Federal Acquisition Regulation: Consolidation and Substantial Bundling, 23299-23302 [2020-08005]

Download as PDF lotter on DSKBCFDHB2PROD with PROPOSALS Federal Register / Vol. 85, No. 81 / Monday, April 27, 2020 / Proposed Rules may seek clarification of or guidance on complying with competitive bidding rules and procedures, reporting requirements, and the FCC’s auction bidding system. An FCC Auctions Hotline provides access to Commission staff for information about the auction process and procedures. The FCC Auctions Technical Support Hotline is another resource which provides technical assistance to applicants, including small entities, on issues such as access to or navigation within the electronic FCC Form 175 and use of the FCC’s auction bidding system. Small entities may also use the web-based, interactive online tutorial produced by Commission staff to familiarize themselves with auction procedures, filing requirements, bidding procedures, and other matters related to an auction. 103. The Commission also makes various databases and other sources of information, including the Auctions program websites and copies of Commission decisions, available to the public without charge, providing a lowcost mechanism for small entities to conduct research prior to and throughout the auction. Prior to and at the close of Auction 107, the Commission will post public notices on the Auctions website, which articulate the procedures and deadlines for the auction. The Commission makes this information easily accessible and without charge to benefit all Auction 107 applicants, including small entities, thereby lowering their administrative costs to comply with the Commission’s competitive bidding rules. 104. Prior to the start of bidding, eligible bidders are given an opportunity to become familiar with auction procedures and the bidding system by participating in a mock auction. Further, the Commission intends to conduct Auction 107 electronically over the internet using its web-based auction system that eliminates the need for bidders to be physically present in a specific location. Qualified bidders also have the option to place bids by telephone. These mechanisms are made available to facilitate participation in Auction 107 by all eligible bidders and may result in significant cost savings for small business entities that use these alternatives. Moreover, the adoption of bidding procedures in advance of the auction, consistent with statutory directive, is designed to ensure that the auction will be administered predictably and fairly for all participants, including small entities. 105. For Auction 107, the Commission proposes a $25 million cap on the total amount of bidding credits VerDate Sep<11>2014 16:59 Apr 24, 2020 Jkt 250001 that may be awarded to an eligible small business and a $10 million cap on the total amount of bidding credits that may be awarded to a rural service provider. In addition, the Commission propose a $10 million cap on the overall amount of bidding credits that any winning small business bidder may apply to winning licenses in markets with a population of 500,000 or less. Based on the technical characteristics of the 3.7– 3.98 band and the Commission’s analysis of past auction data, the Commission anticipates that its proposed caps will allow the majority of small businesses to take full advantage of the bidding credit program, thereby lowering the relative costs of participation for small businesses. 106. The proposed procedures for the conduct of Auction 107 constitute the more specific implementation of the competitive bidding rules contemplated by Parts 1 and 30 of the Commission’s rules, the 3.7 GHz Report and Order, and relevant competitive bidding orders, and are fully consistent therewith. 107. Federal Rules that May Duplicate, Overlap, or Conflict with the Proposed Rules. None. 108. Ex Parte Rules. This proceeding has been designated as a ‘‘permit-butdisclose’’ proceeding in accordance with the Commission’s ex parte rules. Persons making oral ex parte presentations must file a copy of any written presentations or memoranda summarizing any oral presentation within two business days after the presentation (unless a different deadline applicable to the Sunshine Period applies). Persons making oral ex parte presentations are reminded that memoranda summarizing the presentations must (1) list all persons attending or otherwise participating in the meeting at which the ex parte presentation was made, and (2) summarize all data presented and arguments made during the presentation. If the presentation consisted in whole or in part of the presentation of data or arguments already reflected in the presenter’s written comments, memoranda, or other filings in the proceeding, the presenter may provide citations to such data or arguments in his or her prior comments, memoranda, or other filings (specifying the relevant page and/or paragraph numbers where such data or arguments can be found) in lieu of summarizing them in the memorandum. Documents shown or given to the Commission staff during ex parte meetings are deemed to be written ex parte presentations and must be filed consistent with Commission rule 1.1206(b). In