[Federal Register Volume 75, Number 133 (Tuesday, July 13, 2010)]
[Rules and Regulations]
[Pages 40716-40717]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-16901]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Part 216
Defense Federal Acquisition Regulation Supplement; Notification
Requirements for Awards of Single-Source Task or Delivery Orders (DFARS
Case 2009-D036)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Interim rule with request for comments.
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SUMMARY: DoD is issuing an interim rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to implement section 814 of
the National Defense Authorization Act for Fiscal Year 2010.
DATES: Effective date: July 13, 2010.
Comment date: Comments on the interim rule should be submitted in
writing to the address shown below on or before September 13, 2010, to
be considered in the formation of the final rule.
ADDRESSES: Submit comments identified by DFARS Case 2009-D036, using
any of the following methods:
[cir] Federal eRulemaking Portal: http://www.regulations.gov.
Follow the instructions for submitting comments.
[cir] E-mail: [email protected]. Include DFARS Case 2009-D036 in the
subject line of the message.
[cir] Fax: 703-602-0350.
[cir] Mail: Defense Acquisition Regulations System, Attn: Ms.
Meredith Murphy, OUSD (AT&L) DPAP/DARS, Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060.
Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.
FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP (DARS), Room 3B855, 3060 Defense
Pentagon, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile
703-602-0350.
SUPPLEMENTARY INFORMATION:
A. Background
This DFARS rule implements section 814 of the National Defense
Authorization Act for Fiscal Year 2010 (Pub. L. 111-84), enacted
October 28, 2009. Section 814 is entitled ``Amendment to Notification
Requirements for Awards of Single-Source Task or Delivery Orders.'' 10
U.S.C. 2304a(d)(3)(A) prohibits the award of a sole-source task or
delivery order that is estimated to exceed $100 million (including all
options) unless the head of the agency determines in writing that--
(1) The task or delivery orders expected under the contract are so
integrally related that only a single source can reasonably perform the
work;
(2) The contract provides only for firm-fixed-price task orders or
delivery orders for products for which unit prices are established in
the contract or services for which prices are established in the
contract for the specific tasks to be performed;
(3) Only one source is qualified and capable of performing the work
at a reasonable price to the government; or
(4) Because of exceptional circumstances, it is necessary in the
public interest to award the contract to a single source.
Section 814 requires agency heads to notify the congressional
defense committees within 30 days after making any determination for
the reasons in (1) through (4) previously cited. In addition, if the
task or delivery order concerns intelligence activities of the
Department of Defense, the agency head also is required to provide
notification within 30 days of the determination to the Permanent
Select Committee on Intelligence of the House of Representatives if the
order relates to tactical intelligence and intelligence-related
activities, and to the Select Committee on Intelligence of the Senate
and the Permanent Select Committee on Intelligence of the House of
Representatives if the order relates to intelligence and intelligence-
related activities other than those activities previously mentioned.
Given the need for consistency of content and format in the
information provided to the Congress and the necessity for meeting the
30-day deadline for reporting the determinations to the Congress,
agency heads are being asked to provide the determinations, not
directly to the congressional committees, but to the Office of the
Under Secretary of Defense (Acquisition, Technology, and Logistics)
Defense Procurement and Acquisition Policy, Contract Policy and
International Contracting. This will also enable a single office to
oversee and manage the DoD picture for single-source task and delivery
orders. The new reporting requirement is located at DFARS
216.504(c)(1)(ii)(D)(2).
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. 604.
B. Regulatory Flexibility Act
DoD does not expect that this interim rule will 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 does not impose any additional requirements on small
businesses and is concerned with internal Government operating
procedures. Section 814 of the FY 2010 NDAA builds upon the existing
requirements for justification of sole-source awards of task or
delivery order contracts that are estimated to exceed $100 million
(including all options). The dollar threshold and the circumstances
justifying a sole-source award are not changed by section 814. The new
statute, however, requires agency heads to notify the congressional
defense committees within 30 days after
[[Page 40717]]
making any determination regarding the making of sole-source awards.
This is a change to internal operating procedures of the Government
with no impact on contractors or offerors. Therefore, an initial
regulatory flexibility analysis has not been performed. However, DoD
invites comments from small business concerns and other interested
parties on the expected impact of this rule on small entities.
DoD 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 (DFARS Case 2009-D036) in
correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the interim rule
does not contain any information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C., et
seq.
D. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD) that urgent and compelling circumstances exist to
promulgate this interim rule without prior opportunity for public
comments pursuant to 41 U.S.C. 418b and FAR 1.501-3(b). This interim
rule implements section 814 of the National Defense Authorization Act
for FY 2010, which prohibits the award of a sole-source task or
delivery order that is estimated to exceed $100 million (including all
options) unless the head of the agency determines that one of four
exceptions applies, and notifies appropriate congressional defense
committees (and intelligence activities, if the order concerns
intelligence activities) within 30 days of the determination. An
interim rule is necessary because the statute became effective upon
enactment on October 28, 2009, and it is imperative that DoD
contracting officers be aware of additional congressional notification
requirements as soon as possible in order to enable them to comply with
the law. DoD 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 216
Government procurement.
Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.
0
Therefore, 48 CFR part 216 is amended as follows:
PART 216--TYPES OF CONTRACTS
0
1. The authority citation for 48 CFR part 216 continues to read as
follows:
Authority: 41 U.S.C. 421 and 48 CFR chapter 1.
0
2. Section 216.504 is revised to read as follows:
216.504 Indefinite-quantity contracts.
(c)(1)(ii)(D) Limitation on single-award contracts.
* * * * *
(2) The head of the agency must notify the congressional defense
committees within 30 days after any determination under this section
and provide a copy of the determination and notification to the Deputy
Director, Defense Procurement and Acquisition Policy (Contract Policy
and International Contracting), OUSD (AT&L) DPAP/CPIC, 3060 Defense
Pentagon, Washington, DC 20301-3060. If the award concerns intelligence
or intelligence-related activities of DoD, notification shall also be
provided to the Select Committee on Intelligence of the Senate and the
Permanent Select Committee on Intelligence of the House of
Representatives. (See sample notification at PGI
216.504(c)(1)(ii)(D)(2).)
[FR Doc. 2010-16901 Filed 7-12-10; 8:45 am]
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