[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14636-14639]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7019]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4, 5, 8, 13, and 16

[FAC 2005-32; FAR Case 2009-010; Item III; Docket 2009-0010, Sequence 
1]
RIN 9000-AL24


Federal Acquisition Regulation; FAR Case 2009-010, American 
Recovery and Reinvestment Act of 2009 (the Recovery Act)--Publicizing 
Contract Actions

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

ACTION: Interim rule with request for comments.

-----------------------------------------------------------------------

[[Page 14637]]

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 the 
Office of Management and Budget (OMB) Guidance M-09-10, dated February 
18, 2009, entitled, ``Initial Implementing Guidance for the American 
Recovery and Reinvestment Act of 2009'' (the Recovery Act), with 
respect to publicizing contract actions.

DATES: Effective Date: March 31, 2009
    Applicability Date: This rule applies on or after the effective 
date of this rule to: (1) Solicitations issued, (2) contracts awarded, 
and (3) orders issued under existing task and delivery order contracts 
as defined in the rule.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before June 1, 2009 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2009-
010, by any of the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2009-010'' under the heading ``Comment or Submission.'' 
Select the link ``Send a Comment or Submission'' that corresponds with 
FAR Case 2009-010. Follow the instructions provided to complete the 
``Public Comment and Submission Form.'' Please include your name, 
company name (if any), and ``FAR Case 2009-010'' on your attached 
document.
     Fax: 202-501-4067.
     Mail: General Services Administration, FAR Secretariat 
(VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, 
DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-32, FAR 
case 2009-010, 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. Millisa Gary, Procurement Analyst, 
at (202) 501-0699 for clarification of content. Please cite FAC 2005-
32, FAR case 2009-010. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION: 

A. Background

    This interim rule implements Section 6.2 of the OMB Memorandum M-
09-10, ``Initial Implementing Guidance for the American Recovery and 
Reinvestment Act of 2009,'' (Pub. L. 111-5) (Recovery Act). In 
addition, this rule enables the Governmentwide Point of Entry (https://www.fedbizopps.gov) to be leveraged for the purpose of fulfilling 
sections 1526(c)(4) and 1554 of Division A of the Recovery Act.
    On February 17, 2009, the President signed the Recovery Act. On 
February 18, 2009, the Director of OMB issued initial implementing 
guidance. One of the provisions of the OMB guidance is to provide 
accountability and transparency relative to publicizing contract 
actions. The OMB guidance requires that the FAR be amended to reflect:
    1. Unique requirements for posting of presolicitation notices.
    2. Unique requirements for announcing contract awards.
    3. Unique requirements for entering awards into the Federal 
Procurement Data System (FPDS).
    4. Unique requirements for actions that are not fixed-price or 
competitive.

B. Discussion

    In order to implement Section 6.2 of the OMB Guidance M-09-10, FAR 
Parts 4, 5, 8, 13, and 16 are amended as follows:
    1. Part 4 requires the contracting officer to enter data in the 
Federal Procurement Data System on any action funded in whole or in 
part by the American Recovery and Reinvestment Act of 2009 (Pub. L. 
111-5), in accordance with the instructions at https://www.fpds.gov.
    2. Subpart 5.7 is added to direct the contracting officer to use 
the Governmentwide Point of Entry (https://www.fedbizopps.gov) to (a) 
identify the action as funded by the Recovery Act; (b) post pre-award 
notices for orders exceeding $25,000 for ``informational purposes 
only;'' (c) describe supplies and services (including construction) in 
a narrative that is clear and unambiguous to the general public; and 
(d) provide a rationale for awarding any action, including 
modifications and orders, that is not both fixed-price and competitive, 
and include the rationale for using other than a fixed-price and/or 
competitive approach.
    3. Parts 8, 13, and 16 are amended to reflect the new posting 
requirements for orders at Subpart 5.7.
    This is a significant regulatory action and, therefore, was subject 
to Office of Management and Budget (OMB) 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.

