[Federal Register: July 24, 2003 (Volume 68, Number 142)]
[Rules and Regulations]
[Page 43859-43863]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr24jy03-21]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 7, and 10
[FAC 2001-15; FAR Case 2001-030; Item III]
RIN 9000-AJ30
Federal Acquisition Regulation; Electronic Listing of Acquisition
Vehicles Available for Use by More Than One Agency
AGENCIES: Department of Defense (DoD), General ServicesAdministration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Federal Acquisition Regulatory Council (Council) has
agreed on a final rule amending the Federal Acquisition Regulation
(FAR) to require contracting activities to input information in an
online contract directory for Governmentwide acquisition contracts
(GWACs), multi-agency contracts, Federal Supply Schedule contracts, and
other procurement instruments intended for multiple agency use,
including blanket purchase agreements (BPAs) under Federal Supply
Schedule contracts. The directory is located at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov
; and encourage consideration of the online
contract directory during acquisition planning and market research.
The Office of Federal Procurement Policy (OFPP) seeks to improve
application of acquisition basics generally and use of interagency
contracts in particular. The contract directory furthers both of these
objectives by providing easier access to information that will support
more informed acquisition planning and market research. The contract
directory also furthers the Administration's efforts to create a more
efficient, effective, and citizen-centric government. See OFPP's May 6,
2003, memorandum to the Federal Acquisition Council and Agency Senior
Procurement Executives, ``Roll-Out of the Inter-Agency Contract
Directory'' available at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov.
DATES: This rule is effective July 24, 2003. This rule applies July 24,
2003 for the following procurement instruments, except for those
expiring on or before June 1, 2004: GWACs, multi-agency contracts,
Federal Supply Schedule contracts, and other procurement instruments
intended for multiple agency use, including blanket purchase agreements
(BPAs) under Federal Supply Schedule contracts.
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 Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-
6091. Please cite FAC 2001-15, FAR case 2001-030.
SUPPLEMENTARY INFORMATION:
A. Background
1. The Proposed and Final Rules
The Council published a proposed rule in the Federal Register on
February 15, 2002 (67 FR 7255). The proposed rule would add a new FAR
Subpart 5.6, Publicizing Multi-Agency Use Contracts, to--
[sbull] Make contracting officers and program managers aware of an
online database of information about GWACs, multi-agency contracts,
Federal Supply Schedule contracts, and other procurement instruments
intended for multiple agency use, including BPAs under Federal Supply
Schedule contracts;
[sbull] Require contracting activities, within ten days of award of
a procurement instrument intended for use by multiple agencies, to
enter into the database general information about the instrument, as
specified on the Web site hosting the database; and
[sbull] Require contracting activities to enter information into
the database on all existing contracts and other procurement
instruments intended for multiple agency use by a date to be
established in the final rule.
The final rule generally adopts the proposed rule with certain
changes. In particular, the final rule amends--
[sbull] FAR 7.105(b)(1) to add a requirement that contracting
officers and program managers consider the sources contained in the
database of interagency contracts, to be known as the ``contract
directory'', as prospective sources of supplies and services; and
[sbull] FAR 10.002(b)(2)(iv) to encourage querying the database
during market research for information relevant to agency acquisitions.
Consistent with the proposed rule, agencies will have ten days
after contract award to input information on new awards. See FAR
5.601(b)(1). In addition, as set forth at FAR 5.601(b)(2), agencies
will be required to enter information on existing contracts by October
31, 2003. Agencies may, but are not required to, input information on
contracts that would expire on or before June 1, 2004.
While the Council intends for the contract directory to provide
increased visibility regarding the opportunities agencies are creating
through interagency vehicles, it also recognizes that contracts
relatively close to expiration may be nearing or at ceiling limits.
Accordingly, in deciding whether to input such contracts, agencies may
consider the administrative burden to input such contracts in light of
the likely amount of customer usage prior to expiration.
2. Data Fields
The data elements that will populate the contract directory will
not be prescribed in the FAR. As noted in the preamble to the proposed
rule, specific elements will be listed on the Web site that hosts the
database. The address for the Web site is http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov
.
After consideration of public comments (discussed below), the
following data fields have been selected for use in the initial
population of the contract directory. The fields fall within one of
three categories: (1) General information about the procurement
instrument, (2) information about placing orders, and (3) information
about the servicing agency. (The numbering of the data fields below is
provided for easy reference in this preamble and may differ on the
contract directory Web site.) The list has been annotated to identify
which fields will be searchable as well as those that will have ``drop-
down'' boxes with more detailed information.