PO 00000 Frm 00057 Fmt 4702 Sfmt 4702 23299 proceedings governed by Commission rule 1.49(f) or for which the Commission has made available a method of electronic filing, written ex parte presentations and memoranda summarizing oral ex parte presentations, and all attachments thereto, must be filed through the electronic comment filing system available for that proceeding, and must be filed in their native format (e.g., .doc, .xml, .ppt, searchable .pdf). Participants in this proceeding should familiarize themselves with the Commission’s ex parte rules. Federal Communications Commission. Cecilia Sigmund, Federal Register Liaison Officer. [FR Doc. 2020–06451 Filed 4–24–20; 8:45 am] BILLING CODE 6712–01–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 5 and 7 [FAR Case 2019–003; Docket No. FAR– 2019–0029, Sequence No. 1] RIN 9000–AN86 Federal Acquisition Regulation: Consolidation and Substantial Bundling 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 implement a section of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016, which requires providing public notices of determinations for substantial bundling and consolidation of contract requirements. SUMMARY: Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before June 26, 2020 to be considered in the formation of the final rule. ADDRESSES: Submit comments in response to FAR Case 2019–003 by any of the following methods: • Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by DATES: E:\FR\FM\27APP1.SGM 27APP1 23300 Federal Register / Vol. 85, No. 81 / Monday, April 27, 2020 / Proposed Rules entering ‘‘FAR Case 2019–003’’. Select the link ‘‘Comment Now’’ that corresponds with FAR Case 2019–003. Follow the instructions provided on the screen. Please include your name, company name (if any), and ‘‘FAR Case 2019–003’’ on your attached document. • Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd Floor, Washington, DC 20405. Instructions: Please submit comments only and cite FAR Case 2019–003 in all correspondence related to this case. All comments received will be posted without change to http:// 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: Mr. Kevin Funk, Procurement Analyst, at 202–357–5805 or via email at kevin.funk@gsa.gov for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite ‘‘FAR Case 2019–003’’. SUPPLEMENTARY INFORMATION: lotter on DSKBCFDHB2PROD with PROPOSALS I. Background DoD, GSA, and NASA are proposing to amend the FAR to implement section 863 of the NDAA for FY 2016 (Pub. L. 114–92, codified at 15 U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and SBA’s implementing regulations. Section 863 requires public notification of an agency’s determination to substantially bundle or consolidate contract requirements. Specifically, publication of a notice is required when the head of a contracting agency determines that an acquisition plan for a procurement involves substantial bundling of contract requirements. The head of the contracting agency must publish a notice on a public website that such determination has been made not later than 7 days after making the determination. Any solicitation for a procurement related to the acquisition plan may not be published earlier than 7 days after such notice is published. A justification for the determination must be published with the solicitation. The justification must address the specific benefits anticipated, any alternative approaches, impediments to participation by small business VerDate Sep<11>2014 16:59 Apr 24, 2020 Jkt 250001 concerns as prime contractors, and actions designed to maximize participation of small business concerns as subcontractors. See 15 U.S.C. 644(e)(3)(A) through (C) for a list of the requirements. Section 863 also requires publication of a notice when the senior procurement executive (SPE) or chief acquisition officer (CAO) makes a determination that an acquisition strategy involving consolidation of contract requirements is necessary and justified under 15 U.S.C. 657q(c)(2)(A). The SPE or CAO must publish a notice on a public website that such determination has been made not later than 7 days after making the determination. Any solicitation for a procurement related to the acquisition strategy may not be published earlier than 7 days after such notice is published. A justification for the determination must be published with the solicitation. The justification must include the information in 15 U.S.C. 657q(c)(1)(A) through (E). SBA published a rule to implement section 863 on November 29, 2019, at 84 FR 65647. SBA’s implementation is very similar to the statutory language. II. Discussion and Analysis The proposed changes to the FAR are summarized in the following paragraphs. A. Notification of Substantial Bundling At FAR 7.107–5, Notifications, a requirement is added for publication of a notification of substantial bundling on the Governmentwide point of entry (GPE). Any solicitation for a procurement may not be published earlier than 7 days after a notice is published concerning a determination that the procurement involves substantial bundling of contract requirements. The head of the agency must also publish in the GPE the rationale for substantial bundling with