[Federal Register: August 23, 2001 (Volume 66, Number 164)]
[Proposed Rules]
[Page 44517-44520]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr23au01-24]
[[Page 44517]]
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Part IV
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 2, 7, 8, 16, and 17
Federal Acquisition Regulation; Task-Order and Delivery-Order
Contracts; Proposed Rule
[[Page 44518]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, 8, 16, and 17
[FAR Case 1999-303]
RIN 9000-AI72
Federal Acquisition Regulation; Task-Order and Delivery-Order
Contracts
AGENCIES: Department of Defense (DoD), General ServicesAdministration
(GSA), and National Aeronautics and SpaceAdministration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to further implement Subsections
804(a) and (b) of the National Defense Authorization Act for Fiscal
Year 2000. These subsections focus primarily on appropriate use of
task-order and delivery-order contracts and specific steps agencies
should take when placing orders under task-order and delivery-order
contracts established by another agency. The proposed amendment also
clarifies that written acquisition plans may be required for orders as
determined by the agency head.
DATES: Interested parties should submit comments in writing on or
before October 22, 2001 to be considered in the formulation of a final
rule.
ADDRESSES: Submit written comments to: General Services Administration,
FAR Secretariat (MVR), 1800 F Street, NW, Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to: farcase.1999-
303@gsa.gov
Please submit comments only and cite FAR case 1999-303 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Julia Wise, Procurement Analyst, at (202) 208-
1168. Please cite FAR case 1999-303.
SUPPLEMENTARY INFORMATION:
A. Background
On April 25, 2000, the Councils published a final rule, FAR case
1999-014, Competition Under Multiple AwardContracts, in the Federal
Register at 65 FR 24317, to clarify what contracting officers should
consider when planning for multiple awards of indefinite-delivery
contracts, and clarify how orders should be placed against the
resultant contracts. That rule implemented portions of Subsections
804(a) and (b) of the National DefenseAuthorization Act for Fiscal Year
2000. This rule proposes to further strengthen that policy and the
implementation of Subsections 804(a) and (b) of the National
DefenseAuthorization Act for Fiscal Year 2000 in several ways.
With respect to acquisition planning, the rule draws greater
attention to the capital planning requirements of the Clinger-Cohen Act
(40 U.S.C. 1422) and ensures more deliberation by agency acquisition
planners before orders are placed under a Governmentwide acquisition
contract, a task-order or delivery-order contract issued by another
agency, or the multiple award schedules program. The Councils are
continuing to review the agency acquisition planning practices of
customers of inter-agency contracts to determine if additional guidance
is needed to ensure strategic use of these vehicles.
With respect to the structuring of orders and the consideration
given to contract holders prior to order placement, the rule (1)
increases attention to modular contracting principles to help agencies
avoid unnecessarily large and inadequately defined orders, (2)
facilitates information exchange during the fair opportunity process so
that contractors may develop and propose solutions that enable the
Government to award performance-based orders, and (3) revises existing
documentation requirements to address the issuance of sole-source
orders as logical follow-ons to orders already issued under the
contract.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule to have a significant
economic impact on a substantial number of small entities within the
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq.,
because the rule merely clarifies existing language. An Initial
Regulatory Flexibility Analysis has, therefore, not been performed. We
invite comments from small businesses and other interested parties. The
Councils will consider comments from small entities concerning the
affected FAR Parts 2, 7, 8, 16, and 17 in accordance with 5 U.S.C. 610.
Interested parties must submit such comments separately and should cite
5 U.S.C. 601, et seq. (FAR case 1999-303), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
changes to the FAR do not impose information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR parts 2, 7, 8, 16, and 17:
Government procurement.
Dated: August 20, 2001.
Gloria Sochon,
Acting Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose that 48 CFR parts 2, 7, 8,
16, and 17 be amended as set forth below:
1. The authority citation for 48 CFR parts 2, 7, 8, 16, and 17
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 by adding, in alphabetical order, the
definitions ``Governmentwide acquisition contract'' and ``Multi-agency
contract (MAC)'' to read as follows:
2.101 Definitions.
* * * * *
Governmentwide acquisition contract means a task-order or delivery-
order contract for information technology established by one agency for
Governmentwide use that is operated--
(1) By an executive agent designated by the Office of Management
and Budget pursuant to Section 5112(e) of the Clinger-Cohen Act, 40
U.S.C. 1412(e); or
(2) Under a delegation of procurement authority issued by the
General Services Administration (GSA) prior to August 7, 1996, under
authority granted GSA by the Brooks Act, 40 U.S.C. 759 (repealed by
Pub. L. 104-106). The Economy Act does not apply to orders under a
Governmentwide acquisition contract.
