[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
[Page 14636-14639]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr09-20]
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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 2005-32; 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: Interim rule with request for comments.
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[[Page 14637]]
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
Office of Management and Budget (OMB) Guidance M-09-10, dated February
18, 2009, entitled, ``Initial Implementing Guidance for the American
Recovery and Reinvestment Act of 2009'' (the Recovery Act), with
respect to publicizing contract actions.
DATES: Effective Date: March 31, 2009
Applicability Date: This rule applies on or after the effective
date of this rule to: (1) Solicitations issued, (2) contracts awarded,
and (3) orders issued under existing task and delivery order contracts
as defined in the rule.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before June 1, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2009-
010, 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 2009-010'' under the heading ``Comment or Submission.''
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2009-010. Follow the instructions provided to complete the
``Public Comment and Submission Form.'' Please include your name,
company name (if any), and ``FAR Case 2009-010'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, FAR Secretariat
(VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington,
DC 20405.
Instructions: Please submit comments only and cite FAC 2005-32, FAR
case 2009-010, 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: Ms. Millisa Gary, Procurement Analyst,
at (202) 501-0699 for clarification of content. Please cite FAC 2005-
32, FAR case 2009-010. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements Section 6.2 of the OMB Memorandum M-
09-10, ``Initial Implementing Guidance for the American Recovery and
Reinvestment Act of 2009,'' (Pub. L. 111-5) (Recovery Act). In
addition, this rule enables the Governmentwide Point of Entry (https: /
/http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov) to be leveraged for the purpose of fulfilling
sections 1526(c)(4) and 1554 of Division A of the Recovery Act.
On February 17, 2009, the President signed the Recovery Act. On
February 18, 2009, the Director of OMB issued initial implementing
guidance. One of the provisions of the OMB guidance is to provide
accountability and transparency relative to publicizing contract
actions. The OMB guidance requires 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).
4. Unique requirements for actions that are not fixed-price or
competitive.
B. Discussion
In order to implement Section 6.2 of the OMB Guidance M-09-10, FAR
Parts 4, 5, 8, 13, and 16 are amended as follows:
1. Part 4 requires the contracting officer 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 of 2009 (Pub. L.
111-5), in accordance with the instructions at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fpds.gov.
2. Subpart 5.7 is added to direct the contracting officer to use
the Governmentwide Point of Entry (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fedbizopps.gov) to (a)
identify the action as funded by the Recovery Act; (b) post pre-award
notices for orders exceeding $25,000 for ``informational purposes
only;'' (c) describe supplies and services (including construction) in
a narrative that is clear and unambiguous to the general public; and
(d) provide a rationale for awarding any action, including
modifications and orders, that is not both fixed-price and competitive,
and include the rationale for using other than a fixed-price and/or
competitive approach.
3. Parts 8, 13, and 16 are amended to reflect the new posting
requirements for orders at Subpart 5.7.
This is a significant regulatory action and, therefore, was subject
to Office of Management and Budget (OMB) 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.
C. Regulatory Flexibility Act
The Councils do not expect this interim rule 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 the OMB guidance affects only internal government operations
and provides a strong preference for using small businesses for the
Recovery Act programs wherever possible. The interim rule does not
impose any additional requirements on small businesses. Therefore, an
Initial Regulatory Flexibility Analysis has not been performed. The
Councils will consider comments from small entities concerning the
affected FAR Parts 4, 5, 8, 13, and 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 2005-32, FAR Case 2009-010) in
correspondence.
D. 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.
E. 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 Recovery Act became effective upon enactment,
and contracts using funds appropriated by the Act will soon be ready to
award. 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 4, 5, 8, 13, and 16
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 5, 8, 13, and 16 as
set forth below:
[[Page 14638]]
0
1. The authority citation for 48 CFR parts 4, 5, 8, 13, and 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).
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.605 by adding paragraph (c) to read as follows:
4.605 Procedures.
* * * * *
(c) The contracting officer, when entering data in FPDS, shall use
the instructions at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fpds.gov to identify any action funded
in whole or in part by the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5).
PART 5--PUBLICIZING CONTRACT ACTIONS
0
3. Add Subpart 5.7 to read as follows:
Subpart 5.7--Publicizing Requirements under the American Recovery
and Reinvestment Act of 2009
Sec.
5.701 Scope.
5.702 Applicability.
5.703 Definitions.
5.704 Publicizing-preaward.
5.705 Publicizing-post-award.
Subpart 5.7--Publicizing Requirements under the American Recovery
and Reinvestment Act of 2009
5.701 Scope.
This subpart prescribes posting requirements for presolicitation
and award notices for actions funded in whole or in part by the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act). The requirements of this subpart enhance transparency
to the public.
5.702 Applicability.
This subpart applies to all actions expected to exceed $25,000
funded in whole or in part by the Recovery Act. Unlike subparts 5.2 and
5.3, this subpart includes additional requirements for orders and for
actions that are not both fixed-price and competitive.