the publication of the solicitation. The rationale must address the information required at 7.107–4(b), such as the specific benefits anticipated, any alternative approaches, impediments to participation by small business concerns as prime contractors, and actions designed to maximize participation of small business concerns as subcontractors. A reference to the notification requirement at FAR 7.107– 5 is added to FAR 5.205, Special situations. B. Notification of Consolidation At 7.107–5, Notifications, a requirement is added for the SPE or CAO to publish a notice on the GPE that a determination has been made that a PO 00000 Frm 00058 Fmt 4702 Sfmt 4702 consolidation of contract requirements is necessary and justified. The SPE or CAO must also publish the determination that consolidation is necessary and justified with the publication of the solicitation. A reference to the notification requirement at FAR 7.107–5 is added to FAR 5.205, Special situations. III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items This rule proposes to implement a statutory requirement for Federal agencies to provide notifications to the public on consolidation and substantial bundling of contract requirements. No solicitation provisions or contract clauses are being created or revised in this proposed rule. 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 proposed rule is not expected to be subject to E.O. 13771, Reducing Regulation and controlling Regulatory Costs, because this rule is not a significant regulatory action under E.O. 12866. VI. Regulatory Flexibility Act The change 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 Initial Regulatory Flexibility Analysis (IRFA) has been performed and is summarized as follows: DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement section 863 of the National Defense Authorization Act for 2016 (Pub. L. 114–92, codified at 15 U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and the E:\FR\FM\27APP1.SGM 27APP1 Federal Register / Vol. 85, No. 81 / Monday, April 27, 2020 / Proposed Rules lotter on DSKBCFDHB2PROD with PROPOSALS Small Business Administration (SBA) implementing regulations. Section 863 requires that, if the head of a contracting agency determines that an acquisition plan involves a substantial bundling of contract requirements, the head of the agency shall publish a notice of such determination on a public website within 7 days of making such determination. Additionally, section 863 requires, upon determining that a consolidation of contract requirements is necessary and justified, the senior procurement executive (SPE) or chief acquisition officer (CAO) shall publish a notice on a public website that such determination has been made and that an agency may not issue the solicitation any earlier than 7 days after publication of such notice. The SPE or CAO must also publish the justification along with the solicitation. The objective of this rule is to implement section 863 of the NDAA for FY 2016 and SBA’s implementing regulations. The legal basis for the rule is section 863 of the NDAA for FY 2016. This rule may have a positive economic impact on any small entity that is interested in participating in Federal procurement. By posting justifications and notices of upcoming procurements which are planned to be substantially bundled or consolidated, small business concerns are made aware of potential subcontracting opportunities and possibilities for participating in joint ventures or small business teaming arrangements, which will help small businesses increase their competitiveness. The System for Award Management (SAM) shows 315,655 entities which are small business concerns under at least one North American Industry Classification System code. This proposed rule does not include any new reporting, recordkeeping, or other compliance requirements for small entities. This proposed rule does not duplicate, overlap, or conflict with any other Federal rules. There are no known significant alternative approaches that would accomplish the stated objectives of the applicable statute. The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the SBA. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. 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 this rule in accordance with 5 U.S.C. 610. Interested parties must submit comments separately and should cite 5 U.S.C. 610 (FAR case 2019–003) in correspondence. VII. Paperwork Reduction Act This rule does not contain any information collection requirements that VerDate Sep<11>2014 16:59 Apr 24, 2020 Jkt 250001 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 and 7 Government procurement. William F. Clark, Director, Office of Governmentwide Acquisition Policy, Office of Acquisition Policy, Office of Governmentwide Policy. Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part(s) 5 and 7, as set forth below: ■ 1. The authority citation for 48 CFR part(s) 5 and 7 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 2. Amend section 5.205 by revising paragraph (g) to read as follows: ■ 5.205 Special Situations. * * * * * (g) Notifications to the public regarding consolidation, bundling, or substantial bundling. (1) For the requirement to publish a notification of consolidation or substantial bundling of contract requirements, see 7.107–5(c) and (d). (2) The agency is encouraged to provide notification of the rationale for any bundled requirement to the GPE before issuing the solicitation of any bundled requirement (see 7.107–5(b)). PART 7—ACQUISITION PLANNING 7.105 [Amended] 3. Amend section 7.105 by removing from paragraph (b)(16) ‘‘GPE’’ and adding ‘‘Governmentwide point of entry (GPE)’’ in its place. ■ 7.107–1 [Amended] 4. Amend section 7.107–1 by removing from paragraph (a) ‘‘7.107–3 and 7.107–4’’ and adding ‘‘7.107–3, 7.107–4, and 7.107–5’’ in its place. ■ 7.107–2 [Amended] 5. Amend section 7.107–2 by: a. In paragraph (a) introductory text removing the words ‘‘procurement executive’’ and ‘‘acquisition officer’’ and adding in their place ‘‘procurement executive (SPE)’’ and ‘‘acquisition officer (CAO)’’, respectively; ■ b. In from paragraph (b) removing the words ‘‘senior procurement executive or chief acquisition officer’’ and ‘‘subsection’’ and adding in their place ‘‘SPE or CAO’’ and ‘‘section’’, respectively; ■ ■ PO 00000 Frm 00059 Fmt 4702 Sfmt 4702 23301 c. In from paragraph (d)(3) removing the words ‘‘senior procurement executive or chief acquisition officer’’ and adding in their place ‘‘SPE or CAO’’; ■ d. In paragraph (e)(1) introductory text removing the word ‘‘subsection’’ wherever it appears and adding in its place ‘‘section’’; ■ e. In paragraph (e)(1)(i) removing the word ‘‘subsection’’ and adding in its place the word ‘‘section’’; and ■ f. In paragraph (e)(2)(i) removing the words ‘‘senior procurement executive’’ and adding in their place ‘‘SPE’’. ■ 6. Amend section 7.107–5 by: ■ a. Revising paragraph (b); ■ b. Redesignating paragraphs (c) and (d) as paragraphs (e) and (g), and adding new paragraphs (c), (d), and (f); and ■ c. In newly redesignated paragraph (g) removing the words ‘‘Public notification’’ and adding in their place ‘‘Notification to public’’. The revision and additions read as follows: ■ 7.107–5 Notifications. * * * * * (b) Notification to public of rationale for bundled requirement. The agency is encouraged to provide notification of the rationale for any bundled requirement to the GPE, before issuance of the solicitation (see 5.201). (c) Notification to public of consolidation of contract requirements. The SPE or CAO shall publish in the GPE— (1) A notice that the agency has determined a consolidation of contract requirements is necessary and justified (see 7.107–2) no later than 7 days after making the determination; the solicitation may not be publicized prior to 7 days after publication of the notice of the determination; and (2) The determination that consolidation is necessary and justified with the publication of the solicitation. See 7.107–2 for the required content of the determination. (d) Notification to public of substantial bundling of contract requirements. The head of the agency shall publish in the GPE— (1) A notice that the agency has determined that a procurement involves substantial bundling (see 7.107–4) no later than 7 days after such determination has been made; the solicitation may not be publicized prior to 7 days after publication of the notice of the determination; and (2) The rationale for substantial bundling with the publication of the solicitation. The rationale is the E:\FR\FM\27APP1.SGM 27APP1 23302 Federal Register / Vol. 85, No. 81 / Monday, April 27, 2020 / Proposed Rules information required for inclusion in the acquisition strategy at 7.107–4(b). * * * * * (f) Annual notification to public of rationale for bundled requirements. The agency shall publish on its website a list and rationale for any bundled requirement for which the agency solicited offers or issued an award. The notification shall be made annually within 30 days of the agency’s data certification regarding the validity and verification of data entered in the Federal Procurement Data System to the Office of Federal Procurement Policy (see 4.604). * * * * * [FR Doc. 2020–08005 Filed 4–24–20; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF THE INTERIOR Fish and Wildlife Service 50 CFR Part 17 [Docket No. FWS–R4–ES–2019–0080; FXES11130900000C2–189–FF09E42000] RIN 1018–BD82 Endangered and Threatened Wildlife and Plants; Removing Arenaria cumberlandensis (Cumberland Sandwort) From the Federal List of Endangered and Threatened Plants Fish and Wildlife Service, Interior. ACTION: Proposed rule. AGENCY: We, the U.S. Fish and Wildlife Service (Service), propose to remove Cumberland sandwort (Arenaria cumberlandensis) from the Federal List of Endangered and Threatened Plants (List). We also announce the availability of a draft post-delisting monitoring (PDM) plan for the Cumberland sandwort. We seek information, data, and comments from the public on this proposed rule and on the associated draft PDM plan. If this proposal is finalized, the Cumberland sandwort will be removed from the List. DATES: We will accept comments received or postmarked on or before June 26, 2020. Comments submitted electronically using the Federal eRulemaking Portal (see ADDRESSES, below) must be received by 11:59 p.m. Eastern Time on the closing date. We must receive requests for public hearings, in writing, at the address shown in FOR FURTHER INFORMATION CONTACT by June 11, 2020. ADDRESSES: You may submit comments on this proposed rule and draft PDM plan by one of the following methods: lotter on DSKBCFDHB2PROD with PROPOSALS SUMMARY: VerDate Sep<11>2014 16:59 Apr 24, 2020 Jkt 250001 (1) Electronically: Go to the Federal eRulemaking Portal: http:// www.regulations.gov. In the Search box, enter FWS–R4–ES–2019–0080, which is the docket number for this rulemaking. Then, click on the Search button. On the resulting page, in the Search panel on the left side of the screen, under the Document Type heading, click on the Proposed Rule box to locate this document. You may submit a comment by clicking on ‘‘Comment Now!’’ (2) By hard copy: Submit by U.S. mail to: Public Comments Processing, Attn: FWS–R4–ES–2019–0080; U.S. Fish and Wildlife Service, MS: PRB/3W, 5275 Leesburg Pike, Falls Church, VA 22041– 3803. We request that you send comments only by the methods described above. We will post all comments on http:// www.regulations.gov. This generally means that we will post any personal information you provide us (see Public Comments, below, for more information). Document availability: The proposed rule, draft PDM plan, and supporting documents are available at http:// www.regulations.gov under Docket No. FWS–R4–ES–2019–0080. FOR FURTHER INFORMATION CONTACT: Lee Andrews, Field Supervisor, U.S. Fish and Wildlife Service, Tennessee Ecological Services Field Office, 446 Neal Street, Cookeville, Tennessee, 38501; telephone (931) 528–6481. Individuals who use a telecommunications device for the deaf (TDD), may call the Federal Relay Service at (800) 877–8339. SUPPLEMENTARY INFORMATION: Executive Summary Why we need to publish a rule. Under the Endangered Species Act of 1973, as amended (Act), we are required to conduct a review of all listed species at least once every 5 years (5-year review) to review their status and determine whether they should be classified differently or removed from listed status. In our 2013 5-year review for the Cumberland sandwort, we recommended reclassifying the species from endangered to threatened. We initiated another 5-year review for the species on May 7, 2018 (83 FR 20093), and determined the species met the criteria for delisting. Therefore, we are publishing this proposed rule to delist the species. What this document does. This document proposes to remove the Cumberland sandwort from the List. It also announces the availability of a draft PDM plan for the Cumberland sandwort. This determination is based on a PO 00000 Frm 00060 Fmt 4702 Sfmt 4702 thorough review of the best available scientific and commercial data, which indicate that the Cumberland sandwort has recovered and no longer meets the definition of an endangered or a threatened species under the Act. Our review shows that threats to the species identified at the time of listing (i.e., timber harvesting, trampling from recreational uses, and digging for archaeological artifacts) have been reduced to the point that they no longer threaten the species, and the Cumberland sandwort has increased in abundance and range. Our review also indicates that potential effects of projected climate change are not expected to cause the species to become endangered in the foreseeable future. The basis for our action. Under the Act, we may determine that a species is an endangered or threatened species because of one or more of the five factors described in section 4(a)(1) of the Act. We must consider the same factors in removing a species from the List (delisting) in determining whether a species meets the definition of an endangered species or a threatened species. Here, we have determined that the Cumberland sandwort may be considered for delisting based on recovery. In the rule listing the Cumberland sandwort (53 FR 23745, June 23, 1988), the primary threats identified for the species were the destruction and modification of habitat (Factor A) due to trampling by recreational users of the rockhouse and bluff habitats where the species occurs, trampling and soil disturbance from looting of archeological artifacts (i.e., relic digging), and timber harvesting in or adjacent to occupied sites. While some habitats occupied by Cumberland sandwort are exposed to these potential stressors, many are protected from these activities, and available data support the determination that the species is more resilient to these threats than was assumed at the time of listing. The listing rule also discussed limited distribution and small population size (Factor E), along with inadequate regulatory mechanisms for preventing habitat destruction (Factor D), as factors contributing to the species’ endangerment. However, our review of the status of and listing factors for the Cumberland sandwort indicated: (1) An increase in the number of occurrences of the species within its geographically restricted range and increased abundance in some occurrences; (2) resiliency to existing and potential threats; (3) the protection of 66 extant occurrences located on Federal and State conservation lands by regulations E:\FR\FM\27APP1.SGM 27APP1

