[Federal Register: August 30, 2002 (Volume 67, Number 169)]
[Rules and Regulations]
[Page 56117-56120]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30au02-25]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 7, 8, 16, 17, and 52
[FAC 2001-09; FAR Case 1999-303; Item I]
RIN 9000-AI72
Federal Acquisition Regulation; Task-Order and Delivery-Order
Contracts
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) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to further implement
subsections 804(a) and (b) of the National Defense Authorization Act
for Fiscal Year 2000. These subsections focus primarily on appropriate
use of task-order and delivery-order contracts and specific steps
agencies should take when placing orders under task-order and delivery-
order contracts established by another agency. The rule also clarifies
that written acquisition plans may be required for orders as determined
by the agency head.
DATES: Effective Date: September 30, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Julia Wise, Procurement Analyst, at (202) 208-
1168. Please cite FAC 2001-09, FAR case 1999-303.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils published a final rule, FAR case 1999-014, Competition
Under Multiple Award Contracts, in the Federal Register at 65 FR 24317,
April 25, 2000, to clarify what contracting officers should consider
when planning for multiple awards of indefinite-delivery contracts, and
clarify how orders should be placed against the resultant contracts.
That rule implemented portions of subsections 804(a) and (b) of the
National Defense Authorization Act for Fiscal Year 2000. This rule
further strengthens that policy and the implementation of subsections
804(a) and (b) of the National Defense Authorization Act for Fiscal
Year 2000 in several ways.
With respect to acquisition planning, the rule draws greater
attention to the capital planning requirements of the Clinger-Cohen Act
(40 U.S.C. 1422) and ensures more deliberation by agency acquisition
planners before orders are placed under a Federal Supply Schedule
contract; or task-order contract or delivery-order contract awarded by
another agency, (i.e., Governmentwide acquisition contract or multi-
agency contract). The Councils are continuing to review the agency
acquisition planning practices of customers of interagency contracts to
determine if additional guidance is needed to ensure strategic use of
these vehicles.
With respect to the structuring of orders and the consideration
given to contract holders prior to order placement, the rule (1)
increases attention to modular contracting principles to help agencies
avoid unnecessarily large and inadequately defined orders, (2)
facilitates information exchange during the fair opportunity process so
that contractors may develop and propose solutions that enable the
Government to award performance-based orders, and (3) revises existing
documentation requirements to address tradeoff decisions as well as the
issuance of sole-source orders as logical follow-ons to orders already
issued under the contract.
This rule also adds to the FAR a separate definition for the terms
``Governmentwide acquisition contract (GWAC)'' and ``Multi-agency
contract (MAC)'' to clarify the difference between the terms and the
purpose of each contract vehicle.
A proposed rule was published in the Federal Register at 66 FR
44518, August 23, 2001. Four sources submitted comments in response to
the proposed rule. This final rule includes a change based on some of
the comments received. Substantive public comments addressed the need
for additional clarification pertaining to the application of the
Economy Act within the proposed definition of multi-agency contract.
The definition states that supplies and services would be obtained
``consistent with'' the Economy Act. The Councils agreed that
clarification was needed. Accordingly, the definition of multi-agency
contract was amended by adding a reference to FAR 17.500(b), which
expressly provides that the Economy Act is not applicable if an
interagency acquisition is authorized under a more specific statutory
[[Page 56118]]
authority. In other words, use of more specific authority, if it
exists, would still be ``consistent with'' the Economy Act.
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 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 makes various
changes to improve the use of task-order contracts and delivery-order
contracts. The primary focus is on usage of these contracts where
multiple awards are made and where the contracts are being used to
support inter-agency transactions. Some aspects of the final rule
(e.g., planning, documentation) largely address the internal operating
procedures of Government agencies. The changes that affect small
entities should have a slight positive effect by, among other things,
strengthening use of the fair opportunity process to ensure small
entities are appropriately being given opportunities to pursue business
opportunities under multiple award task-order and delivery-order
contracts. The rule further acknowledges that access to small business
concerns is an appropriate factor for an agency to consider as part of
its acquisition planning prior to placing an order under a contract
awarded by another agency.
We did not receive any comments regarding this determination as a
result of publication of the proposed rule in the Federal Register at
66 FR 44518, August 23, 2001.
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.
3501, et seq.
List of Subjects in 48 CFR Parts 2, 7, 8, 16, 17, and 52
Government procurement.
Dated: August 21, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 7, 8, 16, 17,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 7, 8, 16, 17, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 by adding, in alphabetical order, the
definitions ``Governmentwide acquisition contract (GWAC)'' and ``Multi-
agency contract (MAC)'' to read as follows:
2.101 Definitions.
* * * * *
Governmentwide acquisition contract (GWAC) means a task-order or
delivery-order contract for information technology established by one
agency for Governmentwide use that is operated--
(1) By an executive agent designated by the Office of Management
and Budget pursuant to section 5112(e) of the Clinger-Cohen Act, 40
U.S.C. 1412(e); or
(2) Under a delegation of procurement authority issued by the
General Services Administration (GSA) prior to August 7, 1996, under
authority granted GSA by the Brooks Act, 40 U.S.C. 759 (repealed by
Public Law 104-106). The Economy Act does not apply to orders under a
Governmentwide acquisition contract.
