[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Rules and Regulations]
[Pages 44062-44063]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-17730]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005-60; FAR Case 2012-007; Item III; Docket 2012-0007, Sequence
1]
RIN 9000-AM26
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.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement sections of the Ike
Skelton National Defense Authorization Act for Fiscal Year 2011, and
the National Defense Authorization Act for Fiscal Year 2012. These
statutes extend the sunset date for protests against the award of task
or delivery orders from May 27, 2011, to September 30, 2016.
DATES: Effective date: July 26, 2012.
Comment date: Interested parties should submit written comments to
the Regulatory Secretariat on or before September 24, 2012 to be
considered in the formation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-60, FAR Case 2012-
007, by any of the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2012-007''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2012-007.'' Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2012-007'' 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 FAC 2005-60, FAR
Case 2012-007, 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 2005-60, FAR Case 2012-
012.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 76 FR 39238 on July 5, 2011, entitled ``Extension of Sunset
Date for Protests of Task and Delivery Orders'' (FAC 2005-53, FAR Case
2011-015). The rule implemented section 825 of the Ike Skelton National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011 (Pub. L.
111-383, enacted January 7, 2011). The rule extended the sunset date
for protests of task and delivery orders valued in excess of $10
million for Title 10 agencies, namely DoD, NASA, and the Coast Guard.
The rule did not extend the sunset date for Title 41 agencies as there
was no comparable change to Title 41 at that time.
Subsequent to the publication of the interim rule under FAR Case
2011-015, section 813 of the NDAA for FY 2012 (Pub. L. 112-81, enacted
December 31, 2011) made comparable changes to Title 41 to extend the
sunset date for protests against the award of task and delivery orders
from May 27, 2011, to September 30, 2016. In order to accomplish the
statutory changes for both Title 10 and Title 41, FAR Case 2011-015 is
not being issued as a final rule and is instead being renumbered and
incorporated into this second interim rule, FAR Case 2012-007.
II. Discussion and Analysis
A. Summary of Significant Changes
FAR 16.505(a)(10)(ii) is amended to extend, for Title 41 agencies,
the authority to protest the placement of task and delivery orders
valued in excess of $10 million from May 27, 2011, to September 30,
2016.
B. Analysis of Public Comment
One public comment was received for FAR Case 2011-015. The public
comment and response are provided as follows:
Comment on FAR Case 2011-015: The respondent indicated that the
sunset date for protest of orders should extend to Title 41 agencies,
not just Title 10 agencies.
Response: The rule has been changed to incorporate and implement
the later-enacted section 813 of the NDAA for FY 2012 to extend the
sunset date for the protest of task and delivery orders from May 27,
2011, to September 30, 2016, for Title 41 agencies.
III. 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.
[[Page 44063]]
IV. 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:
The objective of this rule is to implement section 825 of the
NDAA for FY 2011, which extended the sunset date for Title 10
agencies and section 813 of the NDAA for FY 2012, which extended the
sunset date for Title 41 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
Government Accountability Office (GAO). GAO has 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; therefore estimates are based on the total number
of protests filed at the GAO in FYs 2009, 2010 and 2011. The data
was extracted from GAO's report to the Congress for those fiscal
years.
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 6,700 (see below):
Fiscal Year 2009 protests to GAO............................. 2,000
Fiscal Year 2010 protests to GAO............................. 2,300
Fiscal Year 2011 protests to GAO............................. 2,400
----------
6,700
Divided by 3
Average annual GAO protests 2,233
Multiplied by 2
----------
Estimated total number of protests....................... 4,467
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 1,117. 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 559.
protests of task/delivery orders by small 559
businesses..................................................
% of protests sustained...................................... x .03
----------
of task/delivery orders protests sustained......... 17
The number 17 represents the number of small business task or
delivery order protests sustained in a fiscal year. This number is
representative of protests against awards by all Government
agencies.
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 Regulatory Secretariat will be submitting a copy of the Initial
Regulatory Flexibility Analysis (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 subparts 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 2005-60, FAR Case
2012-007) in correspondence.
V. 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).
VI. 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 statutory authority for Title 41 offerors to file
certain bid protests lapsed May 27, 2011, but was reinstated in the
National Defense Authorization Act for Fiscal Year 2012, effective
December 31, 2011. Similar authority for Title 10 offerors was extended
by a January 7, 2011, statute, and has already been implemented in the
FAR. If this rule is not published on an interim basis, offerors could
be misinformed about their legal right to file certain protests.
Disappointed Title 41 offerors would be unclear on whether to file bid
protests of civilian agency task and delivery order awards at either
the GAO or the Court of Federal Claims. This interim rule clarifies
that GAO has exclusive jurisdiction of a protest of an order valued in
excess of $10 million. 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: July 16, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as follows:
PART 16--TYPES OF CONTRACT
0
1. The authority citation for 48 CFR part 16 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
0
2. Amend section 16.505 by removing from paragraph (a)(10)(i)
introductory text ``under Subpart 33.1'' and adding ``under subpart
33.1'' in its place; and revising paragraph (a)(10)(ii) to read as
follows:
16.505 Ordering.
(a) * * *
(10) * * *
(ii) The authority to protest the placement of an order under
(a)(10)(i)(B) of this section expires on September 30, 2016 (10 U.S.C.
2304a(d), 10 U.S.C. 2304c(e), 41 U.S.C. 4103(d), and 41 U.S.C.
4106(f)).
* * * * *
[FR Doc. 2012-17730 Filed 7-25-12; 8:45 am]
BILLING CODE 6820-EP-P