[Federal Register: June 16, 2010 (Volume 75, Number 115)]
[Rules and Regulations]
[Page 34271-34273]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn10-19]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 5, 8, 13, and 16
[FAC 2005-42; FAR Case 2009-010; Item III; Docket 2009-0010, Sequence
1]
RIN 9000-AL24
Federal Acquisition Regulation; FAR Case 2009-010, American
Recovery and Reinvestment Act of 2009 (the Recovery Act)--Publicizing
Contract Actions
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 adopted as final, with
minor changes, an interim rule amending the Federal Acquisition
Regulation (FAR) to implement the Office of Management and Budget (OMB)
Memorandum M-09-10, entitled ``Initial Implementing Guidance for the
American Recovery and Reinvestment Act of 2009,'' (the Recovery Act)
with respect to publicizing contract actions. The OMB issued Memorandum
M-09-15, entitled ``Updated Implementing Guidance for the American
Recovery and Reinvestment Act of 2009,'' to supplement, amend, and
clarify the initial guidance in OMB Memorandum M-09-10.
DATES: Effective Date: July 16, 2010.
Applicability Date: This rule applies on or after the effective
date of this rule to: (1) solicitations issued, (2) contracts awarded,
(3) orders issued under task and delivery order contracts, and (4)
modifications to orders issued under task and delivery order contracts.
FOR FURTHER INFORMATION CONTACT: Michael Jackson, Procurement Analyst,
at (202) 208-4949, for clarification of content. For information
pertaining to status or publication schedules, contact the FAR
Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR Case 2009-
010.
SUPPLEMENTARY INFORMATION:
A. Background
On February 17, 2009, the President signed the Recovery Act. On
February 18, 2009, the Director of the Office of Management and Budget
(OMB) issued initial implementing guidance, OMB Memorandum M-09-10. One
of the provisions of the initial OMB guidance was to provide
accountability and transparency relative to publicizing contract
actions. The OMB guidance required that the FAR be amended to reflect--
1. Unique requirements for posting of presolicitation notices;
2. Unique requirements for announcing contract awards;
3. Unique requirements for entering awards into the Federal
Procurement Data System (FPDS); and
4. Unique requirements for actions that are not fixed-price or
competitive.
The OMB Memorandum M-09-15, dated April 3, 2009, entitled ``Updated
Implementing Guidance for the American Recovery and Reinvestment Act of
2009,'' supplements, amends, and clarifies the initial guidance issued
on February 18, 2009. All significant updates to OMB Memorandum M-09-10
are outlined in section 1.5 of M-09-15. These updates are based on
ongoing input received from the public, Congress, State and local
government officials, grant and contract recipients, and Federal
personnel.
The interim rule was published in the Federal Register at 74 FR
14636 on March 31, 2009, with a request for comments by June 1, 2009.
The interim rule implemented section 6.2 of the OMB Memorandum M-
09-10. In addition, the interim rule enabled the Governmentwide Point
of Entry (GPE) (https://www.fedbizopps.gov) to be leveraged for the
purpose of fulfilling the requirements of sections 1526(c)(4) and 1554
of Division A of the Recovery Act.
Three respondents submitted seven comments in response to the
interim rule.
B. Responses to Public Comments
Below are the comments received on the interim rule, along with the
responses developed by the Councils.
1. Comment: In publicizing postaward notices, the Councils should
require that contracting officers publicize the text of the entire
contract awarded. A narrative description of the award only would
hinder transparency since a summary would omit many key details that
are essential benchmarks by which to measure the quality and
effectiveness of Government contractors. Without this information, the
public, Government watchdogs, and the news media would have a difficult
time identifying waste, fraud, and abuse and excellent contract work,
as well. While the Recovery Act specifies that a description of
contracts be posted online, the FAR should be amended in order to
realize the intent of the Act.
Response: The public may obtain copies of contracts using the
Freedom of Information Act (FOIA) process in accordance with FAR
subpart 24.2. The costs associated with redacting every Recovery Act
contract action to guard against improper disclosure of proprietary,
business confidential, or national security information would be
prohibitive.
2. Comment: The case would have contracting officers ``post
preaward notices for orders exceeding $25,000 for `informational
purposes' only''. On its face, this seems to apply to task and delivery
orders placed competitively against multiple-award contract vehicles,
such as indefinite-delivery-indefinite-quantity (IDIQ) contracts. Given
that the regulations appear to be designed for non-FFP and/or non-
competitive actions, can we confirm its justification and application
to competitively awarded IDIQ orders?
