[Federal Register: October 31, 2007 (Volume 72, Number 210)]
[Proposed Rules]
[Page 61603-61605]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31oc07-34]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 7, 8, 12, and 39
[FAR Case 2005-014; Docket 2007-0001; Sequence 9]
RIN 9000-AK83
Federal Acquisition Regulation; FAR Case 2005-014, SmartBUY
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are proposing to amend the
Federal Acquisition Regulation (FAR) to implement the Governmentwide
Enterprise Software Licensing Program,
[[Page 61604]]
also known as SmartBUY. This action is necessary to comply with Office
of Management and Budget Memorandum M-04-08, Maximizing Use of SmartBuy
and Avoiding Duplication of Agency Activities with the President's 24
E-Gov Initiatives, dated February 25, 2004. By leveraging the Federal
Government Enterprise Software Licensing Program, the Government will
achieve the maximum cost savings and favorable terms and conditions for
acquiring software and software maintenance. This rule impacts
contracting officers and other acquisition officials responsible for
reviewing the terms, conditions, and prices for the acquisition of
commercial software and software maintenance.
DATES: Interested parties should submit written comments to the FAR
Secretariat on or before December 31, 2007 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2005-014, by any of
the following methods:
Federal eRulemaking Portal: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
To search for any document, first select under ``Step 1,''
``Documents with an Open Comment Period'' and select under ``Optional
Step 2,'' ``Federal Acquisition Regulation'' as the agency of choice.
Under ``Optional Step 3,'' select ``Proposed Rules''. Under ``Optional
Step 4,'' from the drop down list, select ``Document Title'' and type
the FAR case number ``2005-014''. Click the ``Submit'' button. Please
include your name and company name (if any) inside the document. You
may also search for any document by clicking on the ``Search for
Documents'' tab at the top of the screen. Select from the agency field
``Federal Acquisition Regulation'', and type ``2005-014'' in the
``Document Title'' field. Select the ``Submit'' button.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2005-
014, in all correspondence related to this case. All comments received
will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT Ms. Jeritta Parnell, Procurement
Analyst, at (202) 501-4082 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2005-014.
SUPPLEMENTARY INFORMATION:
A. Background
Pursuant to Section 5112 of the Clinger-Cohen Act of 1996 (40
U.S.C. 11302), the Office of Management and Budget (OMB) is responsible
for improving the acquisition and use of information technology (IT) by
the Federal Government and designating Executive Agents for
Governmentwide acquisitions of IT. To ensure that the Federal
Government is maximizing its buying power to achieve the cost savings
and favorable terms and conditions for commercial software, OMB created
the SmartBUY initiative. GSA is designated as the Executive Agent for
the SmartBUY initiative.
This rule proposes to amend the FAR to ensure SmartBUY is
considered during acquisition planning, and prescribes the policies and
procedures for using SmartBUY enterprise agreements.
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 Councils do not expect this proposed rule 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 the rule applies to commercial agreements under the SmartBUY
Program that are based on existing negotiated contracts. These
agreements direct contracting officers to consider established
contracting vehicles. Small businesses have participated in the
SmartBuy Program to date. In fact, three of the six existing agreements
are with small businesses.
An Initial Regulatory Flexibility Analysis has, therefore, not been
performed. We invite comments from small businesses and other
interested parties. The Councils will consider comments from small
entities concerning the affected FAR Part 7, 8, 12, and 39 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. (FAR case
2005-014), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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 7, 8, 12, and 39
Government procurement.
Dated: October 22, 2007.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 7, 8,
12, and 39 as set forth below:
1. The authority citation for 48 CFR parts 7, 8, 12, and 39
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).
PART 7--ACQUISITION PLANNING
2. Amend section 7.103 by adding paragraph (v) to read as follows:
7.103 Agency-head responsibilities.
* * * * *
(v) Ensuring that agency planners fulfill requirements for
commercial software or related services, such as software maintenance,
in accordance with the SmartBUY program (see FAR Subpart 8.9).
3. Amend section 7.105 by adding paragraph (b)(4)(ii)(B)(3) to read
as follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(4) * * *
(ii) * * *
(B) * * *
(3) Ordering through a SmartBUY agreement leverages Government user
volume and achieves a substantial price discount.
* * * * *
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
4. Add subpart 8.9 to read as follows:
Subpart 8.9--Acquisition of Commercial Software
Sec.
8.900 Scope of subpart.
8.901 Definitions.
8.902 General.
8.903 Policy.
8.904 Acquisition procedures.
8.905 Approval and Notification.
8.900 Scope of subpart.
This subpart prescribes the policies and procedures for acquisition
of commercial software or related services, such as software
maintenance, through
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the Governmentwide Enterprise Software Program, also known as SmartBUY.
