[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Rules and Regulations]
[Pages 6187-6188]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-01747]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 16
[FAC 2005-65; FAR Case 2012-007; Item II; 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: Final rule.
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SUMMARY: DoD, GSA, and NASA are adopting as final, without change, 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: January 29, 2013.
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 2005-65, FAR Case 2012-
007.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA originally 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 was
not issued as a final rule and was instead incorporated into an interim
rule under FAR Case 2012-007.
DoD, GSA, and NASA published an interim rule in the Federal
Register at 77 FR 44062 on July 26, 2012, entitled ``Extension of
Sunset Date for Protests of Task and Delivery Orders'' (FAC 2005-60,
FAR Case 2012-007). 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) and section 813 of the NDAA
for FY 2012 (Pub. L. 112-81, enacted December 31, 2011). The rule
extended the sunset date for protests of task and delivery orders
valued in excess of $10 million from May 27, 2011, to September 30,
2016.
II. Discussion and Analysis
No public comments were received; therefore the Defense Acquisition
Regulations Council and the Civilian Agency Acquisition Council are
finalizing the interim rule without change.
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
[[Page 6188]]
flexibility. The Office of Information and Regulatory Affairs (OIRA)
has deemed that 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, and that this
rule is not a major rule under 5 U.S.C. 804.
IV. Regulatory Flexibility Act
The changes 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 Final Regulatory Flexibility
Analysis (FRFA) is summarized as follows.
This rule implements section 825 of the NDAA for FY 2011 and
section 813 of the NDAA for FY 2012, which extended the sunset date
for protests of task and delivery orders valued in excess of $10
million from May 27, 2011, to September 30, 2016.
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 are 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.
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 4,466 (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
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6,700
Divided by...................................................... 3
Average annual GAO protests..................................... 2,233
Multiplied by................................................... 2
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Per Fiscal Year; Estimated total number of protests............. 4,466
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 businesses.. 559
% of protests sustained......................................... x .03
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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.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy
of the FRFA to the Chief Counsel for Advocacy of the Small Business
Administration.
V. Paperwork Reduction Act
The final 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 Part 16
Government procurement.
Dated: January 23, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR part 16, which was
published in the Federal Register at 77 FR 44062 on July 26, 2012,
(which incorporated an interim rule published in the Federal Register
at 76 FR 39238 on July 5, 2011), is adopted as final without change.
[FR Doc. 2013-01747 Filed 1-28-13; 8:45 am]
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