Response: The requirement to post presolicitation and award notices
on FedBizOpps GPE applies to all orders with a dollar value exceeding
$25,000 regardless of competition procedures or pricing arrangements
used, including those orders placed under Federal Supply Schedules,
Governmentwide acquisition contracts, multiple-agency contracts,
blanket purchase agreements, basic ordering agreements, and indefinite
delivery type contracts. Additionally, if noncompetitive procedures or
non-fixed-price arrangements were used for award of the order, then the
contracting officer must provide the rationale required by FAR 5.705(b)
in the award notice.
3. Comment: The case mandates that FedBizOpps notices ``describe
supplies and services in a narrative that is clear and unambiguous to
the general public.'' The phrase, ``clear and unambiguous to the
general public'' is itself ambiguous. Will there be supplemental
guidance or definitions to avoid inevitable protests based on
subjective interpretations of requirements descriptions? Suggest
replacing the term ``clear and unambiguous to the general public'' with
specific content elements required to satisfy the goals of providing
appropriate information.
Response: The phrase ``clear and unambiguous to the general
public'' is being replaced with ``clear and concise language'' to
alleviate some confusion
[[Page 34272]]
associated with the word ``unambiguous.'' This word is subject to
interpretation by the reader. However, care must be taken not to tie
the hands of the contracting officer with an overly restrictive
description of the requirement that would result in limiting
competition. The OMB Memorandum M-09-15 also advises that agencies
should ensure that descriptions of procurements use language
appropriate for a more general audience, avoiding industry-specific
terms and acronyms without plain language explanations. This concept
has been added to the FAR.
4. Comment: The case requires contracting officers to enter data in
the Federal Procurement Data System on any action funded in whole or in
part by the American Recovery and Reinvestment Act (ARRA) funds.
However, there is a disconnect between reporting in FedBizOpps and
FPDS-Next Generation (NG) since FPDS-NG Contract Action Reports do not
have a field for appropriation. A field for appropriation (e.g., ARRA
funds) needs to be added to FPDS-NG. Otherwise, research in two
separate systems is required to determine if an award is actually using
ARRA funds.
Response: Instructions for how to enter the Treasury Account Symbol
(TAS) for the Recovery Act actions in FPDS are posted at the FPDS
website and have been provided to every Federal agency through the OMB
guidance. The TAS is being collected for the Recovery Act-funded
awards. The full appropriation is not required by the statute or OMB
guidance. The GSA is working on usability enhancements to FedBizOpps to
allow for easier comparisons between the two systems.
5. Comment: In the instructions regarding the applicability date,
recommend adding modifications to this sentence as follows: ``This rule
applies on or after the effective date of this rule to (1)
solicitations issued, (2) contracts awarded, (3) orders issued under
existing task and delivery order contracts, and (4) any monetary
modifications as defined in the rule.''
Response: The Councils have expanded the instructions regarding the
applicability date to add a fourth action to include: ``modifications
to orders issued under task and delivery order contracts.'' This
addition will address modifications that are subject to the Recovery
Act postaward reporting. Modifications to orders issued under new
contracts are covered by paragraph (2) ``contracts awarded.''
6. Comment: Recommend revising FAR 5.704(a)(2) to clearly indicate
that modifications to task and delivery orders of $25,000 or more also
require publication in FedBizOpps. This could be achieved by revising
FAR 5.704(a)(2) to read as follows: ``In addition, notices of proposed
contract actions are required for orders and modifications of orders of
$25,000 or more, funded in whole or in part by the Recovery Act, which
are issued under task or delivery orders.''
Response: The Councils have not expanded the FAR to include posting
preaward notices of modifications to orders; the FAR continues to cover
modifications at the postaward notice stage.
7. Comment: This new rule is silent on FAR section 5.205, Special
situations. There is no discussion on posting special notices on R&D,
A&E, OMB Circular A-76, and 8(a). Guidance is needed in this area
considering that a portion of ARRA funding should be awarded to
American Indians, which comprise the largest percentage of 8(a) firms.
Response: Guidance is not necessary on this issue.
C. Changes to the FAR
The final rule makes the following amendments:
FAR 5.704(a)(2) to clarify that modifications of orders
are not required to be publicized at the preaward stage.
FAR 5.704(b) to require contracting officers to identify
proposed contract actions, funded in whole or in part by the Recovery
Act, by using the instructions that are at FAR 5.704(b) and available
in the Recovery FAQs at the GPE https://www.fedbizopps.gov.
FAR 5.704(c) and 5.705(a) to ensure that the description
required by FAR 5.207(a)(16) clearly defines the elements of the
requirement to the general public.