8.901 Definitions.
As used in this subpart--
Enterprise software agreement (ESA) means an agreement established
for agencies to use to acquire designated commercial software or
related services, such as software maintenance.
Software maintenance means activities performed and/or services
provided by the original equipment manufacturer (OEM) as standard
services to keep software functioning to the commercial specification,
at established catalog or market prices, e.g., the right to receive and
use upgraded versions of software, updates, and revisions.
Software product manager means the Government official who manages
an enterprise software agreement.
8.902 General.
SmartBUY is a consolidated purchasing program for the acquisition
of commercial software or related services, such as software
maintenance. SmartBUY is designed to provide all agencies, regardless
of their size, the greatest price discounts available to the Federal
Government. The SmartBUY Software Program (see website at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gsa.gov/smartbuy
) promotes the use of Enterprise Software
Agreements (ESAs) with contractors, called SmartBUY agreements, that
allow the Government to obtain favorable terms and pricing for
commercial software or related services, such as software maintenance.
8.903 Policy.
Prior to issuing contracts for commercial software or related
services, such as software maintenance, agencies shall review the
SmartBUY agreements at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.gsa.gov/smartbuy or http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.esi.mil.
Federal agencies shall place an order to fulfill
requirements for commercial software or related services, such as
software maintenance, when a SmartBUY agreement is available and is
applicable to the agency's requirement and volume.
8.904 Acquisition procedures.
(a) The contracting officer or other ordering official must review
the terms, conditions, and prices using market research or other
procurement practices to determine if commercial software or related
services, such as software maintenance, is available through a SmartBUY
agreement.
(b) When the terms, conditions, and prices represent a best value
to the Government, the contracting officer or other ordering official
shall place an order to fulfill the requirement for commercial software
or related services, such as software maintenance, through a SmartBUY
agreement.
(c) When an existing SmartBUY agreement does not represent the best
value to the Government, the contracting officer or other ordering
official should allow the contractor an opportunity to provide the same
or a better value under the SmartBUY agreement before using alternate
procurement methods. In such cases, the contracting officer or other
ordering official should notify the SmartBUY program office Software
Product Manager of specific concerns, so that the SPM can take action
to potentially improve an existing SmartBUY agreement's terms,
conditions or prices through the SmartBUY website.
(d) When an available SmartBUY agreement will not be used, the
contracting officer or other ordering official must comply with the
approval and notification procedures in 8.905.
(e) When the required commercial software or related services, such
as software maintenance, is no[0]t covered by a SmartBUY agreement, the
contracting officer may fulfill a requirement using other procurement
methods.
8.905 Approval and Notification.
(a) The contracting officer or ordering official must get approval
from the agency Senior Procurement Executive and the agency Chief
Information Officer, or as provided by agency procedures, when not
using an available SmartBUY agreement. The approval shall--
(1) Describe the agency's requirement;
(2) Explain the reason for not using an existing SmartBUY
agreement; and
(3) Describe how the agency will satisfy its needs for commercial
software and negotiate a fair and reasonable price.
(b) The contracting officer or ordering official must notify GSA
when an available SmartBUY agreement is not used to acquire commercial
software or related services, such as software maintenance, by sending
a copy of the approval to GSA at-- General Services Administration,
Deputy Associate Administrator, Office of Technology Strategy (ME),
1800 F Street, NW, Washington, DC 20406; or send via e-mail to
SmartBUYwaiver@gsa.gov.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
5. Amend section 12.212 by adding paragraph (c) to read as follows:
12.212 Computer software.
* * * * *
(c) Acquisition officials shall consider using SmartBUY Enterprise
Software Agreements when acquiring commercial software or related
services, such as software maintenance (see FAR Subpart 8.9).
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
6. Amend section 39.101 by revising paragraph (b) to read as
follows:
39.101 Policy.
* * * * *
(b)(1) In acquiring information technology, agencies shall identify
their requirements pursuant to--
(i) OMB Circular A-130, including consideration of security of
resources, protection of privacy, national security and emergency
preparedness, accommodations for individual with disabilities, and
energy efficiency; and
(ii) FAR 8.903 and the availability of a SmartBUY Agreement.
(2) When developing an acquisition strategy, contracting officers
should consider the rapidly changing nature of information technology
through market research (see Part 10) and the application of technology
refreshment techniques.
* * * * *
[FR Doc. 07-5405 Filed 10-30-07; 8:45 am]
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