[Federal Register Volume 67, Number 169 (Friday, August 30, 2002)]
[Rules and Regulations]
[Pages 56117-56120]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-21867]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 7, 8, 16, 17, and 52

[FAC 2001-09; FAR Case 1999-303; Item I]
RIN 9000-AI72


Federal Acquisition Regulation; Task-Order and Delivery-Order 
Contracts

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

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to further implement 
subsections 804(a) and (b) of the National Defense Authorization Act 
for Fiscal Year 2000. These subsections focus primarily on appropriate 
use of task-order and delivery-order contracts and specific steps 
agencies should take when placing orders under task-order and delivery-
order contracts established by another agency. The rule also clarifies 
that written acquisition plans may be required for orders as determined 
by the agency head.

DATES: Effective Date: September 30, 2002.

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. Julia Wise, Procurement Analyst, at (202) 208-
1168. Please cite FAC 2001-09, FAR case 1999-303.

SUPPLEMENTARY INFORMATION:

A. Background

    The Councils published a final rule, FAR case 1999-014, Competition 
Under Multiple Award Contracts, in the Federal Register at 65 FR 24317, 
April 25, 2000, to clarify what contracting officers should consider 
when planning for multiple awards of indefinite-delivery contracts, and 
clarify how orders should be placed against the resultant contracts. 
That rule implemented portions of subsections 804(a) and (b) of the 
National Defense Authorization Act for Fiscal Year 2000. This rule 
further strengthens that policy and the implementation of subsections 
804(a) and (b) of the National Defense Authorization Act for Fiscal 
Year 2000 in several ways.
    With respect to acquisition planning, the rule draws greater 
attention to the capital planning requirements of the Clinger-Cohen Act 
(40 U.S.C. 1422) and ensures more deliberation by agency acquisition 
planners before orders are placed under a Federal Supply Schedule 
contract; or task-order contract or delivery-order contract awarded by 
another agency, (i.e., Governmentwide acquisition contract or multi-
agency contract). The Councils are continuing to review the agency 
acquisition planning practices of customers of interagency contracts to 
determine if additional guidance is needed to ensure strategic use of 
these vehicles.
    With respect to the structuring of orders and the consideration 
given to contract holders prior to order placement, the rule (1) 
increases attention to modular contracting principles to help agencies 
avoid unnecessarily large and inadequately defined orders, (2) 
facilitates information exchange during the fair opportunity process so 
that contractors may develop and propose solutions that enable the 
Government to award performance-based orders, and (3) revises existing 
documentation requirements to address tradeoff decisions as well as the 
issuance of sole-source orders as logical follow-ons to orders already 
issued under the contract.
    This rule also adds to the FAR a separate definition for the terms 
``Governmentwide acquisition contract (GWAC)'' and ``Multi-agency 
contract (MAC)'' to clarify the difference between the terms and the 
purpose of each contract vehicle.
    A proposed rule was published in the Federal Register at 66 FR 
44518, August 23, 2001. Four sources submitted comments in response to 
the proposed rule. This final rule includes a change based on some of 
the comments received. Substantive public comments addressed the need 
for additional clarification pertaining to the application of the 
Economy Act within the proposed definition of multi-agency contract. 
The definition states that supplies and services would be obtained 
``consistent with'' the Economy Act. The Councils agreed that 
clarification was needed. Accordingly, the definition of multi-agency 
contract was amended by adding a reference to FAR 17.500(b), which 
expressly provides that the Economy Act is not applicable if an 
interagency acquisition is authorized under a more specific statutory

[[Page 56118]]

authority. In other words, use of more specific authority, if it 
exists, would still be ``consistent with'' the Economy 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 Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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 makes various 
changes to improve the use of task-order contracts and delivery-order 
contracts. The primary focus is on usage of these contracts where 
multiple awards are made and where the contracts are being used to 
support inter-agency transactions. Some aspects of the final rule 
(e.g., planning, documentation) largely address the internal operating 
procedures of Government agencies. The changes that affect small 
entities should have a slight positive effect by, among other things, 
strengthening use of the fair opportunity process to ensure small 
entities are appropriately being given opportunities to pursue business 
opportunities under multiple award task-order and delivery-order 
contracts. The rule further acknowledges that access to small business 
concerns is an appropriate factor for an agency to consider as part of 
its acquisition planning prior to placing an order under a contract 
awarded by another agency.
    We did not receive any comments regarding this determination as a 
result of publication of the proposed rule in the Federal Register at 
66 FR 44518, August 23, 2001.

