[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34271-34273]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-14220]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

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

[FAC 2005-42; 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: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have adopted as final, with 
minor changes, an interim rule amending the Federal Acquisition 
Regulation (FAR) to implement the Office of Management and Budget (OMB) 
Memorandum M-09-10, entitled ``Initial Implementing Guidance for the 
American Recovery and Reinvestment Act of 2009,'' (the Recovery Act) 
with respect to publicizing contract actions. The OMB issued Memorandum 
M-09-15, entitled ``Updated Implementing Guidance for the American 
Recovery and Reinvestment Act of 2009,'' to supplement, amend, and 
clarify the initial guidance in OMB Memorandum M-09-10.

DATES: Effective Date: July 16, 2010.
    Applicability Date: This rule applies on or after the effective 
date of this rule to: (1) solicitations issued, (2) contracts awarded, 
(3) orders issued under task and delivery order contracts, and (4) 
modifications to orders issued under task and delivery order contracts.

FOR FURTHER INFORMATION CONTACT: Michael Jackson, Procurement Analyst, 
at (202) 208-4949, for clarification of content. For information 
pertaining to status or publication schedules, contact the FAR 
Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR Case 2009-
010.

SUPPLEMENTARY INFORMATION:

A. Background

    On February 17, 2009, the President signed the Recovery Act. On 
February 18, 2009, the Director of the Office of Management and Budget 
(OMB) issued initial implementing guidance, OMB Memorandum M-09-10. One 
of the provisions of the initial OMB guidance was to provide 
accountability and transparency relative to publicizing contract 
actions. The OMB guidance required 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); and
    4. Unique requirements for actions that are not fixed-price or 
competitive.
    The OMB Memorandum M-09-15, dated April 3, 2009, entitled ``Updated 
Implementing Guidance for the American Recovery and Reinvestment Act of 
2009,'' supplements, amends, and clarifies the initial guidance issued 
on February 18, 2009. All significant updates to OMB Memorandum M-09-10 
are outlined in section 1.5 of M-09-15. These updates are based on 
ongoing input received from the public, Congress, State and local 
government officials, grant and contract recipients, and Federal 
personnel.
    The interim rule was published in the Federal Register at 74 FR 
14636 on March 31, 2009, with a request for comments by June 1, 2009.
    The interim rule implemented section 6.2 of the OMB Memorandum M-
09-10. In addition, the interim rule enabled the Governmentwide Point 
of Entry (GPE) (https://www.fedbizopps.gov) to be leveraged for the 
purpose of fulfilling the requirements of sections 1526(c)(4) and 1554 
of Division A of the Recovery Act.
    Three respondents submitted seven comments in response to the 
interim rule.

B. Responses to Public Comments

    Below are the comments received on the interim rule, along with the 
responses developed by the Councils.
    1. Comment: In publicizing postaward notices, the Councils should 
require that contracting officers publicize the text of the entire 
contract awarded. A narrative description of the award only would 
hinder transparency since a summary would omit many key details that 
are essential benchmarks by which to measure the quality and 
effectiveness of Government contractors. Without this information, the 
public, Government watchdogs, and the news media would have a difficult 
time identifying waste, fraud, and abuse and excellent contract work, 
as well. While the Recovery Act specifies that a description of 
contracts be posted online, the FAR should be amended in order to 
realize the intent of the Act.
    Response: The public may obtain copies of contracts using the 
Freedom of Information Act (FOIA) process in accordance with FAR 
subpart 24.2. The costs associated with redacting every Recovery Act 
contract action to guard against improper disclosure of proprietary, 
business confidential, or national security information would be 
prohibitive.
    2. Comment: The case would have contracting officers ``post 
preaward notices for orders exceeding $25,000 for `informational 
purposes' only''. On its face, this seems to apply to task and delivery 
orders placed competitively against multiple-award contract vehicles, 
such as indefinite-delivery-indefinite-quantity (IDIQ) contracts. Given 
that the regulations appear to be designed for non-FFP and/or non-
competitive actions, can we confirm its justification and application 
to competitively awarded IDIQ orders?
    Response: The requirement to post presolicitation and award notices 
on FedBizOpps GPE applies to all orders with a dollar value exceeding 
$25,000 regardless of competition procedures or pricing arrangements 
used, including those orders placed under Federal Supply Schedules, 
Governmentwide acquisition contracts, multiple-agency contracts, 
blanket purchase agreements, basic ordering agreements, and indefinite 
delivery type contracts. Additionally, if noncompetitive procedures or 
non-fixed-price arrangements were used for award of the order, then the 
contracting officer must provide the rationale required by FAR 5.705(b) 
in the award notice.
    3. Comment: The case mandates that FedBizOpps notices ``describe 
supplies and services in a narrative that is clear and unambiguous to 
the general public.'' The phrase, ``clear and unambiguous to the 
general public'' is itself ambiguous. Will there be supplemental 
guidance or definitions to avoid inevitable protests based on 
subjective interpretations of requirements descriptions? Suggest 
replacing the term ``clear and unambiguous to the general public'' with 
specific content elements required to satisfy the goals of providing 
appropriate information.
    Response: The phrase ``clear and unambiguous to the general 
public'' is being replaced with ``clear and concise language'' to 
alleviate some confusion

