[Federal Register: July 27, 2005 (Volume 70, Number 143)]
[Rules and Regulations]
[Page 43578-43580]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jy05-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 8
[FAC 2005-05; FAR Case 2005-004; Item II]
RIN 9000-AK23
Federal Acquisition Regulation; Documentation Requirement for
Limited Sources Under Federal Supply Schedules
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 make editorial and
restructuring changes to clarify the procedures when an ordering
activity limits consideration of schedule contractors.
DATES: Effective Date: July 27, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Linda Nelson, Procurement
Analyst, at (202) 501-1900. Please cite FAC 2005-05, FAR case 2005-004.
SUPPLEMENTARY INFORMATION:
A. Background
On June 18, 2004, DoD, GSA, and NASA published FAR case 1999-603
(69 FR 34231) amending the FAR to incorporate ordering procedures for
orders against Federal Supply Schedules (FSS), including the
documentation requirements for justifying sole source orders. The rule
inadvertently established these justification and approval requirements
for sole source orders instead of when an ordering activity restricts
consideration of schedule contractors to less than the required number.
This rule corrects that oversight. The final rule also based the
content of the documentation requirements on that in FAR 6.303-2. By
doing so, the rule established some unintentional and inapplicable
content requirements, especially for orders under the simplified
acquisition threshold (SAT). This rule corrects those unintended
changes by establishing the standard for justifying restricted orders
under the SAT and accurately specifying the justification content for
restricted orders above the SAT.
The Councils agreed that the changes made did not substantively
change the intent of the subpart but are merely a clarification and,
therefore, publication for public comment is not required.
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 Regulatory Flexibility Act does not apply to this rule. This
final rule does not constitute a significant FAR revision within the
meaning of FAR 1.501 and Public Law 98-577, and publication for public
comments is not required. However, the Councils will consider comments
from small entities concerning the affected FAR Part 8 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 2005-05, FAR case
2005-004), 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 Part 8
Government procurement.
Dated: July 20. 2005.
Julia B. Wise,
Director, Contract Policy Division.
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Therefore, DoD, GSA, and NASA amend 48 CFR part 8 as set forth below:
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
1. The authority citation for 48 CFR part 8 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
0
2. Amend section 8.401 by revising the definition ``Multiple Award
Schedule (MAS'') to read as follows:
8.401 Definitions.
* * * * *
Multiple Award Schedule (MAS) means contracts awarded by GSA or the
Department of Veterans Affairs (VA) for similar or comparable supplies,
or services, established with more than one supplier, at varying
prices. The primary statutory authorities for the MAS program are Title
III of the Federal Property and Administrative Services Act of 1949 (41
U.S.C. 251, et seq.) and Title 40 U.S.C. 501, Services for Executive
Agencies.
* * * * *
0
3. Amend section 8.405-1 in the second sentence of the introductory
text of paragraph (c) by adding ``at least three schedule contractors
through'' after the word ``surveying''; and adding paragraph (e) to
read as follows:
8.405-1 Ordering procedures for supplies, and services not requiring a
statement of work.
* * * * *
(e) Minimum documentation. The ordering activity shall document--
[[Page 43579]]
(1) The schedule contracts considered, noting the contractor from
which the supply or service was purchased;
(2) A description of the supply or service purchased; and
(3) The amount paid.
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4. Amend section 8.405-2 by adding paragraph (e) to read as follows:
8.405-2 Ordering procedures for services requiring a statement of
work.
* * * * *
(e) Minimum documentation. The ordering activity shall document--
(1) The schedule contracts considered, noting the contractor from
which the service was purchased;
(2) A description of the service purchased;
(3) The amount paid;
(4) The evaluation methodology used in selecting the contractor to
receive the order;
(5) The rationale for any tradeoffs in making the selection;
(6) The price reasonableness determination required by paragraph
(d) of this subsection; and
(7) The rationale for using other than--
(i) A firm-fixed price order; or
(ii) A performance-based order.
8.405-3 [Amended]
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5. Amend section 8.405-3 in paragraph (b)(2)(i) by removing the word
``additional''.
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6. Revise the section heading and text of section 8.405-6 to read as
follows:
8.405-6 Limited sources justification and approval.
(a) Orders placed under Federal Supply Schedules are exempt from
the requirements in Part 6. However, an ordering activity must justify
its action when restricting consideration of schedule contractors to
fewer than required in 8.405-1 or 8.405-2.