Description of Initial Data Fields for Contract Directory
Information about the procurement instrument.
(1) Program name and acronym (searchable).
(2) Procurement instrument number (searchable).
(3) Type of procurement instrument (searchable) with drop down
box that includes GWAC, multi-agency contract, Federal Supply
Schedule contract, BPA under Federal Supply Schedule contract,
other.
[[Page 43860]]
(4) Contractor.
(5) Data Universal Numbering System (DUNS) Number of the
contractor.
(6) North American Industrial Classification (NAICS) code
(searchable).
(7) Principal Product or Service Code (searchable).
(8) Brief description of supplies and services (searchable).
(9) Applicable socio-economic information (searchable) with drop
down box to identify from the following status categories those that
apply to the contractor: Small Business, Emerging Small Business,
Small Disadvantaged Business, 8(a), Very Small Business, Woman-Owned
Business, HUBZone, Veteran-Owned Small Business, Service-Disabled
Veteran-Owned Small Business, Historically Black Colleges and
Universities, Minority Institution, Javits-Wagner-O'Day
Participating Nonprofit Agency, Large Business, Other.
(10) Government Web site address where contract or program
information is located, if available.
Information about placing orders.
(11) Agencies that may place orders (searchable).
(12) Date through which agencies may place orders.
(13) Statutory authority for placing orders with a drop down box
to include--
(a) Clinger-Cohen GWAC authority (40 U.S.C. 11302(e));
(b) Economy Act (31 U.S.C. 1535), including Clinger Cohen multi-
agency contract authority (40 U.S.C. 11314(a)(2));
(c) The Federal Property and Administrative Services Act
authority for the Multiple Award Schedules Program (41 U.S.C.
259(b)(3)); and
(d) Other statutory authority not subject to the Economy Act (to
be specified).
(14) Ordering procedures, unless addressed at the Web site
identified in data field (10), above.
(15) List of administrative fees, unless addressed at the Web
site identified in data field (10), above.
Information about the servicing agency.
(16) Agency or activity that awarded the procurement instrument
(searchable).
(17) Activity point of contact/telephone number/e-mail address.
The fields described above include the following changes from the
fields that were described in the preamble to the proposed rule:
[sbull] Increased search capabilities. More fields will be
searchable. For example, agencies will be able to search the field that
identifies who may place orders. This will make it easier for agencies
to identify vehicles that are available for their own use. The ``type
of procurement instrument'' field (i.e., field no. 3) is also being
made searchable so that agencies may view offerings available through a
particular type of procurement vehicle.
To improve the visibility of the small business community, data
captured in the socio-economic information field will be made
searchable. This field will be further refined so that directory users
can identify products offered by a Javits-Wagner-O'Day participating
nonprofit agency.
The contract directory will not allow users to search for product
and service offerings by contractor. The FAR Council seeks for the
directory to be used, in general, to consider a range of sources.
Broader searching will help agencies get a better sense of marketplace
capabilities as they consider whether their needs are best met through
an interagency contract or an open market new procurement action.
[sbull] New field. A field will be added to identify the
contractor's Data Universal Numbering System (DUNS) number. DUNS
numbers serve as a common link among Government databases. For example,
DUNS numbers are required for contractors that register to do business
with the Government in the Central Contractor Registration (CCR)
database. Although DUNS numbers function as a useful business
identifier, the directory will not provide for searches by DUNS number
for the same reason that searches by contractor will not be enabled.
[sbull] Easier entry and maintenance of data. Data entry of the
socio-economic field of the directory has been modified so that
population of this information for woman-owned businesses matches the
formats for forms DD 350 and SF 279. To aid agencies in maintaining the
currency of their data, the directory will identify the last date
information on a given entry was submitted or edited. In addition, at
the point where agencies may no longer place orders, as identified by
the agency, the directory will move the information to an inactive
file.
The contract directory project is linked to a broader e-Government
initiative to create an ``integrated acquisition environment'' (IAE).
The goal of the IAE is to facilitate the migration and leveraging of
information technology investments to modernized infrastructures. Once
this transformation occurs, agencies will be able to effectively
integrate the many functions critical to the successful operation of
the acquisition process. Among other things, this effort will help to
eliminate redundant processes. As efforts progress to modernize and
integrate contract-writing systems, agencies will be able to populate
fields in the contract directory without re-keying of information. In
the meantime, electronic data submission is an option.