[[Page 34272]]

associated with the word ``unambiguous.'' This word is subject to 
interpretation by the reader. However, care must be taken not to tie 
the hands of the contracting officer with an overly restrictive 
description of the requirement that would result in limiting 
competition. The OMB Memorandum M-09-15 also advises that agencies 
should ensure that descriptions of procurements use language 
appropriate for a more general audience, avoiding industry-specific 
terms and acronyms without plain language explanations. This concept 
has been added to the FAR.
    4. Comment: The case requires contracting officers 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 (ARRA) funds. 
However, there is a disconnect between reporting in FedBizOpps and 
FPDS-Next Generation (NG) since FPDS-NG Contract Action Reports do not 
have a field for appropriation. A field for appropriation (e.g., ARRA 
funds) needs to be added to FPDS-NG. Otherwise, research in two 
separate systems is required to determine if an award is actually using 
ARRA funds.
    Response: Instructions for how to enter the Treasury Account Symbol 
(TAS) for the Recovery Act actions in FPDS are posted at the FPDS 
website and have been provided to every Federal agency through the OMB 
guidance. The TAS is being collected for the Recovery Act-funded 
awards. The full appropriation is not required by the statute or OMB 
guidance. The GSA is working on usability enhancements to FedBizOpps to 
allow for easier comparisons between the two systems.
    5. Comment: In the instructions regarding the applicability date, 
recommend adding modifications to this sentence as follows: ``This rule 
applies on or after the effective date of this rule to (1) 
solicitations issued, (2) contracts awarded, (3) orders issued under 
existing task and delivery order contracts, and (4) any monetary 
modifications as defined in the rule.''
    Response: The Councils have expanded the instructions regarding the 
applicability date to add a fourth action to include: ``modifications 
to orders issued under task and delivery order contracts.'' This 
addition will address modifications that are subject to the Recovery 
Act postaward reporting. Modifications to orders issued under new 
contracts are covered by paragraph (2) ``contracts awarded.''
    6. Comment: Recommend revising FAR 5.704(a)(2) to clearly indicate 
that modifications to task and delivery orders of $25,000 or more also 
require publication in FedBizOpps. This could be achieved by revising 
FAR 5.704(a)(2) to read as follows: ``In addition, notices of proposed 
contract actions are required for orders and modifications of orders of 
$25,000 or more, funded in whole or in part by the Recovery Act, which 
are issued under task or delivery orders.''
    Response: The Councils have not expanded the FAR to include posting 
preaward notices of modifications to orders; the FAR continues to cover 
modifications at the postaward notice stage.
    7. Comment: This new rule is silent on FAR section 5.205, Special 
situations. There is no discussion on posting special notices on R&D, 
A&E, OMB Circular A-76, and 8(a). Guidance is needed in this area 
considering that a portion of ARRA funding should be awarded to 
American Indians, which comprise the largest percentage of 8(a) firms.
    Response: Guidance is not necessary on this issue.

