[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2731-2733]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-555]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 6, and 24

[FAC 2005-30; FAR Case 2008-003; Item IV; Docket 2008-0001, Sequence 
08]
RIN 9000-AL13


Federal Acquisition Regulation; FAR Case 2008-003, Public 
Disclosure of Justification and Approval Documents for Noncompetitive 
Contracts-Section 844 of the National Defense Authorization Act for 
Fiscal Year 2008

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 844 of the National Defense Authorization Act for Fiscal Year 
2008 ``Public Disclosure of Justification and Approval Documents for 
Noncompetitive Contracts'' (FY08 NDAA). Section 844 of the FY08 NDAA 
stipulates the requirements regarding the public availability of 
justification and approval documents after the award of Federal 
contracts, except for information exempt from public disclosure.

DATES: Effective Date: February 17, 2009.
    Applicability Date: This interim rule applies to all contracts 
awarded from a 6.303-1 justification and approval document on or after 
the effective date.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before March 16,

[[Page 2732]]

2009 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-30, FAR case 2008-
003, by any of the following methods:
     Regulations.gov: http://www.regulations.gov.Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2008-003'' under the heading ``Comment or Submission''. Select the link 
``Send a Comment or Submission'' that corresponds with FAR Case 2008-
003. Follow the instructions provided to complete the ``Public Comment 
and Submission Form''. Please include your name, company name (if any), 
and ``FAR Case 2008-003'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW, Room 4035, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-30, FAR 
case 2008-003, 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: Mr. Ernest Woodson, Procurement 
Analyst, at (202) 501-3775 for clarification of content. Please cite 
FAC 2005-30, FAR case 2008-003. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

    The National Defense Authorization Act for Fiscal Year 2008, 
Section 844 ``Public Disclosure of Justification and Approval Documents 
for Noncompetitive Contracts ''amends 10 U.S.C. 2304 and 41 U.S.C. 253 
regarding procurements made under subsection (c) (i.e., other than 
competitive procedures) to require public availability of the 
justification and approval documents after contract award except for 
information exempt from public disclosure under 5 U.S.C. 552. The 
provisions of Section 844 require the head of an executive agency to 
make certain justification and approval documents relating to the use 
of noncompetitive procedures in contracting available on the website of 
an agency and through a governmentwide website selected by the 
Administrator for Federal Procurement Policy within 14 days of contract 
award. In the case of noncompetitive contracts awarded on the basis of 
unusual and compelling urgency, the documents must be posted within 30 
days of contract award. The Competition in Contracting Act (Public Law 
98-369) already requires that such justification and approval documents 
be made available for public inspection, subject to the exemptions from 
public disclosures provided in the Freedom of Information Act (5 U.S.C. 
552).
    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 interim rule is not expected to 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 this 
rule does not revise or change existing regulations pertaining to small 
business concerns seeking Government contracts. Therefore, an Initial 
Regulatory Flexibility Analysis has not been performed. The Councils 
will consider comments from small entities concerning the affected FAR 
Parts 5, 6, and 24 in accordance with 5 U.S.C. 610. Interested parties 
must submit such comments separately and should cite 5 U.S.C 601, et 
seq. (FAC 2005-30, FAR case 2008-003), in all 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 because the provision of the National Defense 
Authorization Act for Fiscal Year 2008, Section 844 was enacted on 
January 28, 2008. The Councils believe that the interim rule in the FAR 
will provide contracting officers the relevant regulatory guidance 
needed when addressing requirements outlined in this notice. The rule 
will also benefit industry by increasing transparency and 
accountability in federal contracting. This interim rule is applicable 
to all contracts awarded from a 6.303-1 justification and approval 
document on or after the effective date of this rule. 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 Parts 5, 6, and 24

    Government procurement.

    Dated: December 24, 2008
Edward Loeb,
Acting Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, and 24 as set 
forth below:
    1. The authority citation for 48 CFR parts 5, 6, and 24 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).

PART 5--PUBLICIZING CONTRACT ACTIONS

0
2. Amend section 5.301 by adding paragraph (d) to read as follows:


5.301  General.

* * * * *
    (d) Justifications for other than full and open competition must be 
posted in accordance with 6.305.
0
3. Add section 5.406 to read as follows:


5.406  Public disclosure of justification and approval documents for 
noncompetitive contracts.

    Justifications for other than full and open competition must be 
posted in accordance with 6.305.

PART 6--COMPETITION REQUIREMENTS

0
4. Revise section 6.305 to read as follows:


6.305  Availability of the justification.

    (a) Except for paragraph (b) of this section, the agency shall make 
publicly available within 14 days after contract award the 
justification required by 6.303-1 as required by 10 U.S.C. 2304(f)(4) 
and 41 U.S.C. 253(f)(4)--
    (1) At the GPE www.fedbizopps.gov; and
    (2) On the website of the agency, which may provide access to the 
justifications by linking to the GPE.
    (b) In the case of a contract award permitted under 6.302-2, the

[[Page 2733]]

justification shall be posted within 30 days after contract award.
    (c) Contracting officers shall carefully screen all justifications 
for contractor proprietary data and remove all such data, and such 
references and citations as are necessary to protect the proprietary 
data, before making the justifications available for public inspection. 
Contracting officers shall also be guided by the exemptions to 
disclosure of information contained in the Freedom of Information Act 
(5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in 
determining whether other data should be removed.

PART 24--PROTECTION OF PRIVACY AND FREEDOM OF INFORMATION

0
5. Amend section 24.203 by adding after the second sentence and at the 
end of paragraph (b) new sentences to read as follows:


24.203  Policy.

* * * * *
    (b) * * * Other exemptions include agency personnel practices, and 
law enforcement. * * * A Freedom of Information Act guide and other 
resources are available at the Department of Justice website under FOIA 
reference materials: http://www.usdoj.gov/oip.
[FR Doc. E9-555 Filed 1-14-09; 8:45 am]
BILLING CODE 6820-EP-S