[Federal Register: September 17, 2008 (Volume 73, Number 181)]
[Rules and Regulations]
[Page 54008-54010]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr17se08-28]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005-27; FAR Case 2008-006; Item IX; Docket 2008-01, Sequence 5]
RIN 9000-AL05
Federal Acquisition Regulation; FAR Case 2008-006, Enhanced
Competition for Task and Delivery Order Contracts--Section 843 of the
Fiscal Year 2008 National Defense Authorization Act
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 the
Fiscal Year 2008 National Defense Authorization Act, Section 843
``Enhanced Competition for Task and Delivery Order Contracts'' (FY08
NDAA). Section 843 of the FY08 NDAA stipulates several requirements
regarding enhancing competition within Federal contracting.
DATES: Effective Date: September 17, 2008.
Applicability date: FAR 16.503 and 16.504, as amended by this rule,
are applicable to single award task or delivery order contracts awarded
on or after May 27, 2008. FAR 16.505, as amended by this rule, is
applicable to orders awarded on or after May 27, 2008 on existing
contracts as well as new contracts.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before November 17, 2008 to be considered in
the formulation of a final rule.
[[Page 54009]]
ADDRESSES: Submit comments identified by FAC 2005-27, FAR case 2008-
006, by any of the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-006'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-006. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-006'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-27, FAR
case 2008-006, in all correspondence related to this case. All comments
received will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Mr. William Clark, Procurement
Analyst, at (202) 219-1813 for clarification of content. Please cite
FAC 2005-27, FAR case 2008-006. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
The Fiscal Year 2008 National Defense Authorization Act (Pub. L.
110-181), Section 843 ``Enhanced Competition for Task and Delivery
Order Contracts'' includes several requirements regarding enhancing
competition within the Federal contracting framework. The provisions of
Section 843 include: (1) Limitation on single award task and delivery
order contracts greater than $100 million; (2) Enhanced competition for
task and delivery orders in excess of $5 million; and (3) Protest on
orders on the grounds that the order increases the scope, period,
maximum value of the contract under which the order is issued; or
valued in excess of $10 million.
The FAR changes are applicable to Indefinite-Delivery Requirements,
and Indefinite-Quantity, type contracts where issuance of a task or
delivery order is placed pursuant to FAR Subpart 16.5. The purpose of
this statute is to improve opportunities for competition through fair
opportunity, transparency and accountability in contracting.
1. Limitation on single award task or delivery order contracts
greater than $100 million. Section 843 states that no task or delivery
order contract in an amount estimated to exceed $100 million (including
all options) may be awarded to a single source unless the head of the
agency determines in writing that--
a. The task or delivery orders expected under the contract are so
integrally related that only a single source can reasonably perform the
work;
b. The contract provides only for firm-fixed price task or delivery
orders;
c. Only one source is qualified and capable of performing the work
at a reasonable price to the Government; or
d. It is necessary in the public interest to award the contract to
a single source due to exceptional circumstances.
The agency head must also notify Congress within 30 days after
making the determination in the public interest. The objective of this
provision is to place greater emphasis on awarding multiple award
contracts and enhancing the fair opportunity provisions within FAR
Subpart 16.5. Competition of orders leads to improved contractor
performance, stimulation of technological solutions, and reduction of
costs over time. The tenets of this provision strike at the core of
enhancing competition and ensuring competition continues to exist even
after award of the initial contract vehicles. Notwithstanding the
limitation on single awards, there are occasions when a single award is
necessary. For these occasions, Section 843 authorizes exceptions for
awarding single award task or delivery order contracts that exceed $100
million.
2. Enhanced competition for orders in excess of $5 million. This
Section 843 requirement emphasizes the importance of following certain
specified procedures in the competitive placement of task or delivery
orders with an expected value in excess of $5 million (including
options) placed against multiple award contracts. All awardees are to
be given a fair opportunity to be considered for each order, at a
minimum, a notice of the order with a clear statement of requirements,
a reasonable response period, disclosure of the significant evaluation
factors and subfactors, and where award is made on a best value basis,
a statement documenting the basis for award and the relative importance
of quality and price or cost factors. Section 843 also provides an
opportunity for a vendor to request a debriefing on orders valued over
$5 million. The goal is to improve the transparency and accountability
of agency award decisions. The new requirements apply to orders on
existing contracts, as well as on new contracts.
3. Protest of orders greater than $10 million. This Section 843
requirement provides a mechanism to protest task or delivery orders
valued in excess of $10 million (including options) under multiple
award contracts and states that the Comptroller General shall have
exclusive jurisdiction over such protests. In particular, protests are
authorized on the grounds that--
(a) The order increases the scope, period, or maximum value of the
contract under which the order is issued; or
(b) As a matter of right for orders valued in excess of $10
million. This provision provides for greater accountability, oversight
and discipline within the Federal acquisition framework, when coupled
with the requirement of post award debriefings. The existing
requirement to protest orders under section 16.505(a)(9) and the newly
added requirement for orders greater than $10 million expire May 27,
2011, unless extended by a new statute. The protest authority applies
to orders on existing contracts, as well as on new contracts.
