Federal Acquisition Regulation: Consolidation and Substantial Bundling, 23299-23302 [2020-08005]
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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
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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
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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: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
DATES:
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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 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: 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
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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
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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
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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
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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 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;
■
■
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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
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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:
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SUMMARY:
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(1) Electronically: Go to the Federal
eRulemaking Portal: https://
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 https://
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 https://
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
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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: https://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 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: 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
