[Federal Register Volume 66, Number 85 (Wednesday, May 2, 2001)]
[Rules and Regulations]
[Pages 22084-22085]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-11009]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 39

[FAC 97-25; FAR Case 2000-609; Item II]
RIN 9000-AJ11


Federal Acquisition Regulation; Contractor Personnel in the 
Procurement of Information Technology Services

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 
Section 813 of the Floyd D. Spence National Defense Authorization Act 
for Fiscal Year 2001. The Act requires that the FAR be amended to 
address the use, in the procurement of information technology services, 
of requirements regarding the experience and education of contractor 
personnel.

DATES: Effective Date: May 2, 2001.
    Comment Date: Interested parties should submit comments to the FAR 
Secretariat at the address shown below on or before July 2, 2001 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, Attn: Ms. Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.2000-609@gsa.gov.
    Please submit comments only and cite FAC 97-25, FAR case 2000-609 
in all correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 97-25, FAR case 2000-609.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule amends the FAR to implement Section 813 of the 
Floyd D. Spence National Defense Authorization Act for Fiscal Year 2001 
(Public Law 106-398). The Act prohibits the use of minimum experience 
or education requirements for contractor personnel in solicitations for 
the acquisition of information technology services, unless--
    1. The contracting officer first determines that the needs of the 
agency cannot be met without such requirement; or
    2. The needs of the agency require the use of a type of contract 
other than a performance-based contract.
     This interim rule implements the Act by adding a new section to 
Subpart 39.1 to implement Section 813 of the Act.
    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 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., because it will make it easier 
for them to hire employees to work on information technology service 
contracts, as well as increase their business opportunities in 
obtaining Government contracts. Therefore, we have prepared an Initial 
Regulatory Flexibility Analysis that is summarized as follows:

    The interim rule amends FAR Part 39 to implement Section 813 of 
the Floyd D. Spence National Defense Authorization Act for Fiscal 
Year 2001 (Public Law 106-398). The Act requires that the Federal 
Acquisition Regulation be revised to address the use, in the 
procurement of information technology services, of requirements 
regarding the experience and education of contractor personnel. The 
rule prohibits the use of minimum experience or education 
requirements for contractor personnel in solicitations for the 
acquisition of information technology services, unless the 
contracting officer first determines the needs of the agency cannot 
be met without that requirement; or the needs of the agency require 
the use of a type of contract other than a performance-based 
contract. The interim rule will apply to all large and small 
entities that seek award of Federal information service contracts. 
The rule should have a positive economic impact on small businesses 
because it will make it easier for them to hire employees to work on 
information technology service contracts, as well as increase their 
business opportunities in obtaining Federal contracts.

    The FAR Secretariat has submitted a copy of the IRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. Interested 
parties may obtain a copy from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR Part 
39 in accordance with 5 U.S.C. 610. Submit such comments separately and 
cite 5 U.S.C. 601, et seq. (FAC 97-25, FAR case 2000-609), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the 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.

D. 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 in order to implement section 813 of the Floyd D. Spence 
National Defense Authorization Act for Fiscal Year 2001 (Public Law 
106-398). The Act requires that the FAR be amended within 180 days of 
enactment; enactment was on October 30, 2000. However, pursuant to 
Public Law 98-577 and FAR 1.501, the Councils 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 39

    Government procurement.

    Dated: April 27, 2001.
Al Matera,
Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 39 as set forth 
below:

PART 39--ACQUISITION OF INFORMATION TECHNOLOGY

    1. The authority citation for 48 CFR part 39 continues to read as 
follows:


[[Page 22085]]


    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).


    2. Add Sec. 39.104 to read as follows:


39.104  Information technology services.

    When acquiring information technology services, solicitations must 
not describe any minimum experience or educational requirement for 
proposed contractor personnel unless the contracting officer determines 
that the needs of the agency--
    (a) Cannot be met without that requirement; or
    (b) Require the use of other than a performance-based contract (see 
subpart 37.6).

[FR Doc. 01-11009 Filed 5-1-01; 8:45 am]
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