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.

List of Subjects in 48 CFR Parts 2, 7, 8, 16, 17, and 52

    Government procurement.

    Dated: August 21, 2002.
Al Matera,
Director, Acquisition Policy Division.


    Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 7, 8, 16, 17, 
and 52 as set forth below:
    1. The authority citation for 48 CFR parts 2, 7, 8, 16, 17, and 52 
continues to read as follows:

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

PART 2--DEFINITIONS OF WORDS AND TERMS

    2. Amend section 2.101 by adding, in alphabetical order, the 
definitions ``Governmentwide acquisition contract (GWAC)'' and ``Multi-
agency contract (MAC)'' to read as follows:


2.101  Definitions.

* * * * *
    Governmentwide acquisition contract (GWAC) means a task-order or 
delivery-order contract for information technology established by one 
agency for Governmentwide use that is operated--
    (1) By an executive agent designated by the Office of Management 
and Budget pursuant to section 5112(e) of the Clinger-Cohen Act, 40 
U.S.C. 1412(e); or
    (2) Under a delegation of procurement authority issued by the 
General Services Administration (GSA) prior to August 7, 1996, under 
authority granted GSA by the Brooks Act, 40 U.S.C. 759 (repealed by 
Public Law 104-106). The Economy Act does not apply to orders under a 
Governmentwide acquisition contract.
* * * * *
    Multi-agency contract (MAC) means a task-order or delivery-order 
contract established by one agency for use by Government agencies to 
obtain supplies and services, consistent with the Economy Act (see 
17.500(b)). Multi-agency contracts include contracts for information 
technology established pursuant to section 5124(a)(2) of the Clinger-
Cohen Act, 40 U.S.C. 1424(a)(2).
* * * * *

PART 7--ACQUISITION PLANNING

    3. Amend section 7.101 by adding, in alphabetical order, the 
definition ``Order'' to read as follows:


7.101  Definitions.

* * * * *
    Order means an order placed under a--
    (1) Federal Supply Schedule contract; or
    (2) Task-order contract or delivery-order contract awarded by 
another agency, (i.e., Governmentwide acquisition contract or multi-
agency contract).
* * * * *

    4. Amend section 7.103 by revising paragraphs (e) and (q); and 
adding paragraph (t) to read as follows:


7.103  Agency-head responsibilities.

* * * * *
    (e) Writing plans either on a systems basis, on an individual 
contract basis, or on an individual order basis, depending upon the 
acquisition.
* * * * *
    (q) Ensuring that no purchase request is initiated or contract 
entered into that would result in the performance of an inherently 
governmental function by a contractor and that all contracts or orders 
are adequately managed so as to ensure effective official control over 
contract or order performance.
* * * * *
    (t) Ensuring that agency planners on information technology 
acquisitions comply with the capital planning and investment control 
requirements in 40 U.S.C. 1422 and OMB Circular A-130.

    5. Amend section 7.104 by revising the first sentence of paragraph 
(a); in the second sentence of paragraph (b) by adding ``with'' after 
the word ``consult''; and by revising the second sentence of paragraph 
(c) to read as follows:


7.104  General procedures.

    (a) Acquisition planning should begin as soon as the agency need is 
identified, preferably well in advance of the fiscal year in which 
contract award or order placement is necessary. * * *
* * * * *
    (c) * * * If the plan proposes using other than full and open 
competition when awarding a contract, the plan shall also be 
coordinated with the cognizant competition advocate.