Like other IAE initiatives, the contract directory will be subject
to a governance structure and its operations will be overseen by a
configuration management board. Currently, a Federal interagency users
group, the ``E-Catalogs Group,'' under the aegis of GSA in its capacity
as managing partner of the IAE, meets periodically to discuss how the
contract directory will operate. The group has sought to minimize
burden while ensuring the site supports acquisition planning and market
research efforts.
3. Public Comments
Twelve respondents submitted public comments on the proposed rule
and the planned fields for the contract directory (as described in the
preamble to the proposed rule). The comments primarily focused on: (1)
The purpose of FAR coverage, (2) the burden associated with populating
and maintaining the contract directory, (3) the functionality of the
directory, and (4) impact on small business. All comments were
considered in developing the final rule and first generation of data
elements. A summary of the more significant comments and their
disposition is provided below.
a. Purpose of FAR coverage. One commenter recommended that the
coverage proposed for FAR Subpart 5.6 establishing the requirement to
enter interagency contracts into the database be moved to FAR Part 4,
where administrative matters, including contract reporting, are
covered. Another commenter supported finalizing the coverage in its
proposed location in FAR Part 5.
The FAR Council recognizes that other data reporting requirements,
such as that for the Federal Procurement Data System (FPDS), are
addressed in FAR Part 4. However, the Council believes that the primary
purpose of the contract directory, i.e., to advertise existing
contracts available for multiple agency use, is better aligned with the
policies of FAR Part 5, which focus on publicizing contract actions.
One commenter suggested that FAR Parts 7 and 10 be revised to
identify the database's usefulness in acquisition planning and market
research. The FAR Council agrees with this suggestion and, as described
above, has amended Parts 7 and 10 to ensure contracting officers and
program managers consider information in the contract directory during
these important early stages of the acquisition cycle.
b. Burden. A number of comments focused on the potential burden the
rule and associated Web site instructions would place on agencies
required to input information about their interagency contracts into
the contract directory. The comments focused on
[[Page 43861]]
overall administrative burden, the mandatory nature of individual data
fields, and the time for entering data.
i. Overall administrative burden. Several commenters suggested that
entering the data described in the preamble to the proposed rule would
create an administrative strain. As an alternative, they recommended
that the desired information be collected through existing data
sources, such as the FPDS.
The FAR Council agrees, in concept, that the functionalities of
acquisition systems need to be integrated so that duplication of effort
and associated burden is minimized. As stated above, this is a key goal
of the ongoing IAE effort, the main acquisition initiative towards the
creation of a more efficient, effective, and citizen-centric e-
Government. Unfortunately, current information systems do not collect
the information needed to populate the contract directory. The FPDS,
for example, does not break out activity by multiple award contract
vehicle. As a result, it is not possible to easily identify the
multiple contractors who make up any given multi-agency contract.
The contract directory is designed to overcome these limitations
and enable agencies to gauge the number and nature of inter-agency
contracts currently in effect. This functionality will help senior
managers better understand their own agency's use of these vehicles.
Equally important, as noted above, the contract directory will help
customers during acquisition planning and market research to identify
whether there may be a suitable existing Federal contract that can
satisfy their needs.
For these reasons, the Council believes the insight to be gained by
the directory, by both customers and servicing agencies, will be worth
the effort required to make it fully operational. In addition, the
Council expects that the cost of input will be offset by the
interagency activity and associated administrative fees servicing
agencies will collect to cover costs.
ii. Mandatory vs. non-mandatory data fields. One commenter sought
clarification as to whether inputs for all of the data fields are
mandatory. Agencies will be expected to complete each of the 17 data
fields described above, except that, in providing point of contact
information (data field no. 17), an agency is not required to furnish
an individual point of contact and may rely just on an e-mail address
and/or phone number. Also, an agency is not required to create a Web
site with program information (i.e., data field no. 10); it is only
required to identify the address of the Web site, if one already
exists.
The contract directory, like other IAE projects, is designed to
minimize redundant effort. If information is already accessible
elsewhere on the Web, agencies generally will be able to simply provide
a Web address where users may access that information. For example, if
ordering procedures (field no. 14) and administrative fees (field no.
15) are already discussed on an agency's Web site, the contracting
officer need only provide the Web site address or URL to satisfy those
fields.