* * * * *
Multi-agency contract (MAC) means a task-order or delivery-order
contract established by one agency for use by Government agencies to
obtain supplies and services, consistent with the Economy Act (see
17.500(b)). Multi-agency contracts include contracts for information
technology established pursuant to section 5124(a)(2) of the Clinger-
Cohen Act, 40 U.S.C. 1424(a)(2).
* * * * *
PART 7--ACQUISITION PLANNING
3. Amend section 7.101 by adding, in alphabetical order, the
definition ``Order'' to read as follows:
7.101 Definitions.
* * * * *
Order means an order placed under a--
(1) Federal Supply Schedule contract; or
(2) Task-order contract or delivery-order contract awarded by
another agency, (i.e., Governmentwide acquisition contract or multi-
agency contract).
* * * * *
4. Amend section 7.103 by revising paragraphs (e) and (q); and
adding paragraph (t) to read as follows:
7.103 Agency-head responsibilities.
* * * * *
(e) Writing plans either on a systems basis, on an individual
contract basis, or on an individual order basis, depending upon the
acquisition.
* * * * *
(q) Ensuring that no purchase request is initiated or contract
entered into that would result in the performance of an inherently
governmental function by a contractor and that all contracts or orders
are adequately managed so as to ensure effective official control over
contract or order performance.
* * * * *
(t) Ensuring that agency planners on information technology
acquisitions comply with the capital planning and investment control
requirements in 40 U.S.C. 1422 and OMB Circular A-130.
5. Amend section 7.104 by revising the first sentence of paragraph
(a); in the second sentence of paragraph (b) by adding ``with'' after
the word ``consult''; and by revising the second sentence of paragraph
(c) to read as follows:
7.104 General procedures.
(a) Acquisition planning should begin as soon as the agency need is
identified, preferably well in advance of the fiscal year in which
contract award or order placement is necessary. * * *
* * * * *
(c) * * * If the plan proposes using other than full and open
competition when awarding a contract, the plan shall also be
coordinated with the cognizant competition advocate.
6. Amend section 7.105 in the first sentence of the introductory
paragraph by removing ``subparagraph'' and adding ``paragraph'' in its
place, and in the last sentence by adding ``or orders'' after the word
``contracts''; and by revising paragraph (b)(4) to read as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(4) Acquisition considerations. (i) For each contract contemplated,
discuss contract type selection (see part 16); use of multiyear
contracting, options, or other special contracting methods (see part
17); any special clauses, special solicitation provisions, or FAR
[[Page 56119]]
deviations required (see subpart 1.4); whether sealed bidding or
negotiation will be used and why; whether equipment will be acquired by
lease or purchase (see subpart 7.4) and why; and any other contracting
considerations.
(ii) For each order contemplated, discuss--
(A) For information technology acquisitions, how the capital
planning and investment control requirements of 40 U.S.C. 1422 and OMB
Circular A-130 will be met (see 7.103(t) and part 39); and
(B) Why this action benefits the Government, such as when--
(1) The agency can accomplish its mission more efficiently and
effectively (e.g., take advantage of the servicing agency's specialized
expertise; or gain access to contractors with needed expertise); or
(2) Ordering through an indefinite delivery contract facilitates
access to small business concerns, including small disadvantaged
business concerns, 8(a) contractors, women-owned small business
concerns, HUBZone small business concerns, veteran-owned small business
concerns, or service-disabled veteran-owned small business concerns.
* * * * *
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.001 through 8.003 [Redesignated as 8.002 through 8.004]
7. Redesignate sections 8.001 through 8.003 as 8.002 through 8.004,
respectively; and add a new section 8.001;
7a. In the newly designated section 8.002 remove from the
introductory text of paragraph (a) ``8.002'' and add ``8.003'' in its
place; and in the second sentence of the newly designated section
8.004, remove ``must'' and add ``shall'' (twice) in its place.
The added text reads as follows:
8.001 General.
Regardless of the source of supplies or services to be acquired,
information technology acquisitions shall comply with capital planning
and investment control requirements in 40 U.S.C. 1422 and OMB Circular
A-130.
* * * * *
8.401 [Amended]
8. Amend section 8.401 in the first sentence of paragraph (a) by
removing ``8.001'' and adding ``8.002'' in its place.
9. Amend section 8.404 by revising paragraph (a) to read as
follows:
8.404 Using schedules.
(a) General. (1) Parts 13 and 19 do not apply to orders placed
against Federal Supply Schedules, except for the provision at 13.303-
2(c)(3). Orders placed against a Multiple Award Schedule (MAS), using
the procedures in this subpart, are considered to be issued using full
and open competition (see 6.102(d)(3)).
(i) Ordering offices need not seek further competition, synopsize
the requirement, make a separate determination of fair and reasonable
pricing, or consider small business programs.