* * * * *
Multi-agency contract (MAC) means a task or delivery order contract
established by one agency for use by Government agencies to obtain
supplies and services, consistent with the Economy Act. Multi-agency
contracts
[[Page 44519]]
include contracts for information technology established pursuant to
section 5124(a)(2) of the Clinger-Cohen Act, 40 U.S.C. 1424(a)(2).
* * * * *
PART 7--ACQUISITION PLANNING
3. Amend section 7.101 by adding, in alphabetical order, the
definition ``Order'' to read as follows:
7.101 Definitions.
* * * * *
Order means an order placed under a task-order contract or
delivery-order contract awarded by another agency (i.e., a Federal
Supply Schedule contract, Governmentwide acquisition contract, or
multi-agency contract).
* * * * *
4. In section 7.103--
a. Revise the introductory text and paragraphs (e) and (q);
b. Amend the second sentence of paragraph (r) by removing the word
``contracts'' and adding ``contract types'' in its place; and
c. Add paragraph (t) to read as follows:
7.103 Agency-head responsibilities.
The agency head must prescribe procedures for--
* * * * *
(e) Writing plans either on a systems basis, on an individual
contract basis, or on an individual order basis, depending upon the
acquisition.
* * * * *
(q) Ensuring that no purchase request is initiated or contract
entered into that would result in the performance of an inherently
governmental function by a contractor and that all contracts or orders
are adequately managed so as to ensure effective official control over
contract or order performance.
* * * * *
(t) Ensuring that agency planners on information technology
acquisitions comply with the capital planning and investment control
requirements in 40 U.S.C. 1422 and OMB Circular A-130.
5. Amend section 7.104 by revising the first sentence of paragraph
(a); in the second sentence of paragraph (b) by adding ``with'' after
the word ``consult''; and by revising the second sentence of paragraph
(c) to read as follows:
7.104 General procedures.
(a) Acquisition planning should begin as soon as the agency need is
identified, preferably well in advance of the fiscal year in which
contract award or order placement is necessary. * * *
* * * * *
(c) * * * If the plan proposes using other than full and open
competition when awarding a contract, the plan shall also be
coordinated with the cognizant competition advocate.
6. Amend section 7.105 in the first sentence of the introductory
paragraph by removing ``subparagraph'' and adding ``paragraph'' in its
place, and in the fifth sentence by adding ``or orders'' after the word
``contracts''; and by revising paragraph (b)(4) to read as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(4) Acquisition considerations. (i) For each contract contemplated,
discuss contract type selection (see part 16); use of multiyear
contracting, options, or other special contracting methods (see part
17); any special clauses, special solicitation provisions, or FAR
deviations required (see subpart 1.4); whether sealed bidding or
negotiation will be used and why; whether equipment will be acquired by
lease or purchase (see subpart 7.4) and why; and any other contracting
considerations.
(ii) For each order contemplated, discuss--
(A) For information technology acquisitions, how the capital
planning and investment control requirements of 40 U.S.C. 1422 and OMB
Circular A-130 will be met (see 7.103(s) and part 39); and
(B) Why this action benefits the Government, such as when--
(1) The agency can accomplish its mission more efficiently and
effectively (e.g., take advantage of the servicing agency's specialized
expertise; or gain access to contractors with needed expertise); or
(2) Ordering through one of these vehicles facilitates access to
small business concerns, including small disadvantaged business
concerns, 8(a) contractors, women-owned small business concerns,
HUBZone small business concerns, veteran-owned small business concerns,
or service-disabled veteran-owned small business concerns.
* * * * *
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.001 through 8.003 [Redesignated as 8.002 through 8.004]
7. Redesignate sections 8.001 through 8.003 as 8.002 through 8.004,
respectively; and add a new section 8.001;
a. In the newly designated section 8.002 remove ``8.002'' and
``shall'' and add ``8.003'' and ``must'' in their places, respectively;
b. In the newly designated section 8.003, remove ``shall'' and add
``must'' in its place; and
b. Revise the newly designated section 8.004.
The revised text reads as follows:
8.001 General.
Regardless of the source of supplies or services to be acquired,
information technology acquisitions must comply with capital planning
and investment control requirements in 40 U.S.C. 1422 and OMB Circular
A-130.
* * * * *
8.004 Contract clause.
Insert the clause at FAR 52.208-9, Contractor Use of Mandatory
Sources of Supply, in solicitations and contracts that require a
contractor to purchase supply items for Government use that are
available from the Committee for Purchase from People Who Are Blind or
Severely Disabled. The contracting officer must identify in the
contract schedule the items that must be purchased from a mandatory
source and the specific source.
