read as follows:


52.216-32  Task-Order and Delivery-Order Ombudsman.

    As prescribed in 16.506(j), use the following clause: Task-Order 
and Delivery-Order Ombudsman (Sep 2019)

    (a) In accordance with 41 U.S.C. 4106(g), the Agency has 
designated the following task-order and delivery-order Ombudsman for 
this contract. The Ombudsman must review complaints from the 
Contractor concerning all task-order and delivery-order actions for 
this contract and ensure the Contractor is afforded a fair 
opportunity for consideration in the award of orders, consistent 
with the procedures in the contract.

[Contracting Officer to insert name, address, telephone number, and 
email address for the Agency Ombudsman or provide the URL address 
where this information may be found.]
    (b) Consulting an ombudsman does not alter or postpone the 
timeline for any other process (e.g., protests).
    (c) Before consulting with the Ombudsman, the Contractor is 
encouraged to first address complaints with the Contracting Officer 
for resolution. When requested by the Contractor, the Ombudsman may 
keep the identity of the concerned party or entity confidential, 
unless prohibited by law or agency procedure.
(End of clause)
    Alternate I. As prescribed in 16.506(j), add the following 
paragraph (d) to the basic clause.
    (d) Contracts used by multiple agencies.
    (1) This is a contract that is used by multiple agencies. 
Complaints from Contractors concerning orders placed under contracts 
used by multiple agencies are primarily reviewed by the task-order and 
delivery-order Ombudsman for the ordering activity.
    (2) The ordering activity has designated the following task-order 
and delivery-order Ombudsman for this order:

[The ordering activity's contracting officer to insert the name, 
address, telephone number, and email address for the ordering 
activity's Ombudsman or provide the URL address where this 
information may be found.]
    (3) Before consulting with the task-order and delivery-order 
Ombudsman for the ordering activity, the Contractor is encouraged to 
first address complaints with the ordering activity's Contracting 
Officer for resolution. When requested by the Contractor, the task-
order and delivery-order Ombudsman for the ordering activity may 
keep the identity of the concerned party or entity confidential, 
unless prohibited by law or agency procedure.
(End of clause)
[FR Doc. 2019-16406 Filed 8-6-19; 8:45 am]
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