Federal Acquisition Regulation: Analysis for Equipment Acquisitions, 31070-31072 [2021-11866]

Agencies

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

[Federal Register Volume 86, Number 110 (Thursday, June 10, 2021)]
[Rules and Regulations]
[Pages 31070-31072]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-11866]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 7

[FAC 2021-06; FAR Case 2019-001; Item I; Docket No. FAR-2019-0020, 
Sequence No. 1]
RIN 9000-AN84


Federal Acquisition Regulation: Analysis for Equipment 
Acquisitions

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

ACTION: Final rule.

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[[Page 31071]]

SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement a section of the FAA 
Reauthorization Act of 2018, which requires, when acquiring equipment, 
a case-by-case analysis of cost and other factors associated with 
certain methods of acquisition, including purchase, short-term rental 
or lease, long-term rental or lease, interagency acquisition, and, if 
applicable, acquisition agreements with a State or local government.

DATES: Effective: July 12, 2021.

FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement 
Analyst, at 202-208-4949 or [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 FAC 2021-06 and FAR Case 2019-001.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule at 85 FR 52081, on 
August 24, 2020, to implement section 555 of the FAA Reauthorization 
Act of 2018 (Pub. L. 115-254) (FAA stands for Federal Aviation 
Administration), which:
     Requires an agency to acquire equipment using the method 
of acquisition that is most advantageous to the Government based on a 
case-by-case analysis of comparative costs and other factors (to 
include the factors in FAR section 7.401);
     Identifies methods of acquisition that must be considered, 
at a minimum, in the analysis; and
     Requires the FAR to implement the requirements of the 
section and identify the factors agencies should or shall consider to 
perform the case-by-case analysis.
    Five respondents submitted public comments in response to 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. To maintain consistency throughout the 
rule text, a minor change was made to the final rule at FAR 7.403(a) to 
ensure the terms ``rent'' and ``lease'' are used in the same order 
throughout the rule. A minor edit was also made to FAR 7.403(b)(2) to 
replace the obsolete weblink for the Schedule 51 V Hardware Superstore 
with an updated one.
    Several respondents expressed support for the rule and the Councils 
acknowledge this support for the rule. The remaining respondents 
provided comments that were outside the scope of this rule.

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

    This final rule does not create any new provisions or clauses, nor 
does it change the applicability or burden of any existing provisions 
or clauses included in solicitations and contracts valued at or below 
the SAT or for commercial items, including COTS items.

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.

V. Congressional Review Act

    As required by the Congressional Review Act (5 U.S.C. 801-808) 
before an interim or final rule takes effect, DoD, GSA, and NASA will 
send the rule and the ``Submission of Federal Rules Under the 
Congressional Review Act'' form to each House of the Congress and to 
the Comptroller General of the United States. A major rule cannot take 
effect until 60 days after it is published in the Federal Register. The 
Office of Information and Regulatory Affairs (OIRA) in the Office of 
Management and Budget has determined that this is not a major rule 
under 5 U.S.C. 804.

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. 601-612. The FRFA is summarized as follows:

    This rule is necessary to implement section 555 of the FAA 
Reauthorization Act of 2018 (Pub. L. 115-254). The objective of the 
rule is to ensure agencies acquire equipment using the method of 
acquisition that is most advantageous to the Government based on a 
case-by-case analysis of comparative costs and other factors.
    There were no significant issues raised 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; most of 
the impact will be on the Government. The rule primarily affects 
internal Government requirements determination decisions, 
acquisition strategy decisions, and contract file documentation 
requirements. The Government does not collect data on the total 
number of solicitations issued on an annual basis that are subject 
to the analysis of FAR subpart 7.4. However, the Federal Procurement 
Data System (FPDS) collects information on the product service code 
(PSC) assigned to a contract based on the predominant supply or 
service being acquired. FPDS data for fiscal years 2016-2018, on 
PSCs for approximately 100 types of equipment and 80 types of 
equipment rental or lease services, indicates that the Federal 
Government awards an average of 125,940 new contracts and orders 
annually, of which approximately 54,845 (44 percent) were awarded to 
approximately 6,940 unique small businesses.
    This rule does not impose any reporting, recordkeeping, or other 
compliance requirements.
    There are no alternatives that are consistent with the 
objectives of the statute.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat Division. The Regulatory Secretariat Division 
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 require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. 3501-3521).

List of Subjects in 48 CFR Part 7

    Government procurement.


William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 7 as set forth 
below:

PART 7--ACQUISITION PLANNING

0
1. The authority citation for 48 CFR part 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.

[[Page 31072]]

Subpart 7.4--Equipment Acquisition

0
2. Revise the heading of subpart 7.4 to read as set forth above.

0
3. Revise section 7.400 to read as follows:


7.400  Scope of subpart.

    This subpart--
    (a) Implements section 555 of the FAA (Federal Aviation 
Administration) Reauthorization Act of 2018 (Pub. L. 115-254);
    (b) Provides guidance when acquiring equipment and more than one 
method of acquisition is available for use; and
    (c) Applies to both the initial acquisition of equipment and the 
renewal or extension of existing equipment leases or rental agreements.

