[Federal Register Volume 75, Number 92 (Thursday, May 13, 2010)]
[Proposed Rules]
[Pages 26916-26917]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-11381]





48 CFR Part 24

[FAR Case 2009-004; Docket 2010-0089, Sequence 1]
RIN 9000-AL59

Federal Acquisition Regulation: FAR Case 2009-004, Enhancing 
Contract Transparency

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

ACTION: Advance notice of proposed rulemaking.


SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are seeking information that 
will assist in determining how best to amend the Federal Acquisition 
Regulation (FAR) to enable public posting of contract actions, should 
such posting become a requirement in the future, without compromising 
contractors' proprietary and confidential commercial or financial 
information. This transparency effort is intended to promote efficiency 
in Government contracting through an open acquisition process and 
improve Federal spending accountability consistent with the 
Administration's memorandum entitled Transparency and Open Government 
(January 21, 2009) (Published in the Federal Register at 74 FR 4685, 
January 26, 2009).

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at the address shown below on or before July 12, 
2010 to be considered in the formation of a proposed rule.

ADDRESSES: Submit comments identified by FAR Case 2009-004, by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2009-004'' under the heading ``Comment or Submission.'' Select the link 
``Send a Comment or Submission'' that corresponds with FAR Case 2009-
004. Follow the instructions provided to complete the ``Public Comment 
and Submission Form.'' Please include your name, company name (if any), 
and ``FAR Case 2009-004'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, FAR Secretariat 
(MVCB), 1800 F Street, NW., Room 4041, Attn: Hada Flowers, Washington, 
DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2009-
004 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. Michael Jackson, Procurement 
Analyst, at (202) 208-4949 for clarification of content. The FAR 
Secretariat at (202) 501-4755 for information pertaining to status or 
publication schedules. Please cite FAR case 2009-004.

    The Councils anticipate that, in the future, a requirement to post 
on-line the text of contracts and task and delivery orders will be 
instituted. See generally Presidential Memorandum entitled Freedom of 
Information Act (January 21, 2009) (Published in the Federal Register 
at 74 FR 4683, January 26, 2009); Presidential Memorandum entitled 
Transparency and Open Government (January 21, 2009) (Published in the 
Federal Register at 74 FR 4685, January 26, 2009); Attorney General 
Memorandum entitled Freedom of Information Act (March 19, 2009); Office 
of Science and Technology Policy Notice, Transparency and Open 
Government (Published in the Federal Register at 74 FR 23901, May 21, 
2009); OMB memorandum entitled Open Government Directive (M-10-06, 
December 8, 2009). In support of this anticipated requirement, the 
Councils are considering how best to revise the FAR to facilitate such 
posting without violating statutory and regulatory prohibitions against 
disclosing protected information belonging to the Government or 
    The Councils are particularly interested in suggestions that will 
facilitate uniform, consistent processing methods that are fair and 
equitable as well as cost effective and efficient, while at the same 
time simplifying access to acquisitions once posted. The Councils are 
mindful of the need to protect the Government's classified information 
in accordance with the National Industrial Security Program Operating 
Manual (NISPOM) (DoD 5220.22-M) and the Industrial Security Regulation 
(DoD 5220.22-R) (see FAR Subpart 4.4) and the protections afforded 
contractor information under the Freedom of Information Act (FOIA) (5 
U.S.C. 552) procedures (see FAR Subpart 24.2 and E.O. 12600). The 
Councils are also mindful of the FAR section which already addresses 
the marking of contractor information (see FAR 3.104-4).
    It may not be practical to apply FOIA procedures before posting in 
every case. The Councils are looking into methods for identifying the 
types of information that should not be posted or released to the 
public, as well as means for electronic processing and posting, and 
development of provision or clause requirements for successful offerors 
to provide a redacted copy of the contract. The Councils are also 
requesting suggestions for how best to protect the types of information 
through redacting, locating all such information in a standard place in 
the contract, or other possible methods to be considered.
    Respondents are encouraged to address the benefits of this 
transparency effort as well as possible impacts on offerors' and the 
Government's business systems, dollar thresholds for

[[Page 26917]]

application, and other cost impacts, especially on proposal 
preparation. Also, written responses to this notice should address 
whether a public meeting on this topic would be beneficial and, if so, 
what issues should be addressed.
    This is a significant regulatory action and, therefore, was 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.

List of Subjects in 48 CFR Part 24

    Government procurement.

    Dated: May 7, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
[FR Doc. 2010-11381 Filed 5-12-10; 8:45 am]