[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52849-52851]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24565]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 6
[FAC 2005-37; FAR Case 2007-008; Item II; Docket 2007-0001, Sequence
14]
RIN 9000-AK90
Federal Acquisition Regulation; FAR Case 2007-008, Limiting
Length of Noncompetitive Contracts in ``Unusual and Compelling
Urgency'' Circumstances
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) are issuing a final rule
amending the Federal Acquisition Regulation (FAR) to implement section
862 of the Duncan Hunter National Defense Authorization Act for Fiscal
Year 2009 (Pub. L. 110-417) and Office of Federal Procurement Policy
(OFPP)
[[Page 52850]]
Administrator's memorandum of May 31, 2007. The rule limits the length
of contracts awarded noncompetitively under unusual and compelling
urgency circumstances to the minimum contract period necessary to meet
the requirements, and no longer than one year, unless the head of the
agency determines that exceptional circumstances apply.
DATES: Effective Date: October 14, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-37, FAR
case 2007-008.
SUPPLEMENTARY INFORMATION:
A. Background
The Office of Federal Procurement Policy (OFPP) Administrator's
memorandum of May 31, 2007, issued to Chief Acquisition Officers and
Senior Procurement Executives, proposed several initiatives, including
promoting competition in Federal acquisition, challenging any barriers
to such competition, and reinvigorating the role of the competition
advocate. Subsequent to issuance of the memorandum, OFPP submitted
multiple business cases proposing FAR changes to strengthen Federal
acquisition competition policies. These were established as individual
FAR cases. This FAR case specifically addresses the OFPP initiative to
limit the length of contracts awarded noncompetitively under the
authorities for unusual and compelling urgency. DoD, GSA, and NASA
published a proposed rule in the Federal Register at 73 FR 5784,
January 31, 2008. The 60-day comment period for the proposed rule ended
March 31, 2008. Two respondents provided comments for a total of eight
comments.
In October 2008 the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009, Pub. L. 110-417, was enacted. Section 862 of
this Act amended section 303(d) of the Federal Property and
Administrative Services Act of 1949 (41 U.S.C. 253(d) and 10 U.S.C
2304(d)) to require that contracts awarded under the authority of 41
U.S.C 252(c)(2) and 10 U.S.C. 2304(c) (FAR 6.302-2, Unusual and
compelling urgency), (1) may not exceed the time necessary to meet the
unusual and compelling requirements, may not exceed the time for the
agency to enter into another contract for the required goods and
services through the use of competitive procedures, and may not exceed
one year unless the head of the agency entering into the contract
determines that exceptional circumstances apply; and (2) that the
requirements in (1) of this paragraph apply to any contract in amount
greater than the simplified acquisition threshold.
The public comments and requirements of the Act were considered by
the Councils in the formation of this final rule.
Comment 1: One respondent recommended that the Councils should
shorten the contract term to not exceed six months in lieu of the
stated ``no longer than one year.''
Response: Non-concur. The time period is required by statute.
Comment 2 and 3: One respondent stated that the term ``head of the
contracting activity'' requires clarification. The respondent urges the
rule refer to the definition for the ``head of the contracting
activity'' by including FAR subpart 2.101 in FAR 6.302-2(d). Another
respondent suggested that the rule specifically state whether or not
the head of the contracting activity's authority to approve a period of
performance longer that one year is delegable.
Response: Non-concur. The National Defense Authorization Act
requires that the head of the agency make the determination required by
FAR 6.302-2(d). ``Head of the agency'' is defined in FAR subpart 2.101
and does not require defining in FAR 6.302-2(d).
The rule is silent on whether the authority may be delegated.
However, FAR 1.108(b) provides that each authority is delegable unless
specifically stated otherwise.
Comment 4: Both respondents asked whether the approval process will
be governed by FAR 6.304, which requires approval by other government
officials depending on the monetary value of the proposed contract? The
respondents urged that the process be simplified and duplication of
paperwork reduced to prevent the filing of multiple justifications and
approvals.