(ii) GSA has already determined the prices of items under schedule
contracts to be fair and reasonable. By placing an order against a
schedule using the procedures in this section, the ordering office has
concluded that the order represents the best value and results in the
lowest overall cost alternative (considering price, special features,
administrative costs, etc.) to meet the Government's needs.
(2) Orders placed under a Federal Supply Schedule contract are not
exempt from the development of acquisition plans (see subpart 7.1), and
an information technology acquisition strategy (see part 39).
* * * * *
8.602 [Amended]
10. Amend section 8.602 in the introductory text of paragraph (b)
by removing ``8.001'' and adding ``8.002'' in its place.
PART 16--TYPES OF CONTRACTS
11. Amend section 16.505 as follows:
a. Revise paragraph (a)(2);
b. In paragraph (a)(3) by adding ``or order'' after the word
``contract'';
c. Redesignate paragraphs (a)(4), (a)(5), and (a)(6) as (a)(5),
(a)(6), and (a)(8), respectively, and add new paragraphs (a)(4) and
(a)(7);
d. Add paragraphs (b)(1)(iii)(A)(4) and (b)(1)(iii)(A)(5);
e. Revise the introductory text of paragraph (b)(2);
f. Amend paragraphs (b)(2)(i) and (b)(2)(ii) by removing the
semicolons and adding periods in their places;
g. Revise paragraph (b)(2)(iii);
h. Revise paragraph (b)(4); and
i. Revise the heading and the first sentence of paragraph (b)(5).
The revised and added text reads as follows:
16.505 Ordering.
(a) * * *
(2) Individual orders shall clearly describe all services to be
performed or supplies to be delivered so the full cost or price for the
performance of the work can be established when the order is placed.
Orders shall be within the scope, issued within the period of
performance, and be within the maximum value of the contract.
* * * * *
(4) When acquiring information technology and related services,
consider the use of modular contracting to reduce program risk (see
39.103(a)).
* * * * *
(7) Orders placed under a task-order contract or delivery-order
contract awarded by another agency (i.e., a Governmentwide acquisition
contract, or multi-agency contract)--
(i) Are not exempt from the development of acquisition plans (see
subpart 7.1), and an information technology acquisition strategy (see
part 39); and
(ii) May not be used to circumvent conditions and limitations
imposed on the use of funds (e.g., 31 U.S.C. 1501(a)(1)).
* * * * *
(b) * * *
(1) * * *
(iii) * * *
(A) * * *
(4) The amount of time contractors need to make informed business
decisions on whether to respond to potential orders.
(5) Whether contractors could be encouraged to respond to potential
orders by outreach efforts to promote exchanges of information, such
as--
(i) Seeking comments from two or more contractors on draft
statements of work;
(ii) Using a multiphased approach when effort required to respond
to a potential order may be resource intensive (e.g., requirements are
complex or need continued development), where all contractors are
initially considered on price considerations (e.g., rough estimates),
and other considerations as appropriate (e.g., proposed conceptual
approach, past performance). The contractors most likely to submit the
highest value solutions are then selected for one-on-one sessions with
the Government to increase their understanding of the requirements,
provide suggestions for refining requirements, and discuss risk
reduction measures.
* * * * *
(2) Exceptions to the fair opportunity process. The contracting
officer shall give every awardee a fair opportunity to be considered
for a delivery-order or task-order exceeding $2,500 unless one
[[Page 56120]]
of the following statutory exceptions applies:
* * * * *
(iii) The order must be issued on a sole-source basis in the
interest of economy and efficiency because it is a logical follow-on to
an order already issued under the contract, provided that all awardees
were given a fair opportunity to be considered for the original order.
* * * * *
(4) Decision documentation for orders. The contracting officer
shall document in the contract file the rationale for placement and
price of each order, including the basis for award and the rationale
for any tradeoffs among cost or price and non-cost considerations in
making the award decision. This documentation need not quantify the
tradeoffs that led to the decision. The contract file shall also
identify the basis for using an exception to the fair opportunity
process. If the agency uses the logical follow-on exception, the
rationale shall describe why the relationship between the initial order
and the follow-on is logical (e.g., in terms of scope, period of
performance, or value).
(5) Task-order and delivery-order ombudsman. The head of the agency
shall designate a task-order and delivery-order ombudsman. * * *
* * * * *
PART 17--SPECIAL CONTRACTING METHODS
12. Revise paragraph (b) of section 17.500 to read as follows:
17.500 Scope of subpart.
* * * * *
(b) The Economy Act applies when more specific statutory authority
does not exist. Examples of interagency acquisitions to which the
Economy Act does not apply include--
(1) Acquisitions from required or optional sources of supplies
prescribed in Part 8, which have separate statutory authority (e.g.,
Federal Supply Schedule contracts); and
(2) Acquisitions using Governmentwide acquisition contracts.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.208-9 [Amended]
13. Amend section 52.208-9 by removing from the prescription
``8.003'' and adding ``8.004'' in its place.
[FR Doc. 02-21867 Filed 8-29-02; 8:45 am]
BILLING CODE 6820-EP-P