Recent General Accounting Office (GAO) and agency Inspectors
General (IG) reports confirm that customers of task and delivery order
contracts need to understand ordering procedures (e.g., fair
opportunity processes) and be aware of fees if they are to take
effective advantage of competition and make informed decisions. It is
especially important in an interagency environment that customers
external to the agency be aware of any special management steps a
servicing agency has taken to reinforce strategic and accountable use
of its vehicle. Accordingly, if information on ordering procedures or
administrative fees is not available on an existing Web site, agencies
will need to provide this information on the contract directory or
otherwise indicate how users may obtain it.
iii. Time for entering data. Two commenters raised concerns
regarding the time allotted for entering data. One commenter suggested
increasing the input period on new contracts from 10 to 45 days.
Another commenter proposed an exemption for existing contracts with
fewer than twelve months to expiration.
The Council believes that information needs to be entered as close
to the time of award as possible to make the directory as current and
useful as possible. Hence, the time for input on new contracts will
remain at 10 days. However, as discussed above, the FAR Council
recognizes that contracts relatively close to expiration may be nearing
or at ceiling limits. For this reason, the rule leaves to an agency's
discretion the determination as whether to input data on contracts that
will expire on or before June 1, 2004.
c. Functionality. Numerous comments addressed the planned
functionality for the database. Commenters focused, in particular, on
the descriptions to be provided for available products and services,
searching by individual contractor, information on order placement,
data on limited use vehicles, and information on 8(a) contracting.
i. Descriptions of products and services. Several commenters raised
concerns that the data field calling for a brief description of
supplies or services (i.e., data field no. 8) will not likely collect
sufficiently meaningful information for an agency to determine if use
of a given contract will meet its needs. They noted that the lack of
standard nomenclature may further reduce the utility of information
provided.
The FAR Council agrees that information placed in the database
needs to provide a general level of insight into contract offerings in
order for the contract directory to have a practical utility. As a
general matter, the Council expects that agencies will have an
incentive to exercise quality control and offer meaningful information
because the Web site offers a means for agencies to secure greater
visibility for, and use of, their vehicles. To assist agencies, the
site will provide guidance to address how best to fill in this, and
other, data fields. In addition, some degree of standardization will be
provided by asking for principal service and product codes (i.e., data
field no. 7). While this type of information should help agencies in
performing their front-end analysis, the Council recognizes that the
contract directory will not, by itself, provide information sufficient
for a complete analysis. At the same time, this is not the contract
directory's role. It is intended to be just one tool for market
research, and agencies will need to undertake additional efforts
commensurate with the size and complexity of the acquisition in order
to understand marketplace capabilities.
ii. Searching by contractor. A number of commenters requested that
the ``contractor'' data element (i.e., field no. 4) be searchable. The
FAR Council acknowledges that there may be some utility in knowing what
a contractor has offered through various vehicles with different
agencies. At the same time, the Council is concerned that searches by
contractor may, too often, conflict with the goal of encouraging
thoughtful consideration of the marketplace and capabilities of
multiple sources, as agencies consider whether their needs are better
met through an interagency contract or through a new procurement action
on the open market. Therefore, the contract directory will not provide
for searches by contractor.
Notwithstanding whether the data field is searchable, one commenter
suggested that contractor names be standardized in the contract
directory. The FAR Council agrees with the intent of the comment and
anticipates that the contract directory's integration with
[[Page 43862]]
other e-acquisition initiatives in the IAE will lead to this result
over time.
iii. Order placement. One commenter remarked that while the rule
provides benefit by laying the foundation for a new market research
tool, the overall effort is shortsighted because it fails to capture
any information regarding order placement. The commenter states that
``procurement goals of transparency and accountability are not served
when information about many millions of dollars spent under such
vehicles is not readily available to the public.''
The FAR Council strongly supports transparency and accountability
in Government procurement and anticipates that other IAE initiatives,
including the transformation of the FPDS, will facilitate greater
insight of the type alluded to by the commenter. However, the Councils
do not believe that the benefits of the contract directory should be
delayed until this functionality is available.
iv. Searching limited use vehicles. Two commenters recommended that
the contract directory include contracts available for use only to a
single agency, command or even locale. The FAR Council believes the
functionality of the directory should, at least initially, focus on
contracts that are designed for broad usage. Once the directory is
fully functional and is providing the desired insight, the Council may,
at a later date, consider expanding the database to accommodate limited
use contracts.
v. 8(a) contracting. One commenter suggested providing a greater
level of detail on the actual use and administration of 8(a) contracts.