8. Amend section 8.404 by revising paragraph (a) to read as
follows:
8.404 Using schedules.
(a) General. (1) Parts 13 and 19 do not apply to orders placed
against Federal Supply Schedules, except for the provision at 13.303-
2(c)(3). Orders placed against a Multiple Award Schedule (MAS), using
the procedures in this subpart, are considered to be issued using full
and open competition (see 6.102(d)(3)).
(i) Ordering offices need not seek further competition, synopsize
the requirement, make a separate determination of fair and reasonable
pricing, or consider small business programs.
(ii) GSA has already determined the prices of items under schedule
contracts to be fair and reasonable.
By placing an order against a schedule using the procedures in this
section, the ordering office has concluded that the order represents
the best value and results in the lowest overall cost alternative
(considering price, special features, administrative costs, etc.), to
meet the Government's needs.
(2) Orders placed under a Federal Supply Schedule contract are not
exempt from the development of acquisition plans (see subpart 7.1), and
an information technology acquisition strategy (see part 39).
* * * * *
[[Page 44520]]
PART 16--TYPES OF CONTRACTS
9. Amend section 16.505 as follows:
a. Revise paragraph (a)(2);
b. Amend paragraph (a)(3) by adding ``or order'' after the word
``contract'';
c. Redesignate paragraphs (a)(4), (a)(5), and (a)(6) as (a)(5),
(a)(6), and (a)(8), respectively, and add new paragraphs (a)(4) and
(a)(7);
d. Add paragraphs (b)(1)(iii)(A)(4) and(b)(1)(iii)(A)(5);
e. Remove the word ``as'' from paragraph (b)(2)(iii) and add
``because it is'' in its place;
f. Revise the introductory text of paragraph (b)(2);
g. Revise paragraph (b)(4); and
h. Revise the heading and the first sentence of paragraph (b)(5) to
read as follows:
16.505 Ordering.
(a) * * *
(2) Individual orders must clearly describe all services to be
performed or supplies to be delivered so the full cost or price for the
performance of the work can be established when the order is placed.
Orders must be within the scope, issued within the period of
performance, and be within the maximum value of the contract.
* * * * *
(4) When acquiring information technology and related services,
consider the use of modular contracting to reduce program risk (see
39.103(a)).
* * * * *
(7) Orders placed under a task-order contract or delivery-order
contract awarded by another agency (i.e., a Governmentwide acquisition
contract, or multi-agency contract)--
(i) Are not exempt from the development of acquisition plans (see
subpart 7.1), and development of an information technology acquisition
strategy (see part 39); and
(ii) May not be used to circumvent conditions and limitations
imposed on the use of funds (e.g., 31 U.S.C. 1501(a)(1)).
* * * * *
(b) * * *
(1) * * *
(iii) * * *
(A) * * *
(4) The amount of time contractors need to make informed business
decisions on whether to respond to potential orders.
(5) Whether contractors could be encouraged to respond to potential
orders by outreach efforts to promote exchanges of information, such
as--
(i) Seeking comments from two or more contractors on draft
statements of work;
(ii) Using a multiphased approach when effort required to respond
to a potential order may be resource intensive (e.g., requirements are
complex or need continued development), where all contractors are
initially considered on price considerations (e.g., rough estimates)
and other considerations as appropriate (e.g., proposed conceptual
approach, past performance). The contractors most likely to submit the
highest value solutions are then selected for one-on-one sessions with
the Government to increase their understanding of the requirements,
provide suggestions for refining requirements, and discuss risk
reduction measures.
* * * * *
(2) Exceptions to the fair opportunity process. The contracting
officer must give every awardee a fair opportunity to be considered for
a delivery order or task order exceeding $2,500 unless one of the
following statutory exceptions applies:
* * * * *
(4) Decision documentation for orders. The contracting officer must
document in the contract file the rationale for placement and price of
each order, including the basis for award and the rationale for any
tradeoffs among cost or price and non-cost considerations in making the
award decision. This documentation need not quantify the tradeoffs that
led to the decision. The contract file must also identify the basis for
using an exception to the fair opportunity process. If the agency uses
the logical follow-on exception, the rationale must describe why the
relationship between the initial order and the follow-on is logical
(e.g., in terms of scope, period of performance, or value).
(5) Task- and delivery-order ombudsman. The head of the agency must
designate a task- and delivery-order ombudsman. * * *
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
10. In section 17.500, revise paragraph (b) to read as follows:
17.500 Scope of subpart.
* * * * *
(b) The Economy Act applies when more specific statutory authority
does not exist. Examples of interagency acquisitions to which the
Economy Act does not apply include--
(1) Acquisitions from required sources of supplies prescribed in
part 8, which have separate statutory authority; and
(2) Acquisitions using Governmentwide acquisition contracts.
[FR Doc. 01-21352 Filed 8-22-01; 8:45 am]
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