[Federal Register Volume 76, Number 114 (Tuesday, June 14, 2011)]
[Proposed Rules]
[Pages 34634-34635]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-14650]





48 CFR Parts 8, 9, and 52

[FAR Case 2009-024; Docket 2011-0086; Sequence 1]
RIN 9000-AM07

Federal Acquisition Regulation; Prioritizing Sources of Supplies 
and Services for Use by the Government

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

ACTION: Proposed rule.


SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to limit the section of the FAR addressing 
the priorities for use of Government supply sources to a discussion of 
the mandatory Government sources of supplies and services. Also, a new 
section is added to encourage agencies to give priority consideration 
to using certain sources, despite the fact that the use of the listed 
sources is not mandatory.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addressees shown below on or 
before August 15, 2011 to be considered in the formation of the final 

ADDRESSES: Submit comments in response to FAR Case 2009-024 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2009-024'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2009-024.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2009-024'' on your attached document.
     Fax: (202) 501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), Attn: Hada Flowers, 1275 First Street, NE., 7th 
Floor, Washington, DC 20417.
    Instructions: Please submit comments only and cite FAR Case 2009-
024, 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. William Clark, Procurement 
Analyst, at (202) 219-1813 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-


I. Background

    DoD, GSA, and NASA are proposing to amend the FAR part 8. FAR part 
8 requires Federal agencies to satisfy their requirements for supplies 
and services from or through a list of sources in order of priority. 
This proposed rule would amend FAR part 8 by revising FAR 8.000, 8.002, 
8.003, and 8.004, eliminating outdated categories, and distinguishing 
between Government sources (e.g., Federal Supply Schedules (FSS)) and 
private-sector sources.
    The impetus for this proposed rule is the Government Accountability 
Office (GAO) decision in the protest of Murray-Benjamin Electric 
Company, B-298481, 2006 CPD 129, September 7, 2006 at (http://www.gao.gov/decisions/bidpro/298481.pdf). As a result of this GAO 
decision, clarification was needed, in FAR part 8, on the use and 
consideration of FSS contracts before commercial sources in the open 
    The proposed rule amends FAR 8.002 as follows: The title is 
revised, as appropriate, to indicate the section establishes the 
priorities for mandatory Government sources. The term ``Mandatory 
Federal Supply Schedules'' is removed. ``Optional Use Federal Supply 
Schedules'' is re-named ``Federal Supply Schedules'' and is proposed to 
be moved to a new section (FAR 8.004) as a non-mandatory source. 
Commercial sources, currently listed under FAR 8.002(a), and Federal 
Prison Industries, Inc., listed as a source for services at FAR 
8.002(a)(2), would also be moved to the new section as non-mandatory 
sources because neither one is a ``mandatory Government source.''
    Additionally, the title at FAR 8.003 is amended to indicate that 
the list is of mandatory sources, but recognize that they are not all 
Government sources. Also, the word ``supplies'' would be deleted from 
the title because these sources also provide services.
    A new section, FAR 8.004, Use of other sources, is proposed to be 
added to list non-mandatory sources that agencies are encouraged to 
consider after first considering the mandatory sources listed at FAR 
8.002 and 8.003. This section highlights existing contracts intended 
for use by multiple agencies (e.g., Federal Supply Schedules, 
Governmentwide acquisition contracts (GWACs), and multi-agency 
contracts (MACs)) and ordering instruments intended for use by multiple 
agencies, such as blanket purchase agreements (BPAs) under Federal 
Supply Schedule contracts (e.g., Federal Strategic Sourcing Initiative 
(FSSI) agreements). The existing contracts and instruments are not 
listed in any order of priority, and separate paragraphs distinguish 
supplies from services. When obtaining services, agencies are 
encouraged to consider the same sources listed for supplies under FAR 
8.004, with the addition of Federal Prison Industries, Inc. as another 
non-mandatory source for services pursuant to FAR subpart 8.6. Agencies 
would be encouraged to consider these sources before satisfying 
requirements for supplies and services from commercial sources in the 
open market. The proposed FAR 8.004 would also provide a cross-
reference to FAR 5.601, where the Web site for the Governmentwide 
database of contracts and other procurement instruments intended for 
use by multiple agencies via the Internet