    6. Amend section 7.105 in the first sentence of the introductory 
paragraph by removing ``subparagraph'' and adding ``paragraph'' in its 
place, and in the last sentence by adding ``or orders'' after the word 
``contracts''; and by revising paragraph (b)(4) to read as follows:


7.105  Contents of written acquisition plans.

* * * * *
    (b) * * *
    (4) Acquisition considerations. (i) For each contract contemplated, 
discuss contract type selection (see part 16); use of multiyear 
contracting, options, or other special contracting methods (see part 
17); any special clauses, special solicitation provisions, or FAR

[[Page 56119]]

deviations required (see subpart 1.4); whether sealed bidding or 
negotiation will be used and why; whether equipment will be acquired by 
lease or purchase (see subpart 7.4) and why; and any other contracting 
considerations.
    (ii) For each order contemplated, discuss--
    (A) For information technology acquisitions, how the capital 
planning and investment control requirements of 40 U.S.C. 1422 and OMB 
Circular A-130 will be met (see 7.103(t) and part 39); and
    (B) Why this action benefits the Government, such as when--
    (1) The agency can accomplish its mission more efficiently and 
effectively (e.g., take advantage of the servicing agency's specialized 
expertise; or gain access to contractors with needed expertise); or
    (2) Ordering through an indefinite delivery contract facilitates 
access to small business concerns, including small disadvantaged 
business concerns, 8(a) contractors, women-owned small business 
concerns, HUBZone small business concerns, veteran-owned small business 
concerns, or service-disabled veteran-owned small business concerns.
* * * * *

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES


8.001 through 8.003  [Redesignated as 8.002 through 8.004]

    7. Redesignate sections 8.001 through 8.003 as 8.002 through 8.004, 
respectively; and add a new section 8.001;
    7a. In the newly designated section 8.002 remove from the 
introductory text of paragraph (a) ``8.002'' and add ``8.003'' in its 
place; and in the second sentence of the newly designated section 
8.004, remove ``must'' and add ``shall'' (twice) in its place.
    The added text reads as follows:


8.001  General.

    Regardless of the source of supplies or services to be acquired, 
information technology acquisitions shall comply with capital planning 
and investment control requirements in 40 U.S.C. 1422 and OMB Circular 
A-130.
* * * * *


8.401  [Amended]

    8. Amend section 8.401 in the first sentence of paragraph (a) by 
removing ``8.001'' and adding ``8.002'' in its place.

    9. Amend section 8.404 by revising paragraph (a) to read as 
follows:


8.404  Using schedules.

    (a) General. (1) Parts 13 and 19 do not apply to orders placed 
against Federal Supply Schedules, except for the provision at 13.303-
2(c)(3). Orders placed against a Multiple Award Schedule (MAS), using 
the procedures in this subpart, are considered to be issued using full 
and open competition (see 6.102(d)(3)).
    (i) Ordering offices need not seek further competition, synopsize 
the requirement, make a separate determination of fair and reasonable 
pricing, or consider small business programs.
    (ii) GSA has already determined the prices of items under schedule 
contracts to be fair and reasonable. By placing an order against a 
schedule using the procedures in this section, the ordering office has 
concluded that the order represents the best value and results in the 
lowest overall cost alternative (considering price, special features, 
administrative costs, etc.) to meet the Government's needs.
    (2) Orders placed under a Federal Supply Schedule contract are not 
exempt from the development of acquisition plans (see subpart 7.1), and 
an information technology acquisition strategy (see part 39).
* * * * *


8.602  [Amended]

    10. Amend section 8.602 in the introductory text of paragraph (b) 
by removing ``8.001'' and adding ``8.002'' in its place.