0
4. Revise section 7.401 to read as follows:


7.401  Acquisition considerations.

    (a)(1) Agencies shall acquire equipment using the method of 
acquisition most advantageous to the Government based on a case-by-case 
analysis of comparative costs and other factors in accordance with this 
subpart and agency procedures.
    (2) The methods of acquisition to be compared in the analysis shall 
include, at a minimum--
    (i) Purchase;
    (ii) Short-term rental or lease;
    (iii) Long-term rental or lease;
    (iv) Interagency acquisition (see 2.101); and
    (v) Agency acquisition agreements, if applicable, with a State or 
local government.
    (b)(1) The factors to be compared in the analysis shall include, at 
a minimum:
    (i) Estimated length of the period the equipment is to be used and 
the extent of use within that period;
    (ii) Financial and operating advantages of alternative types and 
makes of equipment;
    (iii) Cumulative rent, lease, or other periodic payments, however 
described, for the estimated period of use;
    (iv) Net purchase price;
    (v) Transportation, installation, and storage costs;
    (vi) Maintenance, repair, and other service costs; and
    (vii) Potential obsolescence of the equipment because of imminent 
technological improvements.
    (2) The following additional factors should be considered, as 
appropriate, depending on the type, cost, complexity, and estimated 
period of use of the equipment:
    (i) Availability of purchase options.
    (ii) Cancellation, extension, and early return conditions and fees.
    (iii) Ability to swap out or exchange equipment.
    (iv) Available warranties.
    (v) Insurance, environmental, or licensing requirements.
    (vi) Potential for use of the equipment by other agencies after its 
use by the acquiring agency is ended.
    (vii) Trade-in or salvage value.
    (viii) Imputed interest.
    (ix) Availability of a servicing capability, especially for highly 
complex equipment; e.g., can the equipment be serviced by the 
Government or other sources if it is purchased?
    (c) The analysis in paragraph (a) is not required--
    (1) When the President has issued an emergency declaration or a 
major disaster declaration pursuant to the Robert T. Stafford Disaster 
Relief and Emergency Assistance Act (42 U.S.C. 5121 et seq.);
    (2) In other emergency situations if the agency head makes a 
determination that obtaining such equipment is necessary in order to 
protect human life or property; or
    (3) When otherwise authorized by law.

0
5. Amend section 7.402 by--
0
a. Removing from paragraph (a)(1) ``cumulative leasing'' and adding 
``cumulative rental or leasing'' in its place;
0
b. Removing from paragraph (a)(2) ``favor of leasing'' and adding 
``favor of renting or leasing'' in its place;
0
c. Revising the paragraph (b) subject heading, paragraph (b)(1) 
introductory text, and paragraph (b)(2);
0
d. Removing from paragraph (b)(3) ``long term lease'' and adding ``long 
term rental or lease agreement'' in its place; and
0
e. Removing from paragraph (b)(4) ``If a lease with option'' and adding 
``If a rental or lease agreement with option'' in its place.
    The revisions read as follows:


7.402   Acquisition methods.

* * * * *
    (b) Rent or lease method. (1) The rent or lease method is 
appropriate if it is to the Government's advantage under the 
circumstances. The rent or lease method may also serve as a short-term 
measure when the circumstances--
* * * * *
    (2) If a rent or lease method is justified, a rental or lease 
agreement with option to purchase is preferable.
* * * * *

0
6. Amend section 7.403 by--
0
a. Revising the section heading;
0
b. Removing from paragraph (a) introductory text ``in lease or'' and 
adding ``in rent, lease, or'' in its place;
0
c. Revising paragraph (b); and
0
d. Adding paragraph (c).
    The revisions and addition read as follows:


7.403   General Services Administration assistance and OMB guidance.

* * * * *
    (b) For additional GSA assistance and guidance, agencies may--
    (1) Request information from the GSA FAS National Customer Service 
Center by phone at 1-800-488-3111 or by email at 
[email protected]; and
    (2) See GSA website, Schedule 51 V Hardware Superstore-Equipment 
Rental, (https://www.gsa.gov/buying-selling/products-services/industrial-products-services/rental-of-industrial-equipment).
    (c) For additional OMB guidance, see--
    (1) Section 13, Special Guidance for Lease-Purchase Analysis, and 
paragraph 8.c.(2), Lease-Purchase Analysis, of OMB Circular A-94, 
Guidelines and Discount Rates for Benefit-Cost Analysis of Federal 
Programs, (https://www.whitehouse.gov/sites/whitehouse.gov/files/omb/circulars/A94/a094.pdf); and
    (2) Appendix B, Budgetary Treatment of Lease-Purchases and Leases 
of Capital Assets, of OMB Circular A-11, Preparation, Submission, and 
Execution of the Budget, (https://www.whitehouse.gov/wp-content/uploads/2018/06/app_b.pdf).


7.404   [Amended]

0
7. Amend section 7.404 by removing ``a lease with'' and adding ``a 
rental or lease agreement with'' in its place.

[FR Doc. 2021-11866 Filed 6-9-21; 8:45 am]
BILLING CODE 6820-EP-P