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
Part 16 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
2005-27, FAR case 2008-006), 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
[[Page 54010]]
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 provisions of the Fiscal Year 2008 National
Defense Authorization Act Section 843 go into effect on May 27, 2008.
The Councils believe that the interim rule in the FAR will provide the
contracting officer the relevant regulatory guidance needed when
addressing requirements outlined in this notice. The rule will also
benefit industry in regards to the requirements for strengthening
competition among orders, and the ability to protest orders. However,
pursuant to Pub. L. 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 Part 16
Government procurement.
Dated: September 9, 2008.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as set forth below:
PART 16--TYPES OF CONTRACTS
0
1. The authority citation for 48 CFR part 16 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 16.503 by revising paragraph (b) to read as follows:
16.503 Requirements contracts.
* * * * *
(b) Application. (1) A requirements contract may be appropriate for
acquiring any supplies or services when the Government anticipates
recurring requirements but cannot predetermine the precise quantities
of supplies or services that designated Government activities will need
during a definite period.
(2) No requirements contract in an amount estimated to exceed $100
million (including all options) may be awarded to a single source
unless a determination is executed in accordance with
16.504(c)(1)(ii)(D).
* * * * *
0
3. Amend section 16.504 by removing from paragraph (a)(4)(v)
``16.505(b)(5)'' and adding ``16.505(b)(6)'' in its place; and adding
paragraph (c)(1)(ii)(D) to read as follows:
16.504 Indefinite-quantity contracts.
* * * * *
(c) * * *
(1) * * *
(ii) * * *
(D)(1) No task or delivery order contract in an amount estimated to
exceed $100 million (including all options) may be awarded to a single
source unless the head of the agency determines in writing that--
(i) The task or delivery orders expected under the contract are so
integrally related that only a single source can reasonably perform the
work;
(ii) The contract provides only for firm-fixed price (see 16.202)
task or delivery orders for--
(A) Products for which unit prices are established in the contract;
or
(B) Services for which prices are established in the contract for
the specific tasks to be performed;
(iii) Only one source is qualified and capable of performing the
work at a reasonable price to the Government; or
(iv) It is necessary in the public interest to award the contract
to a single source due to exceptional circumstances.
(2) The head of the agency must notify Congress within 30 days
after any determination under paragraph (c)(1)(ii)(D)(1)(iv) of this
section.
(3) The requirement for a determination for a single award contract
greater than $100 million applies in addition to the requirements of
Subpart 6.3.
* * * * *
0
4. Amend section 16.505 by--
0
a. Revising paragraph (a)(9);
0
b. Adding to the end of the fourth sentence before the period of
paragraph (b)(1)(ii) ``and the order does not exceed $5 million'';
0
c. Redesignating paragraph (b)(1)(iii) as (b)(1)(iv); and adding a new
paragraph (b)(1)(iii); and
0
d. Redesignating paragraphs (b)(4) and (b)(5) as paragraphs (b)(5) and
(b)(6); and adding a new paragraph (b)(4).
0
The revised text reads as follows:
16.505 Ordering.
(a) * * *
(9)(i) No protest under Subpart 33.1 is authorized in connection
with the issuance or proposed issuance of an order under a task-order
contract or delivery-order contract, except for--
(A) A protest on the grounds that the order increases the scope,
period, or maximum value of the contract; or
(B) A protest of an order valued in excess of $10 million. Protests
of orders in excess of $10 million may only be filed with the
Government Accountability Office, in accordance with the procedures at
33.104.
(ii) The authority to protest the placement of an order under this
subpart expires on May 27, 2011. (10 U.S.C. 2304a(d) and 2304c(d), and
41 U.S.C. 253h(d) and 253j(d)).
(b) * * *
(1) * * *
(iii) Orders exceeding $5 million. For task or delivery orders in
excess of $5 million, the requirement to provide all awardees a fair
opportunity to be considered for each order shall include, at a
minimum--
(A) A notice of the task or delivery order that includes a clear
statement of the agency's requirements;
(B) A reasonable response period;
(C) Disclosure of the significant factors and subfactors, including
cost or price, that the agency expects to consider in evaluating
proposals, and their relative importance;
(D) Where award is made on a best value basis, a written statement
documenting the basis for award and the relative importance of quality
and price or cost factors; and
(E) An opportunity for a postaward debriefing in accordance with
paragraph (b)(4) of this section.
* * * * *
(4) Postaward Notices and Debriefing of Awardees for Orders
Exceeding $5 million. The contracting officer shall notify unsuccessful
awardees when the total price of a task or delivery order exceeds $5
million.
(i) The procedures at 15.503(b)(1) shall be followed when providing
postaward notification to unsuccessful awardees.
(ii) The procedures at 15.506 shall be followed when providing
postaward debriefing to unsuccessful awardees.
(iii) A summary of the debriefing shall be included in the task or
delivery order file.
* * * * *
[FR Doc. E8-21379 Filed 9-16-08; 8:45 am]
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