[Federal Register: April 30, 2002 (Volume 67, Number 83)]
[Rules and Regulations]
[Page 21533-21534]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30ap02-13]
[[Page 21533]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, and 37
[FAC 2001-07; FAR Case 2000-307; Item I]
RIN 9000-AJ12
Federal Acquisition Regulation; Preference for Performance-Based
Contracting
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement Section
821 of the Floyd D. Spence National Defense Authorization Act. The FAR
rule explicitly states that performance-based contracting is the
preferred method for acquiring services, enumerates an order of
precedence, and further clarifies the documentation required in an
acquisition plan when acquiring services.
DATES: Effective Date: May 15, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (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 FAC 2001-07, FAR case 2000-307.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 66 FR 22082, May 2, 2001. The interim rule explicitly
stated that performance-based contracting is the preferred method for
acquiring services and enumerated the order of precedence established
by Section 821 of the Floyd D. Spence National Defense Authorization
Act for Fiscal Year 2001 (Pub. L. 106-398). The coverage contained in
the final rule is the same as that in the interim rule except that the
final rule amends paragraph (b)(4) of FAR 7.105 to clarify that
contracting officers must provide rationale if a performance-based
contract will not be used or if a performance-based contract for
services is contemplated on other than a firm-fixed price basis (see
37.102(a) and 16.505(a)(3)).
Two respondents submitted comments on the interim rule. The first
comment suggested that the language changes in FAR Parts 2 and 37 in
this rule should be incorporated into FAR Part 8. While the Councils do
not believe added references in Part 8 are needed as a general matter
with respect to this rulemaking, revisions to Subpart 8.4 regarding use
of the Federal Supply Schedules for the acquisition of services are
under development and references to Part 37 policies on performance-
based service contracting will be considered for incorporation as
appropriate as part of that regulatory initiative.
The second comment stated that the FAR Part 2 definition for
performance-based contracting is internally inconsistent because it
calls for requirements to be set forth in clear, specific, and
objective terms with measurable outcomes but also dictates the use of
``broad and imprecise'' statements of work. The Councils disagree. As
revised, the definition of performance-based contracting, consistent
with section 821(e) of the Defense Authorization Act for FY 01,
explains what performance-based contracting should not include (e.g.,
broad and imprecise work statements, a structure centering on the
manner that the work should be performed), and what it should contain
(e.g., a work statement that has clear, specific, and objective terms
with measurable outcomes).
This commenter further suggested that the regulations do not need
to be changed, but acquisition personnel need to be trained in
developing performance-based requirements. The regulatory changes in
this rule are not meant as a substitute for training that will enhance
the knowledge and skills of acquisition personnel in performance-based
contracting. Guidance is available at the following websites:
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.arnet.gov/Library/OFPP/BestPractices/,
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://oamweb.osec.doc.gov/pbsc/index.html, or
http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gsa.gov/Portal/content/pubs
content.jsp?contentOID=119969&contentType=1008&PMVP=1.
Finally, the Office of Federal Procurement Policy has advised the
FAR Council that it is establishing an inter-agency group to ensure a
common understanding among the agencies regarding performance-based
contracting requirements.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 does not
impose a new policy requirement on small entities. The FAR currently
promotes the use of and documentation of performance-based service
contracting and the use of firm-fixed-price type of contracts and task
orders when it is appropriate to do so. Therefore, a Final Regulatory
Flexibility Analysis (FRFA) was not performed. The Councils invite
comments from small businesses and other interested parties. The
Councils will also consider comments from small entities concerning the
affected FAR subparts 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. (FAC 2001-07, FAR Case 2000-307), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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, and 37
Government procurement.
Dated: April 23, 2002
Al Matera,
Director, Acquisition Policy Division.
Interim Rule Adopted as Final with One Change
Accordingly, DoD, GSA, and NASA adopt the interim rule amending 48
CFR parts 2 and 37 that was published in the Federal Register at 66 FR
22082, May 2, 2001, as a final rule with the following change:
PART 7--ACQUISITION PLANNING
1. The authority citation for 48 CFR part 7 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).
[[Page 21534]]
2. Amend section 7.105 by adding a sentence to the end of paragraph
(b)(4) to read as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(4) * * * Provide rationale if a performance-based contract will
not be used or if a performance-based contract for services is
contemplated on other than a firm-fixed price basis (see 37.102(a) and
16.505(a)(3)).
* * * * *
[FR Doc. 02-10369 Filed 4-29-02; 8:45 am]
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