[Federal Register Volume 75, Number 53 (Friday, March 19, 2010)]
[Rules and Regulations]
[Pages 13415-13416]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-5987]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 15 and 53

[FAC 2005-39; FAR Case 2008-040; Item III; Docket 2010-0081, Sequence 
1]
RIN 9000-AL48


Federal Acquisition Regulation; FAR Case 2008-040, Use of 
Standard Form 26 - Award/Contract

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 revise FAR parts 
15 and 53 instructions for use of the Standard Form (SF) 26 to 
strengthen the prohibition against using block 18 of the form when 
awarding a negotiated procurement and emphasize that block 18 should 
only be checked when awarding a sealed bid contract. In addition, the 
final sentence of the current FAR 53.214 is being amended because the 
updated SF 26 was issued in April 2008, making the sentence 
unnecessary.

DATES: Effective Date: April 19, 2010.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-39, FAR Case 
2008-040.

SUPPLEMENTARY INFORMATION:

A. Background

    This case was initiated to clarify an inconsistency in the use of 
the SF 26 by contracting officers. The SF 26 requires the contracting 
officer to complete block 17 for negotiated or sealed bid procurements 
or block 18 for sealed bid procurements, as applicable. Although block 
18 of the form is intended for use only with sealed bid procurements, 
it is regularly (and improperly) being used with negotiated 
procurements. This has resulted in negotiated procurements being 
awarded unilaterally without proper documentation.
    FAR 53.214(a) prescribes the SF 26 for use in contracting for 
supplies and services by sealed bidding (except for construction and 
architect-engineer services). The SF 26 is used to award sealed bid 
contracts after obtaining bids using a SF 33, Solicitation, Offer, and 
Award. FAR 14.408-1(d)(1) specifies that, if an offer made using a SF 
33 leads to further changes, the resulting contract must be prepared as 
a bilateral document using the SF 26.
    This case is intended to address those instances where contracting 
officers have mistakenly checked block 18 to award negotiated, not 
sealed bid, contracts. This error can create the potential for disputes 
in those situations where the Government's intent was not to accept the 
terms of the offer in its entirety, as the current wording of block 18 
may imply.
    The Councils believe that revisions to instructions for use of the 
form, at FAR subparts 15.5 and 53.2, along with improved training and 
emphasis on the proper use of the SF 26, will eliminate the issue. 
Thus, FAR 15.509 is being revised to add ``Note however, if using the 
SF 26 for a negotiated procurement, block 18 is not to be used.'' FAR 
53.214(a) is revised by deleting the no-longer-necessary phrase 
``Pending issuance of a new edition of the form, the reference in 
`block 1' should be amended to read `15 CFR 700''' and adding ``Block 
18 may only be used for sealed-bid procurements.'' In addition, a 
sentence is added at FAR 53.215-1(a) to read ``Block 18 may not be used 
for negotiated procurements.'' This change does not prohibit the use of 
the SF 26 for awarding negotiated procurements, it only prohibits the 
use of block 18 of the SF 26 when awarding negotiated procurements. The 
Councils have opened a separate FAR case to address the actual changes 
to the SF 26 form. FAR Case 2009-029 is a proposed rule on which the 
public will have the opportunity to comment.

Decision to Issue a Final Rule
    This case does not change the current uses of the SF 26. It merely 
clarifies the existing instructions for use of the form. Therefore, 
because there is no change in policy or procedure, the Councils 
determined to issue a final rule without public comment.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6 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 Regulatory Flexibility Act does not apply to this rule. This 
final rule does not constitute a significant FAR revision within the 
meaning of FAR 1.501 and Pub. L. 98-577, and publication for public 
comments is not required.
    The Councils will consider comments from small entities concerning 
the existing regulations in parts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (FAC 2005-39, FAR Case 2008-
040) 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. 
chapter 35, et seq.

List of Subjects in 48 CFR Parts 15 and 53

    Government procurement.


[[Page 13416]]


    Dated: March 15, 2010.
Al Matera,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 15 and 53 as set forth 
below:

0
1. The authority citation for 48 CFR parts 15 and 53 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 15--CONTRACTING BY NEGOTIATION


15.509  [Amended]

0
2. Amend section 15.509 by removing from the first sentence 
``appropriate.'' and adding ``appropriate. Note however, if using the 
SF 26 for a negotiated procurement, block 18 is not to be used.'' in 
its place.

PART 53--FORMS


53.214  [Amended]

0
3. Amend section 53.214 by removing from the second sentence in 
paragraph (a) the phrase ``Pending issuance of a new edition of the 
form, the reference in ``block 1'' should be amended to read ``15 CFR 
700.'''' and adding ``Block 18 may only be used for sealed-bid 
procurements.'' in its place.


53.215-1  [Amended]

0
4. Amend section 53.215-1 by removing from paragraph (a) ``15.509.'' 
and adding ``15.509. Block 18 may not be used for negotiated 
procurements.'' in its place.
[FR Doc. 2010-5987 Filed 3-18-10; 8:45 am]
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