Agencies

[Federal Register Volume 85, Number 81 (Monday, April 27, 2020)]
[Proposed Rules]
[Pages 23299-23302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08005]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5 and 7

[FAR Case 2019-003; Docket No. FAR-2019-0029, Sequence No. 1]
RIN 9000-AN86


Federal Acquisition Regulation: Consolidation and Substantial 
Bundling

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 implement a section of the National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016, which 
requires providing public notices of determinations for substantial 
bundling and consolidation of contract requirements.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat Division at one of the addresses shown below on 
or before June 26, 2020 to be considered in the formation of the final 
rule.

ADDRESSES: Submit comments in response to FAR Case 2019-003 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by

[[Page 23300]]

entering ``FAR Case 2019-003''. Select the link ``Comment Now'' that 
corresponds with FAR Case 2019-003. Follow the instructions provided on 
the screen. Please include your name, company name (if any), and ``FAR 
Case 2019-003'' on your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd 
Floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2019-
003 in all correspondence related to this case. All comments received 
will be posted without change to http://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: Mr. Kevin Funk, Procurement Analyst, 
at 202-357-5805 or via email at [email protected] for clarification of 
content. For information pertaining to status or publication schedules, 
contact the Regulatory Secretariat Division at 202-501-4755. Please 
cite ``FAR Case 2019-003''.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to amend the FAR to implement 
section 863 of the NDAA for FY 2016 (Pub. L. 114-92, codified at 15 
U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and SBA's implementing 
regulations. Section 863 requires public notification of an agency's 
determination to substantially bundle or consolidate contract 
requirements.
    Specifically, publication of a notice is required when the head of 
a contracting agency determines that an acquisition plan for a 
procurement involves substantial bundling of contract requirements. The 
head of the contracting agency must publish a notice on a public 
website that such determination has been made not later than 7 days 
after making the determination. Any solicitation for a procurement 
related to the acquisition plan may not be published earlier than 7 
days after such notice is published. A justification for the 
determination must be published with the solicitation. The 
justification must address the specific benefits anticipated, any 
alternative approaches, impediments to participation by small business 
concerns as prime contractors, and actions designed to maximize 
participation of small business concerns as subcontractors. See 15 
U.S.C. 644(e)(3)(A) through (C) for a list of the requirements.
    Section 863 also requires publication of a notice when the senior 
procurement executive (SPE) or chief acquisition officer (CAO) makes a 
determination that an acquisition strategy involving consolidation of 
contract requirements is necessary and justified under 15 U.S.C. 
657q(c)(2)(A). The SPE or CAO must publish a notice on a public website 
that such determination has been made not later than 7 days after 
making the determination. Any solicitation for a procurement related to 
the acquisition strategy may not be published earlier than 7 days after 
such notice is published. A justification for the determination must be 
published with the solicitation. The justification must include the 
information in 15 U.S.C. 657q(c)(1)(A) through (E).
    SBA published a rule to implement section 863 on November 29, 2019, 
at 84 FR 65647. SBA's implementation is very similar to the statutory 
language.