C. Regulatory Flexibility Act

    The Councils do not expect this interim rule 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 the OMB guidance affects only internal government operations 
and provides a strong preference for using small businesses for the 
Recovery Act programs wherever possible. The interim rule does not 
impose any additional requirements on small businesses. Therefore, an 
Initial Regulatory Flexibility Analysis has not been performed. The 
Councils will consider comments from small entities concerning the 
affected FAR Parts 4, 5, 8, 13, and 16 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 2005-32, FAR Case 2009-010) in 
correspondence.

D. 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. 
Chapter 35, et seq.

E. 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 Recovery Act became effective upon enactment, 
and contracts using funds appropriated by the Act will soon be ready to 
award. 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 4, 5, 8, 13, and 16

    Government procurement.

    Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 5, 8, 13, and 16 as 
set forth below:

[[Page 14638]]

0
1. The authority citation for 48 CFR parts 4, 5, 8, 13, and 16 
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 4--ADMINISTRATIVE MATTERS

0
2. Amend section 4.605 by adding paragraph (c) to read as follows:


4.605   Procedures.

* * * * *
    (c) The contracting officer, when entering data in FPDS, shall use 
the instructions at https://www.fpds.gov to identify any action funded 
in whole or in part by the American Recovery and Reinvestment Act of 
2009 (Pub. L. 111-5).

PART 5--PUBLICIZING CONTRACT ACTIONS

0
3. Add Subpart 5.7 to read as follows:

Subpart 5.7--Publicizing Requirements under the American Recovery 
and Reinvestment Act of 2009

Sec.
5.701 Scope.
5.702 Applicability.
5.703 Definitions.
5.704 Publicizing-preaward.
5.705 Publicizing-post-award.

Subpart 5.7--Publicizing Requirements under the American Recovery 
and Reinvestment Act of 2009


5.701   Scope.

    This subpart prescribes posting requirements for presolicitation 
and award notices for actions funded in whole or in part by the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) 
(Recovery Act). The requirements of this subpart enhance transparency 
to the public.


5.702   Applicability.

    This subpart applies to all actions expected to exceed $25,000 
funded in whole or in part by the Recovery Act. Unlike subparts 5.2 and 
5.3, this subpart includes additional requirements for orders and for 
actions that are not both fixed-price and competitive.


5.703   Definition.

    As used in this subpart--
    Task or delivery order contract means a ``delivery order 
contract,'' and a ``task order contract,'' as defined in 16.501-1. For 
example, it includes Governmentwide Acquisition Contracts (GWACs), 
multi-agency contracts (MACs), and other indefinite-delivery/
indefinite-quantity contracts, whether single award or multiple award. 
It also includes Federal Supply Schedule contracts (including Blanket 
Purchase Agreements under Subpart 8.4).


5.704   Publicizing-preaward.

    (a)(1) Follow the publication procedures at 5.201.
    (2) In addition, notices of proposed contract actions are required 
for orders of $25,000 or more, funded in whole or in part by the 
Recovery Act, which are issued under task or delivery order contracts. 
These notices are for ``informational purposes only,'' therefore, 5.203 
does not apply. Contracting officers should concurrently use their 
usual solicitation practice (e.g., e-Buy).
    (b) Contracting officers shall use the instructions at the 
Governmentwide Point of Entry (GPE) (https://www.fedbizopps.gov) to 
identify proposed contract actions funded in whole or in part by the 
Recovery Act.
    (c) Ensure that the description required by 5.207(a)(16) includes a 
narrative of the products and services (including construction) that is 
clear and unambiguous to the general public.


5.705   Publicizing-post-award.

    Follow usual publication procedures at 5.301, except that the 
following supersede the exceptions at 5.301(b)(3) through (8):
    (a) For any contract action exceeding $500,000, including all 
modifications and orders under task or delivery order contracts, 
publicize the award notice and ensure that the description required by 
5.207(a)(16) includes a narrative of the products and services 
(including construction) that is clear and unambiguous to the general 
public.
    (b) Regardless of dollar value, if the contract action, including 
all modifications and orders under task or delivery order contracts, is 
not both fixed-price and competitively awarded, publicize the award 
notice and include in the description the rationale for using other 
than a fixed-priced and/or competitive approach. These notices and the 
rationale will be available to the public at the GPE, so do not include 
any proprietary information or information that would compromise 
national security. The following table provides examples for when a 
rationale is required.

