[Federal Register: January 15, 2009 (Volume 74, Number 10)]
[Rules and Regulations]
[Page 2731-2733]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr15ja09-45]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 6, and 24
[FAC 2005-30; FAR Case 2008-003; Item IV; Docket 2008-0001, Sequence
08]
RIN 9000-AL13
Federal Acquisition Regulation; FAR Case 2008-003, Public
Disclosure of Justification and Approval Documents for Noncompetitive
Contracts-Section 844 of the National Defense Authorization Act for
Fiscal Year 2008
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement
Section 844 of the National Defense Authorization Act for Fiscal Year
2008 ``Public Disclosure of Justification and Approval Documents for
Noncompetitive Contracts'' (FY08 NDAA). Section 844 of the FY08 NDAA
stipulates the requirements regarding the public availability of
justification and approval documents after the award of Federal
contracts, except for information exempt from public disclosure.
DATES: Effective Date: February 17, 2009.
Applicability Date: This interim rule applies to all contracts
awarded from a 6.303-1 justification and approval document on or after
the effective date.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before March 16,
[[Page 2732]]
2009 to be considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-30, FAR case 2008-
003, by any of the following methods:
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2008-003'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2008-
003. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2008-003'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW, Room 4035, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-30, FAR
case 2008-003, in all correspondence related to this case. All comments
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. Ernest Woodson, Procurement
Analyst, at (202) 501-3775 for clarification of content. Please cite
FAC 2005-30, FAR case 2008-003. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
The National Defense Authorization Act for Fiscal Year 2008,
Section 844 ``Public Disclosure of Justification and Approval Documents
for Noncompetitive Contracts ''amends 10 U.S.C. 2304 and 41 U.S.C. 253
regarding procurements made under subsection (c) (i.e., other than
competitive procedures) to require public availability of the
justification and approval documents after contract award except for
information exempt from public disclosure under 5 U.S.C. 552. The
provisions of Section 844 require the head of an executive agency to
make certain justification and approval documents relating to the use
of noncompetitive procedures in contracting available on the website of
an agency and through a governmentwide website selected by the
Administrator for Federal Procurement Policy within 14 days of contract
award. In the case of noncompetitive contracts awarded on the basis of
unusual and compelling urgency, the documents must be posted within 30
days of contract award. The Competition in Contracting Act (Public Law
98-369) already requires that such justification and approval documents
be made available for public inspection, subject to the exemptions from
public disclosures provided in the Freedom of Information Act (5 U.S.C.
552).
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 interim rule is not expected 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 this
rule does not revise or change existing regulations pertaining to small
business concerns seeking Government contracts. Therefore, an Initial
Regulatory Flexibility Analysis has not been performed. The Councils
will consider comments from small entities concerning the affected FAR
Parts 5, 6, and 24 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 2005-30, FAR case 2008-003), in all 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.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the provision of the National Defense
Authorization Act for Fiscal Year 2008, Section 844 was enacted on
January 28, 2008. The Councils believe that the interim rule in the FAR
will provide contracting officers the relevant regulatory guidance
needed when addressing requirements outlined in this notice. The rule
will also benefit industry by increasing transparency and
accountability in federal contracting. This interim rule is applicable
to all contracts awarded from a 6.303-1 justification and approval
document on or after the effective date of this rule. However, pursuant
to Public Law 98-577 and FAR 1.501, the Councils will consider public
comments received in response to this interim rule in the formation of
the final rule.
List of Subjects in 48 CFR Parts 5, 6, and 24
Government procurement.
Dated: December 24, 2008
Edward Loeb,
Acting Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, and 24 as set
forth below:
1. The authority citation for 48 CFR parts 5, 6, and 24 continues
to read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 5--PUBLICIZING CONTRACT ACTIONS
0
2. Amend section 5.301 by adding paragraph (d) to read as follows:
5.301 General.
* * * * *
(d) Justifications for other than full and open competition must be
posted in accordance with 6.305.
0
3. Add section 5.406 to read as follows:
5.406 Public disclosure of justification and approval documents for
noncompetitive contracts.
Justifications for other than full and open competition must be
posted in accordance with 6.305.
PART 6--COMPETITION REQUIREMENTS
0
4. Revise section 6.305 to read as follows:
6.305 Availability of the justification.
(a) Except for paragraph (b) of this section, the agency shall make
publicly available within 14 days after contract award the
justification required by 6.303-1 as required by 10 U.S.C. 2304(f)(4)
and 41 U.S.C. 253(f)(4)--
(1) At the GPE http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov; and
(2) On the website of the agency, which may provide access to the
justifications by linking to the GPE.
(b) In the case of a contract award permitted under 6.302-2, the
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justification shall be posted within 30 days after contract award.
(c) Contracting officers shall carefully screen all justifications
for contractor proprietary data and remove all such data, and such
references and citations as are necessary to protect the proprietary
data, before making the justifications available for public inspection.
Contracting officers shall also be guided by the exemptions to
disclosure of information contained in the Freedom of Information Act
(5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in
determining whether other data should be removed.
PART 24--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION
0
5. Amend section 24.203 by adding after the second sentence and at the
end of paragraph (b) new sentences to read as follows:
24.203 Policy.
* * * * *
(b) * * * Other exemptions include agency personnel practices, and
law enforcement. * * * A Freedom of Information Act guide and other
resources are available at the Department of Justice website under FOIA
reference materials: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.usdoj.gov/oip.
[FR Doc. E9-555 Filed 1-14-09; 8:45 am]
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