5.703 Definition.
As used in this subpart--
Task or delivery order contract means a ``delivery order
contract,'' and a ``task order contract,'' as defined in 16.501-1. For
example, it includes Governmentwide Acquisition Contracts (GWACs),
multi-agency contracts (MACs), and other indefinite-delivery/
indefinite-quantity contracts, whether single award or multiple award.
It also includes Federal Supply Schedule contracts (including Blanket
Purchase Agreements under Subpart 8.4).
5.704 Publicizing-preaward.
(a)(1) Follow the publication procedures at 5.201.
(2) In addition, notices of proposed contract actions are required
for orders of $25,000 or more, funded in whole or in part by the
Recovery Act, which are issued under task or delivery order contracts.
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 use the instructions at the
Governmentwide Point of Entry (GPE) (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fedbizopps.gov) to
identify proposed contract actions funded in whole or in part by the
Recovery Act.
(c) Ensure that the description required by 5.207(a)(16) includes a
narrative of the products and services (including construction) that is
clear and unambiguous to the general public.
5.705 Publicizing-post-award.
Follow usual publication procedures at 5.301, except that the
following supersede the exceptions at 5.301(b)(3) through (8):
(a) For any contract action exceeding $500,000, including all
modifications and orders under task or delivery order contracts,
publicize the award notice and ensure that the description required by
5.207(a)(16) includes a narrative of the products and services
(including construction) that is clear and unambiguous to 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. 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.
Posting of Rationale--Examples
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Posting rationale on special
Description of contract action section of recovery.gov
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(1) A contract is competitively awarded Not Required.
and is fixed-price.
(2) A contract is awarded that is not Required
fixed-price..
(3) A contract is awarded without Required
competition..
(4) An order is issued under a new or Required if order is made
existing single award IDIQ contract. under a contract described
in (2) or (3).
(5) An order is issued under a new or Required if one or both of
existing multiple award IDIQ contract. the following conditions
exist:
(i) The order is not fixed-
price.
(ii) The order is awarded
pursuant to an exception to
the competition
requirements applicable to
the underlying vehicle
(e.g., award is made
pursuant to an exception to
the fair opportunity
process).
(6) A modification is issued.............. Required if modification is
made:
(i) To a contract described
in (2) or (3) above; or
(ii) To an order requiring
posting as described in (4)
or (5) above.
(7) A contract or order is awarded Required if one or both of
pursuant to a small business contracting the following conditions
authority (e.g., SBA's section 8(a) exist:
program). (i) The contract or order is
not fixed-price;
(ii) The contract or order
was not awarded using
competition (e.g., a non-
competitive 8(a) award).
------------------------------------------------------------------------
(c) Contracting officers shall use the instructions at the
Governmentwide Point of Entry (GPE) (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fedbizopps.gov) to
identify actions funded in whole or in part by the Recovery Act.
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
4. Amend section 8.404 by revising the last sentence in paragraph (a);
and by adding a new paragraph (e) to read as follows:
[[Page 14639]]
8.404 Use of Federal Supply Schedules.
(a) General.* * * Therefore, when establishing a BPA (as authorized
by 13.303-2(c)(3)), or placing orders under Federal Supply Schedule
contracts using the procedures of 8.405, ordering activities shall not
seek competition outside of the Federal Supply Schedules or synopsize
the requirement; but see paragraph (e) of this section for orders
(including orders issued under BPAs) funded in whole or in part by the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).
* * * * *
(e) Publicizing contract actions funded in whole or in part by the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
(1) Notices of proposed MAS orders (including orders issued under
BPAs) that are for ``informational purposes only'' exceeding $25,000
shall follow the procedures in 5.704 for posting orders.
(2) Award notices for MAS orders (including orders issued under
BPAs) shall follow the procedures in 5.705.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
5. Amend section 13.105 by adding paragraph (d) to read as follows:
13.105 Synopsis and posting requirements.
* * * * *
(d) When publicizing contract actions funded in whole or in part by
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
(1) Notices of proposed contract actions shall follow the
procedures in 5.704 for posting orders.
(2) Award notices shall follow the procedures in 5.705.
PART 16--TYPES OF CONTRACTS
0
6. Amend section 16.505 by revising paragraph (a)(1); and adding
paragraph (a)(10) to read as follows:
16.505 Ordering.
(a) * * *
(1) In general, the contracting officer does not synopsize orders
under indefinite-delivery contracts; but see 16.505(a)(10) for orders
funded in whole or in part by the American Recovery and Reinvestment
Act of 2009 (Pub. L. 111-5).
* * * * *
(10) Publicize orders funded in whole or in part by the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) as follows:
(i) Notices of proposed orders shall follow the procedures in 5.704
for posting orders.
(ii) Award notices for orders shall follow the procedures in 5.705.
* * * * *
[FR Doc. E9-7019 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P