[[Page 34635]]

at http://www.contractdirectory.gov is provided.
    Conforming changes are proposed at FAR 9.405-1 to delete the words 
``optional use''; and at FAR 52.208-9 to correct the cross-reference to 
the clause prescription.

II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and 
Review, dated September 30, 1993. This rule is not a major rule under 5 
U.S.C. 804.

III. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this 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 clarifies existing regulations, in FAR part 8, on the 
use of existing mandatory and non-mandatory sources.
    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. DoD, GSA, and NASA invite comments from small business 
concerns and other interested parties on the expected impact of this 
rule on small entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the 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 2009-024), 
in correspondence.

IV. Paperwork Reduction Act

    The rule does not contain any information collection requirements 
that require the approval of the Office of Management and Budget under 
the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 8, 9, and 52

    Government procurement.

    Dated: June 8, 2011.
Millisa Gary,
Acting Director, Federal Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 8, 9, 
and 52 as set forth below:

    1. The authority citation for 48 CFR parts 8, 9, and 52 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).

    2. Revise section 8.000 to read as follows:


8.000  Scope of part.

    This part deals with prioritizing sources acquisition of supplies 
and services for use by the Government.
    3. Amend section 8.002 by--
    a. Revising the section heading;
    b. Removing from the introductory text of paragraph (a) ``sources'' 
and adding ``mandatory Government sources'' in its place;
    c. Removing paragraphs (a)(1)(vi), (a)(1)(vii), and (a)(1)(viii); 
    d. Revising paragraph (a)(2).
    The revised text reads as follows:

8.002  Priorities for use of mandatory Government sources.

    (a) * * *
    (2) Services. Services which are on the Procurement List maintained 
by the Committee for Purchase From People Who Are Blind or Severely 
Disabled (see subpart 8.7).
* * * * *

8.003  Use of other mandatory sources.

    4. Amend section 8.003 by revising the section heading as set forth 
    5. Redesignate section 8.004 as section 8.005 and add a new section 
8.004 to read as follows:

8.004  Use of other sources.

    Where an agency is unable to satisfy requirements for supplies and 
services from the mandatory sources listed in 8.002 and 8.003, agencies 
are encouraged to consider satisfying requirements from or through the 
non-mandatory sources listed in paragraph (a) of this section before 
considering the non-mandatory sources listed in paragraph (b) of this 
    (a)(1) Supplies. Federal Supply Schedules, Governmentwide 
acquisition contracts, multi-agency contracts, and any other 
procurement instruments intended for use by multiple agencies, 
including blanket purchase agreements (BPAs) under Federal Supply 
Schedule contracts (e.g., Federal Strategic Sourcing Initiative (FSSI) 
agreements accessible at http://www.gsa.gov/fssi (see also 5.601)).
    (2) Services. In addition to the sources listed in paragraph (a)(1) 
of this section, agencies are encouraged to consider Federal Prison 
Industries, Inc. (see subpart 8.6).
    (b) Commercial sources (including educational and non-profit 
institutions) in the open market.

8.402  [Amended]

    6. Amend section 8.402 by removing from paragraph (a) ``(see 
8.002)'' and adding ``(see 8.004)'' in its place.


9.405-1  [Amended]

    7. Amend section 9.405-1 by removing from paragraph (b)(2) 
``optional use''.


52.208-9  [Amended]

    8. Amend section 52.208-9 by removing from the introductory 
paragraph ``8.004'' and adding ``8.005'' in its place.

[FR Doc. 2011-14650 Filed 6-13-11; 8:45 am]