[Federal Register Volume 77, Number 173 (Thursday, September 6, 2012)]
[Proposed Rules]
[Pages 54872-54873]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-21991]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8, 9, and 52
[FAR Case 2009-024; Docket 2009-024; Sequence 2]
RIN 9000-AM07
Federal Acquisition Regulation; Prioritizing Sources of Supplies
and Services for Use by the Government
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule; correction.
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SUMMARY: This document corrects the preamble to a proposed rule
published in the Federal Register of June 14, 2011, regarding
Prioritizing Sources of Supplies and Services for Use by the
Government. This document adds an Initial Regulatory Flexibility
Analysis which has been determined to be necessary since the initial
publication of the proposed rule.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before October 9, 2012 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2009-024 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2009-024.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2009-024.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2009-024'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAR Case 2009-
024, 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: Ms. Patricia Corrigan, Procurement
Analyst, at 202-208-1963, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2009-024.
SUPPLEMENTARY INFORMATION: DoD, GSA, and NASA published a proposed rule
in the Federal Register at 76 FR 34634 on June 14, 2011, to amend the
FAR part 8. FAR part 8 requires Federal agencies to satisfy their
requirements for supplies and services from or through a list of
sources in order of priority. The proposed rule would amend FAR part 8
by revising FAR 8.000, 8.002, 8.003, and 8.004, eliminating outdated
categories, and distinguishing between mandatory sources and non-
mandatory sources for consideration. Public comments were received
requesting the publication of Initial Regulatory Flexibility Analysis
(IRFA) as part of the rule. Based on the comments, DoD, GSA and NASA
determined it necessary since the initial publication of the proposed
rule to issue an IRFA. Comments on the rest of the proposed rule will
be addressed with the issuance of the final rule.
Regulatory Flexibility Act
The change may 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 Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
The objective of this rule is to clarify the order of preference
for sources that must be considered, and to distinguish them from
sources that should be considered where an agency is unable to
satisfy requirements for supplies and services from mandatory
sources.
The basis for this proposed rule is the Government
Accountability Office (GAO) decision in the protest of Murray-
Benjamin Electric Company, B-298481, 2006 CPD 129, September 7, 2006
at http://www.gao.gov/decisions/bidpro/298481.pdf. Based upon issues
brought forward in the decision, it was determined that FAR Part 8
should be amended to eliminate confusion about the use of mandatory
versus non-mandatory sources. Two sections of the FAR are being
amended to list only mandatory Government supply sources, and a new
section is being added to encourage agencies to give consideration
to using certain existing non-mandatory sources to leverage agency
buying power and achieve administrative efficiencies that reduce
costs and produce savings for our taxpayers. No new mandatory
sources are proposed for consideration, only existing sources were
included for informational purposes. The clarification is being made
to assist both the public and the Federal contracting community by
allowing them to better understand and distinguish between sources
that are mandatory for use and those that are not mandatory. The
non-mandatory sources (e.g., Federal Supply Schedules,
Governmentwide acquisition contracts, multi-agency contracts,
blanket purchase agreements (BPAs) under Federal Supply Schedule
contracts (e.g., Federal Strategic Sourcing Initiative (FSSI)
agreements)) in the new section are existing sources intended for
use by multiple agencies, and existed prior to promulgation of the
proposed change to the FAR. The proposed rule only reflects the
practice and use of the existing non-mandatory sources throughout
the Government. The existing non-mandatory sources are being listed
prior to commercial sources, but agencies remain free to compete
their requirements among commercial sources of supply, where it is
in their best interest to meet their needs through an open-market
procurement.
Because the rule clarifies regulations in FAR Part 8 on the use
of existing mandatory and non-mandatory sources, it is estimated
that the rule will apply to all entities doing business with the
Government, regardless of business size. Based on Federal
Procurement Data System reporting data, in Fiscal Year 2011, a
Governmentwide total of 193,515 new awards were made to small
businesses and other than small businesses. Of that total, 130,704
new award actions were made to small business entities. The
remaining 62,811 award actions were made to other than small
businesses. This clarification, consistent with the GAO decision in
the Murray-Benjamin Electric Company protest (B-298481), clarifies
existing FAR text regarding existing mandatory and non-mandatory
sources. No new sources were added to the FAR and all contractors
are encouraged to participate in the mandatory and non-mandatory
source programs.
This rule does not add any new compliance requirements or
information collection requirements. The rule does not duplicate,
overlap, or conflict with any other Federal rules.
No acceptable alternatives were determined. By providing
clarification, the rule reduces the probability that applicable
statutes, regulation, and policy will be misinterpreted or
misapplied at the possible economic detriment of small entities.
The Regulatory Secretariat will be submitting a copy of the Initial
Regulatory Flexibility Analysis (IRFA) to the Chief Counsel for
Advocacy of the Small Business Administration. A copy of the IRFA may
be obtained from the Regulatory Secretariat. The Councils invite
comments from small business concerns and other interested parties on
[[Page 54873]]
the expected impact of this rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by this rule
in accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2009-024) in
correspondence.
List of Subjects in 48 CFR Parts 8, 9, and 52
Government procurement.
Dated: August 31, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2012-21991 Filed 9-5-12; 8:45 am]
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