FAR 5.705(b) to require contracting officers to include in
the description of the contract action a statement specifically noting
if the action was not awarded competitively, or was not fixed-price, or
was neither competitive nor fixed-price.
This is a significant regulatory action and, therefore, was 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.
D. 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 OMB guidance
affects only internal Government operations and provides a strong
preference for using small businesses for Recovery Act programs
wherever possible. The final rule does not impose any additional
requirements on small businesses.
E. 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.
chapter 35, et seq.
List of Subjects in 48 CFR Parts 4, 5, 8, 13, and 16
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
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Accordingly, the interim rule published in the Federal Register at 74
FR 14636 on March 31, 2009, is adopted as a final rule with the
following changes:
PART 5--PUBLICIZING CONTRACT ACTIONS
0
1. The authority citation for 48 CFR part 5 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).
0
2. Amend section 5.704 by revising the section heading, paragraphs
(a)(2), (b), and (c) to read as follows:
5.704 Publicizing preaward.
(a) * * *
(2) In addition, notices of proposed contract actions are required
for orders exceeding $25,000, funded in whole or in part by the
Recovery Act, which are issued under task or delivery order contracts.
This does not include modifications to existing orders, but these
modifications are covered postaward, see 5.705. These notices are for
``informational purposes only,'' therefore, 5.203 does not apply.
Contracting officers should concurrently use their usual solicitation
practice (e.g., e-Buy).
(b) Contracting officers shall identify proposed contract actions,
funded in whole or in part by the Recovery Act, by using the following
instructions which are also available in the Recovery FAQs under
``Buyers/Engineers'' at the Governmentwide Point of Entry (GPE)
(https://www.fedbizopps.gov):
(1) If submitting notices electronically via ftp or email, enter
the word ``Recovery'' as the first word in the title field.
[[Page 34273]]
(2) If using the GPE directly, select the ``yes'' radio button for
the ``Is this a Recovery and Reinvestment Act action'' field on the
``Notice Details'' form (Step 2) located below the ``NAICS Code''
field. In addition, enter the word ``Recovery'' as the first word in
the title field.
(c) In preparing the description required by 5.207(a)(16), use
clear and concise language to describe the planned procurement. Use
descriptions of the goods and services (including construction), that
can be understood by the general public. Avoid the use of acronyms or
terminology that is not widely understood by the general public.
0
3. Amend section 5.705 by revising the section heading, paragraph (a),
the introductory text of paragraph (b), and paragraph (c) to read as
follows:
5.705 Publicizing postaward.
* * * * *
(a)(1) Publicize the award notice for any action exceeding
$500,000, funded in whole or in part by the Recovery Act, including--
(i) Contracts;
(ii) Modifications to existing contracts;
(iii) Orders which are issued under task or delivery order
contracts; and
(iv) Modifications to orders under task or delivery order
contracts.
(2) Contracting officers shall identify contract actions, funded in
whole or in part by the Recovery Act, by using the following
instructions which are also available in the Recovery FAQS under
``Buyers/Engineers'' at the Governmentwide Point of Entry (GPE)
(https://www.fedbizopps.gov):
(i) If submitting notices electronically via ftp or email, enter
the word ``Recovery'' as the first word in the title field.
(ii) If using the GPE directly, select the ``yes'' radio button for
the ``Is this a Recovery and Reinvestment Act action'' field on the
``Notice Details'' form (Step 2) located below the ``NAICS Code''
field. In addition, enter the word ``Recovery'' as the first word in
the title field.
(3) In preparing the description required by 5.207(a)(16), use
clear and concise language to describe the planned procurement. Use
descriptions of the goods and services (including construction), that
can be understood by the general public. Avoid the use of acronyms or
terminology that is not widely understood by the general public.
(b) Regardless of dollar value, if the contract action, including
all modifications and orders under task or delivery order contracts, is
not both fixed-price and competitively awarded, publicize the award
notice and include in the description the rationale for using other
than a fixed-priced and/or competitive approach. Include in the
description a statement specifically noting if the contract action was
not awarded competitively, or was not fixed-price, or was neither
competitive nor fixed-price. These notices and the rationale will be
available to the public at the GPE, so do not include any proprietary
information or information that would compromise national security. The
following table provides examples for when a rationale is required.
* * * * *
(c) Contracting officers shall use the instructions available in
the Recovery FAQs under ``Buyers/Engineers'' at the GPE (https://
www.fedbizopps.gov) to identify actions funded in whole or in part by
the Recovery Act.
[FR Doc. 2010-14220 Filed 6-15-10; 8:45 am]
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