C. Changes to the FAR

    The final rule makes the following amendments:
     FAR 5.704(a)(2) to clarify that modifications of orders 
are not required to be publicized at the preaward stage.
     FAR 5.704(b) to require contracting officers to identify 
proposed contract actions, funded in whole or in part by the Recovery 
Act, by using the instructions that are at FAR 5.704(b) and available 
in the Recovery FAQs at the GPE https://www.fedbizopps.gov.
     FAR 5.704(c) and 5.705(a) to ensure that the description 
required by FAR 5.207(a)(16) clearly defines the elements of the 
requirement to the general public.
     FAR 5.705(b) to require contracting officers to include in 
the description of the contract action a statement specifically noting 
if the action was not awarded competitively, or was not fixed-price, or 
was neither competitive nor fixed-price.
    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.

D. 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 OMB guidance 
affects only internal Government operations and provides a strong 
preference for using small businesses for Recovery Act programs 
wherever possible. The final rule does not impose any additional 
requirements on small businesses.

E. 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 4, 5, 8, 13, and 16

    Government procurement.

    Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.

0
Accordingly, the interim rule published in the Federal Register at 74 
FR 14636 on March 31, 2009, is adopted as a final rule with the 
following changes:

PART 5--PUBLICIZING CONTRACT ACTIONS

0
1. The authority citation for 48 CFR part 5 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).
0
2. Amend section 5.704 by revising the section heading, paragraphs 
(a)(2), (b), and (c) to read as follows:


5.704  Publicizing preaward.

    (a) * * *
    (2) In addition, notices of proposed contract actions are required 
for orders exceeding $25,000, funded in whole or in part by the 
Recovery Act, which are issued under task or delivery order contracts. 
This does not include modifications to existing orders, but these 
modifications are covered postaward, see 5.705. 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 identify proposed contract actions, 
funded in whole or in part by the Recovery Act, by using the following 
instructions which are also available in the Recovery FAQs under 
``Buyers/Engineers'' at the Governmentwide Point of Entry (GPE) 
(https://www.fedbizopps.gov):
    (1) If submitting notices electronically via ftp or email, enter 
the word ``Recovery'' as the first word in the title field.

[[Page 34273]]

    (2) If using the GPE directly, select the ``yes'' radio button for 
the ``Is this a Recovery and Reinvestment Act action'' field on the 
``Notice Details'' form (Step 2) located below the ``NAICS Code'' 
field. In addition, enter the word ``Recovery'' as the first word in 
the title field.
    (c) In preparing the description required by 5.207(a)(16), use 
clear and concise language to describe the planned procurement. Use 
descriptions of the goods and services (including construction), that 
can be understood by the general public. Avoid the use of acronyms or 
terminology that is not widely understood by the general public.
0
3. Amend section 5.705 by revising the section heading, paragraph (a), 
the introductory text of paragraph (b), and paragraph (c) to read as 
follows:


5.705  Publicizing postaward.

* * * * *
    (a)(1) Publicize the award notice for any action exceeding 
$500,000, funded in whole or in part by the Recovery Act, including--
    (i) Contracts;
    (ii) Modifications to existing contracts;
    (iii) Orders which are issued under task or delivery order 
contracts; and
    (iv) Modifications to orders under task or delivery order 
contracts.
    (2) Contracting officers shall identify contract actions, funded in 
whole or in part by the Recovery Act, by using the following 
instructions which are also available in the Recovery FAQS under 
``Buyers/Engineers'' at the Governmentwide Point of Entry (GPE) 
(https://www.fedbizopps.gov):
    (i) If submitting notices electronically via ftp or email, enter 
the word ``Recovery'' as the first word in the title field.
    (ii) If using the GPE directly, select the ``yes'' radio button for 
the ``Is this a Recovery and Reinvestment Act action'' field on the 
``Notice Details'' form (Step 2) located below the ``NAICS Code'' 
field. In addition, enter the word ``Recovery'' as the first word in 
the title field.
    (3) In preparing the description required by 5.207(a)(16), use 
clear and concise language to describe the planned procurement. Use 
descriptions of the goods and services (including construction), that 
can be understood by the general public. Avoid the use of acronyms or 
terminology that is not widely understood by 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. Include in the 
description a statement specifically noting if the contract action was 
not awarded competitively, or was not fixed-price, or was neither 
competitive nor fixed-price. 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.
* * * * *
    (c) Contracting officers shall use the instructions available in 
the Recovery FAQs under ``Buyers/Engineers'' at the GPE (https://www.fedbizopps.gov) to identify actions funded in whole or in part by 
the Recovery Act.
[FR Doc. 2010-14220 Filed 6-15-10; 8:45 am]
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