PART 16--TYPES OF CONTRACTS

    11. Amend section 16.505 as follows:
    a. Revise paragraph (a)(2);
    b. In paragraph (a)(3) by adding ``or order'' after the word 
``contract'';
    c. Redesignate paragraphs (a)(4), (a)(5), and (a)(6) as (a)(5), 
(a)(6), and (a)(8), respectively, and add new paragraphs (a)(4) and 
(a)(7);
    d. Add paragraphs (b)(1)(iii)(A)(4) and (b)(1)(iii)(A)(5);
    e. Revise the introductory text of paragraph (b)(2);
    f. Amend paragraphs (b)(2)(i) and (b)(2)(ii) by removing the 
semicolons and adding periods in their places;
    g. Revise paragraph (b)(2)(iii);
    h. Revise paragraph (b)(4); and
    i. Revise the heading and the first sentence of paragraph (b)(5).
    The revised and added text reads as follows:


16.505  Ordering.

    (a) * * *
    (2) Individual orders shall clearly describe all services to be 
performed or supplies to be delivered so the full cost or price for the 
performance of the work can be established when the order is placed. 
Orders shall be within the scope, issued within the period of 
performance, and be within the maximum value of the contract.
* * * * *
    (4) When acquiring information technology and related services, 
consider the use of modular contracting to reduce program risk (see 
39.103(a)).
* * * * *
    (7) Orders placed under a task-order contract or delivery-order 
contract awarded by another agency (i.e., a Governmentwide acquisition 
contract, or multi-agency contract)--
    (i) Are not exempt from the development of acquisition plans (see 
subpart 7.1), and an information technology acquisition strategy (see 
part 39); and
    (ii) May not be used to circumvent conditions and limitations 
imposed on the use of funds (e.g., 31 U.S.C. 1501(a)(1)).
* * * * *
    (b) * * *
    (1) * * *
    (iii) * * *
    (A) * * *
    (4) The amount of time contractors need to make informed business 
decisions on whether to respond to potential orders.
    (5) Whether contractors could be encouraged to respond to potential 
orders by outreach efforts to promote exchanges of information, such 
as--
    (i) Seeking comments from two or more contractors on draft 
statements of work;
    (ii) Using a multiphased approach when effort required to respond 
to a potential order may be resource intensive (e.g., requirements are 
complex or need continued development), where all contractors are 
initially considered on price considerations (e.g., rough estimates), 
and other considerations as appropriate (e.g., proposed conceptual 
approach, past performance). The contractors most likely to submit the 
highest value solutions are then selected for one-on-one sessions with 
the Government to increase their understanding of the requirements, 
provide suggestions for refining requirements, and discuss risk 
reduction measures.
* * * * *
    (2) Exceptions to the fair opportunity process. The contracting 
officer shall give every awardee a fair opportunity to be considered 
for a delivery-order or task-order exceeding $2,500 unless one

[[Page 56120]]

of the following statutory exceptions applies:
* * * * *
    (iii) The order must be issued on a sole-source basis in the 
interest of economy and efficiency because it is a logical follow-on to 
an order already issued under the contract, provided that all awardees 
were given a fair opportunity to be considered for the original order.
* * * * *
    (4) Decision documentation for orders. The contracting officer 
shall document in the contract file the rationale for placement and 
price of each order, including the basis for award and the rationale 
for any tradeoffs among cost or price and non-cost considerations in 
making the award decision. This documentation need not quantify the 
tradeoffs that led to the decision. The contract file shall also 
identify the basis for using an exception to the fair opportunity 
process. If the agency uses the logical follow-on exception, the 
rationale shall describe why the relationship between the initial order 
and the follow-on is logical (e.g., in terms of scope, period of 
performance, or value).
    (5) Task-order and delivery-order ombudsman. The head of the agency 
shall designate a task-order and delivery-order ombudsman. * * *
* * * * *

PART 17--SPECIAL CONTRACTING METHODS

    12. Revise paragraph (b) of section 17.500 to read as follows:


17.500  Scope of subpart.

* * * * *
    (b) The Economy Act applies when more specific statutory authority 
does not exist. Examples of interagency acquisitions to which the 
Economy Act does not apply include--
    (1) Acquisitions from required or optional sources of supplies 
prescribed in Part 8, which have separate statutory authority (e.g., 
Federal Supply Schedule contracts); and
    (2) Acquisitions using Governmentwide acquisition contracts.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.208-9  [Amended]

    13. Amend section 52.208-9 by removing from the prescription 
``8.003'' and adding ``8.004'' in its place.

[FR Doc. 02-21867 Filed 8-29-02; 8:45 am]
BILLING CODE 6820-EP-P