[Federal Register Volume 75, Number 173 (Wednesday, September 8, 2010)]
[Proposed Rules]
[Pages 54560-54561]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-22346]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 53

[FAR Case 2009-029; Docket 2010-0096, Sequence 1]
RIN 9000-AL72


Federal Acquisition Regulation; Clarification of Standard Form 
26--Award/Contract

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (the Councils) are proposing to amend 
the Federal Acquisition Regulation (FAR) to revise (a) the header for 
blocks 17 and 18 and (b) block 18 of the Standard Form (SF) 26 to 
clarify that block 18 should not be used when awarding a negotiated 
procurement and should only be checked when awarding a sealed-bid 
contract.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat on or before November 8, 2010 to be considered 
in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAR Case 2009-029 by any of 
the following methods:
     Regulations.gov:http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2009-029'' under the heading ``Enter Keyword or ID'' and selecting 
``Search''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2009-029''. Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2009-029'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street, NW., Room 4041, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2009-
029, 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 O. Jackson, Procurement 
Analyst, at (202) 208-4949, for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAR Case 2009-
029.

SUPPLEMENTARY INFORMATION:

A. Background

    This case was initiated after an agency identified an inconsistency 
in the use of the SF 26 by contracting officers. Although block 18 of 
the form is intended for use only with sealed-bid procurements, 
contracting officers have used block 18 with negotiated procurements, 
which has had unintended negative consequences in certain contract 
disputes.
    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 based on instances where contracting officers have 
mistakenly checked block 18 when awarding negotiated, not sealed bid, 
contracts. Such use has created the potential for disputes in 
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 revising the header for blocks 17 and 18 
and block 18 of the form will eliminate the issue. In addition to the 
recent enhancements to the instructions for use of the form, at FAR 
53.214 and 53.215-1, the Councils propose to add ``sealed bid'' to the 
title of block 18, change ``offer'' to ``bid'' each time it occurs in 
block 18, and add a new sentence at the end of the block stating that 
block 18 should only be checked when awarding a sealed-bid contract.
    These changes will not prohibit the use of the SF 26 for awarding 
negotiated procurements; it will only prohibit the use of block 18 of 
the SF 26 when awarding negotiated procurements.
    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 Councils do not expect this proposed 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 rule does not impose any additional requirements on small 
businesses, but rather clarifies an area open to confusion. Therefore, 
an Initial Regulatory Flexibility Analysis has not been performed. The 
Councils will consider comments from small entities concerning the 
affected FAR part 53 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. (FAR Case 2009-029), in all correspondence. The Councils 
will also 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 (FAR Case 2009-029), in all correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management

[[Page 54561]]

and Budget under 44 U.S.C. chapter 35, et seq.

List of Subjects in 48 CFR Part 53

    Government procurement.

    Dated: August 27, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 53 as 
set forth below:

PART 53--FORMS

    1. The authority citation for 48 CFR part 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).


Sec.  53.214  [Amended]

    2. Amend section 53.214 in paragraph (a) by removing ``SF 26 (APR 
2008)'' and adding ``SF 26 (Date)'' in its place.

Sec.  53.215-1  [Amended]

    3. Amend section 53.215-1 in paragraph (a) by removing ``SF 26 (APR 
2008)'' and adding ``SF 26 (Date)'' in its place.
[FR Doc. 2010-22346 Filed 9-7-10; 8:45 am]
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