II. Discussion and Analysis

    The proposed changes to the FAR are summarized in the following 
paragraphs.

A. Notification of Substantial Bundling

    At FAR 7.107-5, Notifications, a requirement is added for 
publication of a notification of substantial bundling on the 
Governmentwide point of entry (GPE). Any solicitation for a procurement 
may not be published earlier than 7 days after a notice is published 
concerning a determination that the procurement involves substantial 
bundling of contract requirements. The head of the agency must also 
publish in the GPE the rationale for substantial bundling with the 
publication of the solicitation. The rationale must address the 
information required at 7.107-4(b), such as the specific benefits 
anticipated, any alternative approaches, impediments to participation 
by small business concerns as prime contractors, and actions designed 
to maximize participation of small business concerns as subcontractors. 
A reference to the notification requirement at FAR 7.107-5 is added to 
FAR 5.205, Special situations.

B. Notification of Consolidation

    At 7.107-5, Notifications, a requirement is added for the SPE or 
CAO to publish a notice on the GPE that a determination has been made 
that a consolidation of contract requirements is necessary and 
justified. The SPE or CAO must also publish the determination that 
consolidation is necessary and justified with the publication of the 
solicitation. A reference to the notification requirement at FAR 7.107-
5 is added to FAR 5.205, Special situations.

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

    This rule proposes to implement a statutory requirement for Federal 
agencies to provide notifications to the public on consolidation and 
substantial bundling of contract requirements. No solicitation 
provisions or contract clauses are being created or revised in this 
proposed rule.

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 proposed rule is not expected to be subject to E.O. 13771, 
Reducing Regulation and controlling Regulatory Costs, because this rule 
is not a significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    The change 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 Initial Regulatory 
Flexibility Analysis (IRFA) has been performed and is summarized as 
follows:

    DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement section 863 of the 
National Defense Authorization Act for 2016 (Pub. L. 114-92, 
codified at 15 U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and the

[[Page 23301]]

Small Business Administration (SBA) implementing regulations. 
Section 863 requires that, if the head of a contracting agency 
determines that an acquisition plan involves a substantial bundling 
of contract requirements, the head of the agency shall publish a 
notice of such determination on a public website within 7 days of 
making such determination. Additionally, section 863 requires, upon 
determining that a consolidation of contract requirements is 
necessary and justified, the senior procurement executive (SPE) or 
chief acquisition officer (CAO) shall publish a notice on a public 
website that such determination has been made and that an agency may 
not issue the solicitation any earlier than 7 days after publication 
of such notice. The SPE or CAO must also publish the justification 
along with the solicitation.
    The objective of this rule is to implement section 863 of the 
NDAA for FY 2016 and SBA's implementing regulations. The legal basis 
for the rule is section 863 of the NDAA for FY 2016.
    This rule may have a positive economic impact on any small 
entity that is interested in participating in Federal procurement. 
By posting justifications and notices of upcoming procurements which 
are planned to be substantially bundled or consolidated, small 
business concerns are made aware of potential subcontracting 
opportunities and possibilities for participating in joint ventures 
or small business teaming arrangements, which will help small 
businesses increase their competitiveness. The System for Award 
Management (SAM) shows 315,655 entities which are small business 
concerns under at least one North American Industry Classification 
System code.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements for small entities.
    This proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules.
    There are no known significant alternative approaches that would 
accomplish the stated objectives of the applicable statute.

    The Regulatory Secretariat Division has submitted a copy of the 
IRFA to the Chief Counsel for Advocacy of the SBA. A copy of the IRFA 
may be obtained from the Regulatory Secretariat Division. 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 this rule 
in accordance with 5 U.S.C. 610. Interested parties must submit 
comments separately and should cite 5 U.S.C. 610 (FAR case 2019-003) in 
correspondence.

VII. Paperwork Reduction Act

    This 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 5 and 7

    Government procurement.