The commenter recommended, for instance, that the contract directory
include information on how 8(a) contracting could be accomplished
(e.g., sole source), the competitive procedures to be used when the
task order exceeds the sole source threshold, agency administrative
responsibilities, and procedures regarding limitations on
subcontracting and reporting.
As noted above, the contract directory will offer basic socio-
economic information, including whether a contractor is an 8(a) small
business (see field no. 9). Moreover, information on ordering
procedures (provided through field no. 14) should reflect the steps
customers will be expected to take in order to make a purchase,
including those that may need to be taken to be in compliance with 8(a)
contracting procedures. However, additional detail on the specific
operation of the 8(a) program (or another socio-economic program) would
go beyond the general purpose and scope of the contract directory and
is more appropriately obtained though other means (e.g., from the
servicing agency, the Small Business Administration (SBA)).
d. Impact on small business. One commenter stated that the rule
would have a significant economic impact on a substantial number of
small entities. The commenter asserted that FAR 8.404, which sets forth
procedures for the use of FSS contracts, has had a ``withering effect''
on small business awards. The commenter further states that small
business set-asides should be incorporated into the FAR 8.404
procedures.
The Council believes this comment is outside of the scope of this
rule. The rule focuses on improving access to information about
vehicles available for interagency use. This rule does not speak to
specific practices for how these vehicles are to be used. However, the
Council notes that separate rulemaking efforts have been undertaken to
address the consideration of small businesses in order placement under
task and delivery order contracts. See 68 FR 5138, January 31, 2003,
for notice of proposed FAR changes, and 68 FR 5133, January 31, 2003,
for notice of proposed changes to SBA regulations. These separate
efforts are intended to address concerns regarding the impact of
contract bundling on small business participation for Federal
procurements.
B. Executive Order 12866.
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.
C. 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 establishment of an
online database as a tool to collect information on acquisition
vehicles intended for multiple agency use in order to facilitate its
availability to the acquisition community is a matter of internal
Government operating procedure. In addition, the rule is not intended
to alter existing requirements addressing the use of small businesses.
D. 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 5, 7, and 10
Government procurement.
Dated: July 16, 2003.
Laura Auletta,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 7, and 10 as set
forth below:
0
1. The authority citation for 48 CFR parts 5, 7, and 10 is revised to
read as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 5--PUBLICIZING CONTRACT ACTIONS
0
2. Add Subpart 5.6 to read as follows:
Subpart 5.6--Publicizing Multi-Agency Use Contracts
5.601 Governmentwide database of contracts.
(a) A Governmentwide database of contracts and other procurement
instruments intended for use by multiple agencies is available via the
Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov. This searchable database
is a tool that may be used to identify existing contracts and other
procurement instruments that may be used to fulfill Government needs.
(b) The contracting activity shall--
(1) Enter the information specified at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov
, in accordance with the instructions on that
Web site, within ten days of award of a Governmentwide acquisition
contract (GWAC), multi-agency contract, Federal Supply Schedule
contract, or any other procurement instrument intended for use by
multiple agencies, including blanket purchase agreements (BPAs) under
Federal Supply Schedule contracts.
(2) Enter the information specified at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov
in accordance with the instructions on that
Web site by October 31, 2003, for all contracts and other procurement
instruments intended for use by multiple agencies that were awarded
before July 24, 2003.
PART 7--ACQUISITION PLANNING
0
3. Amend section 7.105 by revising the second sentence of paragraph
(b)(1) to read as follows:
[[Page 43863]]
7.105 Contents of written acquisition plans.
* * * * *
(b) Plan of action--(1) Sources. * * * Consider required sources of
supplies or services (see Part 8) and sources identifiable through
databases including the Governmentwide database of contracts and other
procurement instruments intended for use by multiple agencies available
at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov. * * *
* * * * *
PART 10--MARKET RESEARCH
0
4. Amend section 10.002 by revising paragraph (b)(2)(iv) to read as
follows:
10.002 Procedures.
* * * * *
(b) * * *
(2) * * *
(iv) Querying the Governmentwide database of contracts and other
procurement instruments intended for use by multiple agencies available
at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.contractdirectory.gov and other Government databases that
provide information relevant to agency acquisitions.
* * * * *
[FR Doc. 03-18535 Filed 7-23-03; 8:45 am]