(b) Circumstances that may justify restriction include--
(1) Only one source is capable of responding due to the unique or
specialized nature of the work;
(2) The new work is a logical follow-on to an original Federal
Supply Schedule order provided that the original order was placed in
accordance with the applicable Federal Supply Schedule ordering
procedures. The original order must not have been previously issued
under sole source or limited source procedures;
(3) The item is peculiar to one manufacturer. A brand name item,
whether available on one or more schedule contracts, is an item
peculiar to one manufacturer; or
(4) An urgent and compelling need exists, and following the
ordering procedures would result in unacceptable delays.
(c) When an ordering activity restricts consideration of schedule
contractors to fewer than that required in 8.405-1 or 8.405-2, the
ordering activity shall procure such requirements under this subpart
only if the need to do so is justified in writing and approved at the
levels specified in paragraphs (d) and (f) of this subsection.
(d) Orders exceeding the micro-purchase threshold, but not
exceeding the simplified acquisition threshold as defined in 2.101. For
proposed orders exceeding the micro-purchase threshold, but not
exceeding the simplified acquisition threshold, the ordering activity
contracting officer shall document the circumstances when restricting
consideration of schedule contractors to fewer than required in 8.405-1
or 8.405-2.
(e) Orders exceeding the simplified acquisition threshold. (1) For
proposed orders exceeding the simplified acquisition threshold, the
requiring activity shall assist the ordering activity contracting
officer in the preparation of the justification. The justification
shall cite that the acquisition is conducted under the authority of the
Multiple Award Schedule Program (see 8.401).
(2) As a minimum, each justification shall include the following
information:
(i) Identification of the agency and the contracting activity, and
specific identification of the document as a ``Limited Source
Justification.''
(ii) Nature and/or description of the action being approved.
(iii) A description of the supplies or services required to meet
the agency's needs (including the estimated value).
(iv) Identification of the justification rationale (see 8.405-6(b))
and, if applicable, a demonstration of the proposed contractor's unique
qualifications to provide the required supply or service.
(v) A determination by the ordering activity contracting officer
that the order represents the best value consistent with 8.404(d).
(vi) A description of the market research conducted among schedule
holders and the results or a statement of the reason market research
was not conducted.
(vii) Any other facts supporting the justification.
(viii) A statement of the actions, if any, the agency may take to
remove or overcome any barriers that preclude the agency from meeting
the requirements of 8.405-1 and 8.405-2 before any subsequent
acquisition for the supplies or services is made.
(ix) The ordering activity contracting officer's certification that
the justification is accurate and complete to the best of the
contracting officer's knowledge and belief.
(x) Evidence that any supporting data that is the responsibility of
technical or requirements personnel (e.g., verifying the Government's
minimum needs or requirements or other rationale for limited sources)
and which form a basis for the justification have been certified as
complete and accurate by the technical or requirements personnel.
(f) Justification approvals. (1) For proposed orders exceeding the
simplified acquisition threshold, but not exceeding $500,000, the
ordering activity contracting officer's certification that the
justification is accurate and complete to the best of the ordering
activity contracting officer's knowledge and belief will serve as
approval, unless a higher approval level is established in accordance
with agency procedures.
(2) For a proposed order exceeding $500,000, but not exceeding $10
million, the justification must be approved by the competition advocate
of the activity placing the order, or by an official named in paragraph
(f)(3) or (f)(4) of this subsection. This authority is not delegable.
(3) For a proposed order exceeding $10 million, but not exceeding
$50 million (or, for DoD, NASA, and the Coast Guard, not exceeding $75
million), the justification must be approved by--
(i) The head of the procuring activity placing the order;
(ii) A designee who--
(A) If a member of the armed forces, is a general or flag officer;
(B) If a civilian, is serving in a position in a grade above GS-15
under the General Schedule (or in a comparable or higher position under
another schedule); or
(iii) An official named in paragraph (f)(4) of this subsection.
(4) For a proposed order exceeding $50 million (or, for DoD, NASA,
and the Coast Guard, over $75 million), the justification must be
approved by the senior procurement executive of the agency placing the
order. This authority is not delegable, except in the case of the Under
Secretary of Defense for Acquisition, Technology, and Logistics, acting
as the senior procurement executive for the Department of Defense.
8.405-7 [Removed]
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7. Remove section 8.405-7.
[[Page 43580]]
8.405-8 [Redesignated as 8.405-7]
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8. Redesignate section 8.405-8 as 8.405-7.
[FR Doc. 05-14667 Filed 7-26-05; 8:45 am]
BILLING CODE 6820-EP-S