William F. Clark,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part(s) 
5 and 7, as set forth below:

0
1. The authority citation for 48 CFR part(s) 5 and 7 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 5.205 by revising paragraph (g) to read as follows:


5.205   Special Situations.

* * * * *
    (g) Notifications to the public regarding consolidation, bundling, 
or substantial bundling. (1) For the requirement to publish a 
notification of consolidation or substantial bundling of contract 
requirements, see 7.107-5(c) and (d).
    (2) The agency is encouraged to provide notification of the 
rationale for any bundled requirement to the GPE before issuing the 
solicitation of any bundled requirement (see 7.107-5(b)).

PART 7--ACQUISITION PLANNING


7.105   [Amended]

0
3. Amend section 7.105 by removing from paragraph (b)(16) ``GPE'' and 
adding ``Governmentwide point of entry (GPE)'' in its place.


7.107-1   [Amended]

0
4. Amend section 7.107-1 by removing from paragraph (a) ``7.107-3 and 
7.107-4'' and adding ``7.107-3, 7.107-4, and 7.107-5'' in its place.


7.107-2   [Amended]

0
5. Amend section 7.107-2 by:
0
 a. In paragraph (a) introductory text removing the words ``procurement 
executive'' and ``acquisition officer'' and adding in their place 
``procurement executive (SPE)'' and ``acquisition officer (CAO)'', 
respectively;
0
b. In from paragraph (b) removing the words ``senior procurement 
executive or chief acquisition officer'' and ``subsection'' and adding 
in their place ``SPE or CAO'' and ``section'', respectively;
0
 c. In from paragraph (d)(3) removing the words ``senior procurement 
executive or chief acquisition officer'' and adding in their place 
``SPE or CAO'';
0
d. In paragraph (e)(1) introductory text removing the word 
``subsection'' wherever it appears and adding in its place ``section'';
0
 e. In paragraph (e)(1)(i) removing the word ``subsection'' and adding 
in its place the word ``section''; and
0
 f. In paragraph (e)(2)(i) removing the words ``senior procurement 
executive'' and adding in their place ``SPE''.
0
6. Amend section 7.107-5 by:
0
 a. Revising paragraph (b);
0
b. Redesignating paragraphs (c) and (d) as paragraphs (e) and (g), and 
adding new paragraphs (c), (d), and (f); and
0
 c. In newly redesignated paragraph (g) removing the words ``Public 
notification'' and adding in their place ``Notification to public''.
    The revision and additions read as follows:


7.107-5   Notifications.

* * * * *
    (b) Notification to public of rationale for bundled requirement. 
The agency is encouraged to provide notification of the rationale for 
any bundled requirement to the GPE, before issuance of the solicitation 
(see 5.201).
    (c) Notification to public of consolidation of contract 
requirements. The SPE or CAO shall publish in the GPE--
    (1) A notice that the agency has determined a consolidation of 
contract requirements is necessary and justified (see 7.107-2) no later 
than 7 days after making the determination; the solicitation may not be 
publicized prior to 7 days after publication of the notice of the 
determination; and
    (2) The determination that consolidation is necessary and justified 
with the publication of the solicitation. See 7.107-2 for the required 
content of the determination.
    (d) Notification to public of substantial bundling of contract 
requirements. The head of the agency shall publish in the GPE--
    (1) A notice that the agency has determined that a procurement 
involves substantial bundling (see 7.107-4) no later than 7 days after 
such determination has been made; the solicitation may not be 
publicized prior to 7 days after publication of the notice of the 
determination; and
    (2) The rationale for substantial bundling with the publication of 
the solicitation. The rationale is the

[[Page 23302]]

information required for inclusion in the acquisition strategy at 
7.107-4(b).
* * * * *
    (f) Annual notification to public of rationale for bundled 
requirements. The agency shall publish on its website a list and 
rationale for any bundled requirement for which the agency solicited 
offers or issued an award. The notification shall be made annually 
within 30 days of the agency's data certification regarding the 
validity and verification of data entered in the Federal Procurement 
Data System to the Office of Federal Procurement Policy (see 4.604).
* * * * *
[FR Doc. 2020-08005 Filed 4-24-20; 8:45 am]
 BILLING CODE 6820-EP-P