Response: The approval process in 6.302-2(d)(2) for the exceptional
circumstances determination is not governed by FAR 6.304. The approval
levels are different. The requirement for determining exceptional
circumstances apply is separate from the approval process at FAR 6.304.
The rule requires the determination be obtained prior to the award of
the contract; or may be obtained after award when making the
determination prior to award would unnecessarily delay the acquisition.
Comment 5: The authority of FAR 6.302-2(c)(1) currently allows
urgent and compelling justifications to be ``made and approved'' after
contract award. A respondent suggested that the new FAR citation 6.302-
2(d) be added to the 6.303 and 6.304 currently referenced in FAR 6.302-
2(c)(1) to make it clear that this can still be done.
Response: Non-Concur. As stated in the prior response, the approval
process is not governed by FAR 6.303 or FAR 6.304. The requirement for
making the determination for a performance period greater than one
year, by the head of the agency, for noncompetitive contracts in
unusual urgency and compelling circumstances, is separate from the
approval process at FAR 6.304. The rule provides for the determination
for a performance period greater than one year to be obtained after
contract award when making the determination prior to award would
unreasonably delay the acquisition.
Comment 6: One respondent urged that there be discussion added on
the public availability of approval records filed by the head of the
contracting activity.
Response: Non-concur. FAR Case 2008-003, Public Disclosure of
Justification and Approval Documents for Noncompetitive Contracts-
Section 844 of the National Defense Authorization Act for Fiscal Year
2008 (74 CFR 2731, January 15, 2009), requires the public disclosure of
justification and approval documents for noncompetitive contracts which
is a statutory requirement by 10 U.S.C. 2304 and 41 U.S.C. 253.
Comment 7: One respondent requested consideration of the impacts of
subsequent changes to the contract awarded under the new rule (e.g., an
amendment, a modification, or a follow-on contract) to the one-year
contract award restriction.
Response: Non-concur. This rule does not make changes to the
existing regulations regarding use of non-competitive awards. The
contracting activity must still comply with the justification
requirements at FAR subpart 6.3 when awarding an out-of-scope
modification to a contract, or a follow-on contract.
Comment 8: Consider a standing exception for certain multiple year
non-severable services (e.g., a major acquisition that requires a
period of performance greater than one year in order to develop or
manufacture an end product).
Response: Non-concur. The rule provides for any exception to the
one-year limit by having the head of the agency make the determination
for the longer performance contract period.
This is not a significant regulatory action and, therefore, was not
subject to
[[Page 52851]]
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 agency procedures and will benefit small entities by
encouraging competition after a one year performance period, except
when a longer performance period is properly approved. Therefore, a
Final Regulatory Flexibility Analysis has not been performed.
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.
Chapter 35, et seq.
List of Subjects in 48 CFR Part 6
Government procurement.
Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 6 as set forth below:
PART 6--COMPETITION REQUIREMENTS
0
1. The authority citation for 48 CFR part 6 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 6.302-2 by adding paragraph (d) to read as follows:
6.302-2 Unusual and compelling urgency.
* * * * *
(d) Period of Performance. The total period of performance of a
contract awarded using this authority--
(1) May not exceed the time necessary:
(i) To meet the unusual and compelling requirements of the work to
be performed under the contract; and
(ii) For the agency to enter into another contract for the required
goods and services through the use of competitive procedures.
(2) May not exceed one year unless the head of the agency entering
into the contract determines that exceptional circumstances apply.
(3) The requirements in paragraphs (1) and (2) of this section
shall apply to any contract in an amount greater than the simplified
acquisition threshold.
(4) The determination of exceptional circumstances is in addition
to the approval of the justification in 6.304.
(5) The determination may be made after contract award when making
the determination prior to award would unreasonably delay the
acquisition.
[FR Doc. E9-24565 Filed 10-13-09; 8:45 am]
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