[Federal Register: July 5, 2011 (Volume 76, Number 128)]
[Rules and Regulations]
[Page 39238-39240]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr05jy11-18]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005-53; FAR Case 2011-015; Item IV; Docket 2011-0015, Sequence 1]
RIN 9000-AM08
Federal Acquisition Regulation; Extension of Sunset Date for
Protests of Task and Delivery Orders
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement section 825 of the
Ike Skelton National Defense Authorization Act for Fiscal Year 2011.
The statute extends the sunset date for protests against the award of
task or delivery orders by DoD, NASA, and the Coast Guard from May 27,
2011, to September 30, 2016.
DATES: Effective Date: July 5, 2011.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before September 6, 2011 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-53, FAR Case 2011-
015, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2011-015'' under the heading ``Enter Keyword or ID'' and selecting
``Search.'' Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2011-015.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2011-015'' on your attached document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), Attn: Hada Flowers, 1275 First
[[Page 39239]]
Street, NE., 7th Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-53, FAR
Case 2011-015, 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: Ms. Deborah Lague, Procurement
Analyst, at (202) 694-8149, for clarification of content. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2010-53, FAR
Case 2011-015.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are publishing this interim rule amending the
FAR to implement section 825 of the Ike Skelton National Defense
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383, enacted
January 7, 2011). Section 825 amends 10 U.S.C. 2304c(e) to extend the
sunset date for protests against the award of task and delivery orders
from May 27, 2011, to September 30, 2016, but only for Title 10
agencies, i.e., DoD, NASA, and the Coast Guard. There has been no
comparable change to Title 41, so the sunset date for protests against
the award of task and delivery orders by other agencies remains May 27,
2011. With this change, contractors will no longer be able to protest
task or delivery orders awarded by agencies other than DoD, NASA, and
the Coast Guard. There is no effect on Government automated systems.
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 not a significant regulatory action and, therefore, was not
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
The change may 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.. The Initial Regulatory
Flexibility Analysis (IRFA) is summarized as follows:
This rule was initiated to implement section 825 of the Ike
Skelton National Defense Authorization Act for Fiscal Year 2011
(Pub. L. 111-383), enacted January 7, 2011. Section 825 amends 10
U.S.C. 2304c(e) to extend the sunset date for protests against the
award of task or delivery orders by DoD, NASA, and the Coast Guard
from May 27, 2011, to September 30, 2016.
Prior to the National Defense Authorization Act for Fiscal Year
2008, there was no authority for protests against the award of task
or delivery orders under indefinite-delivery contracts. That
statute, however, amended Titles 10 and 41 to allow protests against
the award, or proposed award, of a task or delivery order by any
Federal agency if (a) the protest is on the grounds that the order
increases the scope, period, or maximum value of the contract, or
(b) the order is valued at over $10 million.
This protest authority has been in effect for the past 2\1/2\
years. Section 825 extended the sunset date for Title 10 agencies
(DoD, NASA, and the Coast Guard). However, there has not been a
similar change to the Title 41 authority, so the sunset date remains
May 27, 2011, for all other agencies.
The authority to file protests against the award of task or
delivery orders is relatively new, and there is little data
available, as such protests may be filed with the agency or General
Accountability Office (GAO). Section 843 of Pub. L. 110-181 gave the
Comptroller General of the United States the exclusive jurisdiction
of a protest of an order valued in excess of $10 million. Data on
agency-level protests is not compiled outside the agency concerned,
so we had to base our estimate on the total number of protests filed
at the GAO in Fiscal Years 2009 and 2010. The data was extracted
from GAO's latest report to the Congress. Only Fiscal Years 2009 and
2010 protest numbers were used because the authority to protest
against task or delivery orders did not exist prior to that time.
Offerors can protest to the agency or to the GAO. Assuming that
one-half of all protests are filed with the GAO and the other half
are filed with the agency, then the average number of protests filed
per fiscal year would be 4,300 (see below):
[GRAPHIC] [TIFF OMITTED] TR05JY11.011
Protests may be filed against the award of contracts as well as
certain task or delivery orders. There are few prohibitions on the
grounds for protests against the award of a contract. However,
protests against the award of a task or delivery order are limited
to (a) a protest on the grounds that the order increases the scope,
period, or maximum value of the contract; or (b) a protest of an
order valued in excess of $10 million. Therefore, it is reasonable
to assume that less than 50 percent of the total number of protests
filed is against the award of a task or delivery order. A generous
estimate is approximately one-fourth, or 1,075. Likewise, only a
percentage of the protests against the award of a task or delivery
order are made by small businesses. Even if we assume that
percentage to be one-half, then the number of protests filed by
small businesses against the award of a task or delivery order is
estimated to be 539.
[GRAPHIC] [TIFF OMITTED] TR05JY11.012
The number 16 represents the number of small business task or
delivery order protests sustained in a fiscal year. However, this
number is representative of protests against awards by all
Government agencies, not just DoD, NASA, and the Coast Guard. If the
[[Page 39240]]
assumption is made that half of the protests sustained are on DoD,
NASA, or Coast Guard task or delivery orders, then it can be
estimated that extending the sunset date for protests against task
or delivery order awards by Title 10 agencies will result in an
additional 8 awards to small businesses per fiscal year that the
protest authority remains in effect.
There is no requirement for small entities to submit any
information under this provision. Therefore, no professional skills
are necessary on the part of small entities for compliance, and the
cost to small entities associated with this provision is $0.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
There are no practical alternatives that will accomplish the
objectives of the interim rule, i.e., implementation of a statutory
mandate.
The Regulatory Secretariat has submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small Business Administration. A copy
of the IRFA may be obtained from the Regulatory Secretariat. 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 the subpart 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 (FAC 2005-53, FAR
Case 2011-015) in correspondence.
IV. Paperwork Reduction Act
The interim 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).
V. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Ike Skelton National Defense Authorization Act
for Fiscal Year 2011 (Pub. L. 111-383) was enacted on January 7, 2011,
and requires the extension of the sunset date for the affected agencies
to be published in the FAR prior to the expiration of the previous
sunset date, May 27, 2011. However, pursuant to 41 U.S.C. 1707 and FAR
1.501-3(b), DoD, GSA, and NASA 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 16
Government procurement.
Dated: June 28, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as set forth
below:
PART 16--TYPES OF CONTRACTS
0
1. The authority citation for 48 CFR part 16 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).
0
2. Amend section 16.505 by revising paragraph (a)(9)(ii) to read as
follows:
16.505 Ordering.
* * * * *
(a) * * *
(9) * * *
(ii) The authority to protest the placement of an order under this
subpart expires on September 30, 2016, for DoD, NASA and the Coast
Guard (10 U.S.C. 2304a(d) and 2304c(e)), and on May 27, 2011, for other
agencies (41 U.S.C. 4103(d) and 4106(f)).
* * * * *
[FR Doc. 2011-16675 Filed 7-1-11; 8:45 am]
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