[Federal Register: June 27, 2002 (Volume 67, Number 124)]
[Rules and Regulations]
[Page 43514-43516]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27jn02-21]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8 and 51
[FAC 2001-08; FAR Case 1999-614; Item II]
RIN 9000-AJ01
Federal Acquisition Regulation; Federal Supply Schedule Order
Disputes and Incidental Items
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 incorporate
policies for disputes in schedule contracts and the handling of
incidental items, and to remove the requirement to notify GSA when a
schedule contractor refuses to honor an order placed by a Government
contractor.
DATES: Effective Date: July 29, 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. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 2001-08, FAR case 1999-614.
[[Page 43515]]
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 65 FR 79702, December 19, 2000. Nine respondents submitted
comments in response to the Federal Register notice. The public
comments were received from contractors, professional associations, and
Federal agencies. Clarifying revisions have been made to FAR 8.401(d)
and 8.405-7(d) of the rule as a result of the public comments. A
summary of the significant comments and concerns expressed by
respondents is summarized below.
Addition of Open Market, Noncontract Items on a Schedule
Order. Some respondents believed that the intent regarding the
incorporation of open market, noncontract items on a schedule order
needed further clarification and recommended alternative language. The
Councils agreed that absent a definition of ``open market'' or
``noncontract'' items in the FAR further clarification is needed.
Accordingly, it has substituted the expression ``items not on the
Federal Supply Schedule'' to best characterize what these items mean.
Inclusion of FAR Part 19 in the Listing of Applicable
Acquisition Regulations. One respondent expressed concern regarding the
omission of a reference to FAR Part 19, Small Business Programs, in the
proposed language in FAR 8.401(d) for adding open market, noncontract
items to a Federal Supply Schedule BPA. The respondent believes that
the omission of FAR Part 19 in the list of applicable acquisition
regulations an agency must follow will allow ordering offices to
circumvent the requirement that all procurements valued between $2,500
and $100,000 be set aside for small business concerns.
The Councils agreed that FAR Part 19 should be included in the list
of applicable regulations in FAR 8.401(d)(1). Even though FAR
13.003(b)(1) addresses small business set-asides for acquisitions above
the micro-purchase threshold, the inclusion of FAR Part 19, in addition
to FAR Part 13, further emphasizes that ordering offices must consider
small business programs when acquiring items not on the Federal Supply
Schedule.
FAR Reference to Alternative Dispute Resolution (ADR)
Procedures for Schedule Disputes. One respondent suggested that in lieu
of the proposed language in FAR 8.405-7(d) (``The contracting officer
should use the alternative dispute resolution (ADR) procedures, when
appropriate (see 33.214)''), the language should be revised to cite the
policy statement as it is set forth in FAR 33.204, that ADR should be
used ``to the maximum extent practicable.'' The respondent further
suggested that either FAR 33.204 be cited alone, or that 33.204 be
cited in addition to 33.214. Since the language in FAR 33.204 speaks to
policy regarding the use of ADR, while 33.214 provides additional
information regarding ADR, the Councils agreed that, for clarity, both
citations be included in the final rule, and that the language in FAR
8.405-7(d) be revised.
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 addresses
internal Government administrative procedures and does not impose any
additional requirements on Government offerors or contractors.
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 8 and 51
Government procurement.
Dated: June 19, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 8 and 51 as set
forth below:
1. The authority citation for 48 CFR parts 8 and 51 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 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
2. Amend section 8.401 by adding paragraph (d) to read as follows:
8.401 General.
* * * * *
(d) For administrative convenience, an ordering office contracting
officer may add items not on the Federal Supply Schedule (also referred
to as open market items) to a Federal Supply Schedule blanket purchase
agreement (BPA) or an individual task or delivery order only if--
(1) All applicable acquisition regulations pertaining to the
purchase of the items not on the Federal Supply Schedule have been
followed (e.g., publicizing (Part 5), competition requirements (Part
6), acquisition of commercial items (Part 12), contracting methods
(Parts 13, 14, and 15), and small business programs (Part 19));
(2) The ordering office contracting officer has determined the
price for the items not on the Federal Supply Schedule is fair and
reasonable;
(3) The items are clearly labeled on the order as items not on the
Federal Supply Schedule; and
(4) All clauses applicable to items not on the Federal Supply
Schedule are included in the order.
3. Revise section 8.405-7 to read as follows:
8.405-7 Disputes.
(a) Disputes pertaining to the performance of orders under a
schedule contract. (1) Under the Disputes clause of the schedule
contract, the ordering office contracting officer may--
(i) Issue final decisions on disputes arising from performance of
the order (but see paragraph (b) of this section); or
(ii) Refer the dispute to the schedule contracting officer.
(2) The ordering office contracting officer shall notify the
schedule contracting officer promptly of any final decision.
(b) Disputes pertaining to the terms and conditions of schedule
contracts. The ordering office contracting officer shall refer all
disputes that relate to the contract terms and conditions to the
schedule contracting officer for resolution under the Disputes clause
of the contract and notify the schedule contractor of the referral.
(c) Appeals. Contractors may appeal final decisions to either the
Board of Contract Appeals servicing the agency that issued the final
decision or the U.S. Court of Federal Claims.
(d) Alternative dispute resolution. The contracting officer should
use the alternative dispute resolution (ADR) procedures, to the maximum
extent practicable (see 33.204 and 33.214).
[[Page 43516]]
PART 51--USE OF GOVERNMENT SOURCES BY CONTRACTORS
51.103 [Amended]
4. Amend section 51.103 by removing paragraph (b); and by
redesignating paragraph (c) as (b).
[FR Doc. 02-15941 Filed 6-26-02; 8:45 am]
BILLING CODE 6820-EP-P