                     Posting of Rationale--Examples
------------------------------------------------------------------------
                                            Posting rationale on special
      Description of contract action           section ofrecovery.gov
------------------------------------------------------------------------
(1) A contract is competitively awarded     Not Required.
 and is fixed-price.
(2) A contract is awarded that is not       Required
 fixed-price..
(3) A contract is awarded without           Required
 competition..
(4) An order is issued under a new or       Required if order is made
 existing single award IDIQ contract.        under a contract described
                                             in (2) or (3).
(5) An order is issued under a new or       Required if one or both of
 existing multiple award IDIQ contract.      the following conditions
                                             exist:
                                            (i) The order is not fixed-
                                             price.
                                            (ii) The order is awarded
                                             pursuant to an exception to
                                             the competition
                                             requirements applicable to
                                             the underlying vehicle
                                             (e.g., award is made
                                             pursuant to an exception to
                                             the fair opportunity
                                             process).
(6) A modification is issued..............  Required if modification is
                                             made:
                                            (i) To a contract described
                                             in (2) or (3) above; or
                                            (ii) To an order requiring
                                             posting as described in (4)
                                             or (5) above.
(7) A contract or order is awarded          Required if one or both of
 pursuant to a small business contracting    the following conditions
 authority (e.g., SBA's section 8(a)         exist:
 program).                                  (i) The contract or order is
                                             not fixed-price;
                                            (ii) The contract or order
                                             was not awarded using
                                             competition (e.g., a non-
                                             competitive 8(a) award).
------------------------------------------------------------------------

     (c) Contracting officers shall use the instructions at the 
Governmentwide Point of Entry (GPE) (https://www.fedbizopps.gov) to 
identify actions funded in whole or in part by the Recovery Act.

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
4. Amend section 8.404 by revising the last sentence in paragraph (a); 
and by adding a new paragraph (e) to read as follows:

[[Page 14639]]

8.404  Use of Federal Supply Schedules.

    (a) General.* * * Therefore, when establishing a BPA (as authorized 
by 13.303-2(c)(3)), or placing orders under Federal Supply Schedule 
contracts using the procedures of 8.405, ordering activities shall not 
seek competition outside of the Federal Supply Schedules or synopsize 
the requirement; but see paragraph (e) of this section for orders 
(including orders issued under BPAs) funded in whole or in part by the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).
* * * * *
    (e) Publicizing contract actions funded in whole or in part by the 
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
    (1) Notices of proposed MAS orders (including orders issued under 
BPAs) that are for ``informational purposes only'' exceeding $25,000 
shall follow the procedures in 5.704 for posting orders.
    (2) Award notices for MAS orders (including orders issued under 
BPAs) shall follow the procedures in 5.705.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
5. Amend section 13.105 by adding paragraph (d) to read as follows:


13.105  Synopsis and posting requirements.

* * * * *
    (d) When publicizing contract actions funded in whole or in part by 
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
    (1) Notices of proposed contract actions shall follow the 
procedures in 5.704 for posting orders.
    (2) Award notices shall follow the procedures in 5.705.

PART 16--TYPES OF CONTRACTS

0
6. Amend section 16.505 by revising paragraph (a)(1); and adding 
paragraph (a)(10) to read as follows:


16.505  Ordering.

    (a) * * *
    (1) In general, the contracting officer does not synopsize orders 
under indefinite-delivery contracts; but see 16.505(a)(10) for orders 
funded in whole or in part by the American Recovery and Reinvestment 
Act of 2009 (Pub. L. 111-5).
* * * * *
    (10) Publicize orders funded in whole or in part by the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) as follows:
    (i) Notices of proposed orders shall follow the procedures in 5.704 
for posting orders.
    (ii) Award notices for orders shall follow the procedures in 5.705.
* * * * *

 [FR Doc. E9-7019 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P