[Federal Register: June 14, 2011 (Volume 76, Number 114)]
[Proposed Rules]
[Page 34634-34635]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14jn11-17]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8, 9, and 52
[FAR Case 2009-024; Docket 2011-0086; Sequence 1]
RIN 9000-AM07
Federal Acquisition Regulation; Prioritizing Sources of Supplies
and Services for Use by the Government
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to limit the section of the FAR addressing
the priorities for use of Government supply sources to a discussion of
the mandatory Government sources of supplies and services. Also, a new
section is added to encourage agencies to give priority consideration
to using certain sources, despite the fact that the use of the listed
sources is not mandatory.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before August 15, 2011 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2009-024 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-024'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2009-024.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2009-024'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), Attn: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAR Case 2009-
024, 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. William Clark, Procurement
Analyst, at (202) 219-1813 for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAR Case 2009-
024.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR part 8. FAR part
8 requires Federal agencies to satisfy their requirements for supplies
and services from or through a list of sources in order of priority.
This proposed rule would amend FAR part 8 by revising FAR 8.000, 8.002,
8.003, and 8.004, eliminating outdated categories, and distinguishing
between Government sources (e.g., Federal Supply Schedules (FSS)) and
private-sector sources.
The impetus for this proposed rule is the Government Accountability
Office (GAO) decision in the protest of Murray-Benjamin Electric
Company, B-298481, 2006 CPD 129, September 7, 2006 at (http://
www.gao.gov/decisions/bidpro/298481.pdf). As a result of this GAO
decision, clarification was needed, in FAR part 8, on the use and
consideration of FSS contracts before commercial sources in the open
market.
The proposed rule amends FAR 8.002 as follows: The title is
revised, as appropriate, to indicate the section establishes the
priorities for mandatory Government sources. The term ``Mandatory
Federal Supply Schedules'' is removed. ``Optional Use Federal Supply
Schedules'' is re-named ``Federal Supply Schedules'' and is proposed to
be moved to a new section (FAR 8.004) as a non-mandatory source.
Commercial sources, currently listed under FAR 8.002(a), and Federal
Prison Industries, Inc., listed as a source for services at FAR
8.002(a)(2), would also be moved to the new section as non-mandatory
sources because neither one is a ``mandatory Government source.''
Additionally, the title at FAR 8.003 is amended to indicate that
the list is of mandatory sources, but recognize that they are not all
Government sources. Also, the word ``supplies'' would be deleted from
the title because these sources also provide services.
A new section, FAR 8.004, Use of other sources, is proposed to be
added to list non-mandatory sources that agencies are encouraged to
consider after first considering the mandatory sources listed at FAR
8.002 and 8.003. This section highlights existing contracts intended
for use by multiple agencies (e.g., Federal Supply Schedules,
Governmentwide acquisition contracts (GWACs), and multi-agency
contracts (MACs)) and ordering instruments intended for use by multiple
agencies, such as blanket purchase agreements (BPAs) under Federal
Supply Schedule contracts (e.g., Federal Strategic Sourcing Initiative
(FSSI) agreements). The existing contracts and instruments are not
listed in any order of priority, and separate paragraphs distinguish
supplies from services. When obtaining services, agencies are
encouraged to consider the same sources listed for supplies under FAR
8.004, with the addition of Federal Prison Industries, Inc. as another
non-mandatory source for services pursuant to FAR subpart 8.6. Agencies
would be encouraged to consider these sources before satisfying
requirements for supplies and services from commercial sources in the
open market. The proposed FAR 8.004 would also provide a cross-
reference to FAR 5.601, where the Web site for the Governmentwide
database of contracts and other procurement instruments intended for
use by multiple agencies via the Internet
[[Page 34635]]
at http://www.contractdirectory.gov is provided.
Conforming changes are proposed at FAR 9.405-1 to delete the words
``optional use''; and at FAR 52.208-9 to correct the cross-reference to
the clause prescription.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and
Review, dated September 30, 1993. This rule is not a major rule under 5
U.S.C. 804.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this 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 does not impose any additional requirements on small
businesses, but clarifies existing regulations, in FAR part 8, on the
use of existing mandatory and non-mandatory sources.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. DoD, GSA, and NASA invite comments from small business
concerns and other interested parties on the expected impact of this
rule on small entities.
DoD, GSA, and NASA will also consider comments from small entities
concerning the existing regulations in subparts affected by the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2009-024),
in correspondence.
IV. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 8, 9, and 52
Government procurement.
Dated: June 8, 2011.
Millisa Gary,
Acting Director, Federal Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 8, 9,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 8, 9, and 52 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).
2. Revise section 8.000 to read as follows:
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.000 Scope of part.
This part deals with prioritizing sources acquisition of supplies
and services for use by the Government.
3. Amend section 8.002 by--
a. Revising the section heading;
b. Removing from the introductory text of paragraph (a) ``sources''
and adding ``mandatory Government sources'' in its place;
c. Removing paragraphs (a)(1)(vi), (a)(1)(vii), and (a)(1)(viii);
and
d. Revising paragraph (a)(2).
The revised text reads as follows:
8.002 Priorities for use of mandatory Government sources.
(a) * * *
(2) Services. Services which are on the Procurement List maintained
by the Committee for Purchase From People Who Are Blind or Severely
Disabled (see subpart 8.7).
* * * * *
8.003 Use of other mandatory sources.
4. Amend section 8.003 by revising the section heading as set forth
above.
5. Redesignate section 8.004 as section 8.005 and add a new section
8.004 to read as follows:
8.004 Use of other sources.
Where an agency is unable to satisfy requirements for supplies and
services from the mandatory sources listed in 8.002 and 8.003, agencies
are encouraged to consider satisfying requirements from or through the
non-mandatory sources listed in paragraph (a) of this section before
considering the non-mandatory sources listed in paragraph (b) of this
section.
(a)(1) Supplies. Federal Supply Schedules, Governmentwide
acquisition contracts, multi-agency contracts, and any other
procurement instruments intended for use by multiple agencies,
including blanket purchase agreements (BPAs) under Federal Supply
Schedule contracts (e.g., Federal Strategic Sourcing Initiative (FSSI)
agreements accessible at http://www.gsa.gov/fssi (see also 5.601)).
(2) Services. In addition to the sources listed in paragraph (a)(1)
of this section, agencies are encouraged to consider Federal Prison
Industries, Inc. (see subpart 8.6).
(b) Commercial sources (including educational and non-profit
institutions) in the open market.
8.402 [Amended]
6. Amend section 8.402 by removing from paragraph (a) ``(see
8.002)'' and adding ``(see 8.004)'' in its place.
PART 9--CONTRACTOR QUALIFICATIONS
9.405-1 [Amended]
7. Amend section 9.405-1 by removing from paragraph (b)(2)
``optional use''.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.208-9 [Amended]
8. Amend section 52.208-9 by removing from the introductory
paragraph ``8.004'' and adding ``8.005'' in its place.
[FR Doc. 2011-14650 Filed 6-13-11; 8:45 am]
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