[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52852-52853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24570]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAC 2005-37; FAR Case 2008-034; Item IV; Docket 2009-0035, Sequence 1]
RIN 9000-AL44
Federal Acquisition Regulation; FAR Case 2008-034, Use of
Commercial Services Item Authority
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) are issuing an interim rule
amending the Federal Acquisition Regulation (FAR) to implement section
868 of the Duncan Hunter National Defense Authorization Act for Fiscal
Year 2009. Section 868 provides that purchases of commercial services
that are not offered and sold competitively in substantial quantities
in the commercial marketplace may only be considered commercial items
for the purposes of the FAR if the contracting officer determines in
writing that the offeror has submitted sufficient information to
evaluate, through price analysis, the reasonableness of the price of
such services.
DATES: Effective Date: October 14, 2009.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before December 14, 2009 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-37, FAR case 2008-
034, by any of the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-034'' into the field ``Keyword''. Select the link that
corresponds with FAR Case 2008-034. Follow the instructions provided to
submit your comment. Please include your name, company name (if any),
and ``FAR Case 2008-034'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-37, FAR
case 2008-034, 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. Edward N. Chambers, Procurement
Analyst, at (202) 501-3221 for clarification of content. Please cite
FAC 2005-37, FAR case 2008-034. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat at (202) 501-
4755.
SUPPLEMENTARY INFORMATION:
A. Background
Section 868 of the Duncan Hunter National Defense Authorization Act
for Fiscal Year 2009 (Pub. L. 110-417) states that the FAR shall be
amended with respect to the procurement of commercial services,
specifically services that are not offered and sold competitively in
substantial quantities in the commercial marketplace, but are of a type
offered and sold competitively in substantial quantities in the
commercial marketplace. These services may be considered commercial
items only if the contracting officer has determined in writing that
the offeror has submitted sufficient information to evaluate, through
price analysis, the reasonableness of the price for such services. The
rule details the information the contracting officer may consider in
order to make this determination.
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
interim rule primarily impacts actions required on the part of the
Government by requiring a new written determination by the contracting
officer. Since the current 15.403-3(a)(1) provides for contracting
officers to obtain the information necessary to evaluate price
reasonableness, this interim rule places no additional requirements on
contractors. Therefore, an Initial Regulatory Flexibility Analysis has
not been performed. The Councils will consider comments from small
entities concerning the affected FAR part 15 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 2005-37, FAR case 2008-034), in
all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0013.
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
[[Page 52853]]
compelling reasons exist to promulgate this interim rule without prior
opportunity for public comment. This action is necessary because the
rule implements section 868 of the Duncan Hunter National Defense
Authorization Act (Pub. L. 110-417), which was signed on October 14,
2008, and requires amending the FAR not later than 180 days after the
date of enactment of the Act. 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 Part 15
Government procurement.
Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 15 as set forth below:
PART 15--CONTRACTING BY NEGOTIATION
0
1. The authority citation for 48 CFR part 15 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 15.403-1 by redesignating paragraphs (c)(3)(ii) and
(c)(3)(iii) as (c)(3)(iii) and (c)(3)(iv), respectively, and adding a
new paragraph (c)(3)(ii) to read as follows:
15.403-1 Prohibition on obtaining cost or pricing data (10 U.S.C.
2306a and 41 U.S.C. 254b).
* * * * *
(c) * * *
(3) * * *
(ii) In accordance with section 868 of Pub. L. 110-417:
(A) When purchasing services that are not offered and sold
competitively in substantial quantities in the commercial marketplace,
but are of a type offered and sold competitively in substantial
quantities in the commercial marketplace, they may be considered
commercial items (thus meeting the purpose of 41 U.S.C 254b and 10
U.S.C. 2306a for truth in negotiations) only if the contracting officer
determines in writing that the offeror has submitted sufficient
information to evaluate, through price analysis, the reasonableness of
the price of such services.
(B) In order to make this determination, the contracting officer
may request the offeror to submit prices paid for the same or similar
commercial items under comparable terms and conditions by both
Government and commercial customers; and
(C) If the contracting officer determines that the information
described in paragraph (c)(3)(ii)(B) of this section is not sufficient
to determine the reasonableness of price, other relevant information
regarding the basis for price or cost, including information on labor
costs, material costs and overhead rates may be requested.
* * * * *
0
3. Amend section 15.403-3 by adding paragraph (c)(3) to read as
follows:
15.403-3 Requiring information other than cost or pricing data.
* * * * *
(c) * * *
(3) For services that are not offered and sold competitively in
substantial quantities in the commercial marketplace, but are of a type
offered and sold competitively in substantial quantities in the
commercial marketplace, see 15.403-1(c)(3)(ii).
[FR Doc. E9-24570 Filed 10-13-09; 8:45 am]
BILLING CODE 6820-EP-S