[Federal Register Volume 76, Number 128 (Tuesday, July 5, 2011)]
[Rules and Regulations]
[Pages 39238-39240]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-16675]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAC 2005-53; FAR Case 2011-015; Item IV; Docket 2011-0015, Sequence 1]
RIN 9000-AM08


Federal Acquisition Regulation; Extension of Sunset Date for 
Protests of Task and Delivery Orders

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

ACTION: Interim rule.

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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement section 825 of the 
Ike Skelton National Defense Authorization Act for Fiscal Year 2011. 
The statute extends the sunset date for protests against the award of 
task or delivery orders by DoD, NASA, and the Coast Guard from May 27, 
2011, to September 30, 2016.

DATES: Effective Date: July 5, 2011.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before September 6, 2011 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-53, FAR Case 2011-
015, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by inputting ``FAR Case 
2011-015'' under the heading ``Enter Keyword or ID'' and selecting 
``Search.'' Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2011-015.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2011-015'' on your attached document.
     Fax: (202) 501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), Attn: Hada Flowers, 1275 First

[[Page 39239]]

Street, NE., 7th Floor, Washington, DC 20417.
    Instructions: Please submit comments only and cite FAC 2005-53, FAR 
Case 2011-015, 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: Ms. Deborah Lague, Procurement 
Analyst, at (202) 694-8149, for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2010-53, FAR 
Case 2011-015.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are publishing this interim rule amending the 
FAR to implement section 825 of the Ike Skelton National Defense 
Authorization Act for Fiscal Year 2011 (Pub. L. 111-383, enacted 
January 7, 2011). Section 825 amends 10 U.S.C. 2304c(e) to extend the 
sunset date for protests against the award of task and delivery orders 
from May 27, 2011, to September 30, 2016, but only for Title 10 
agencies, i.e., DoD, NASA, and the Coast Guard. There has been no 
comparable change to Title 41, so the sunset date for protests against 
the award of task and delivery orders by other agencies remains May 27, 
2011. With this change, contractors will no longer be able to protest 
task or delivery orders awarded by agencies other than DoD, NASA, and 
the Coast Guard. There is no effect on Government automated systems.

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 not a significant regulatory action and, therefore, was not 
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

    The change may 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.. The Initial Regulatory 
Flexibility Analysis (IRFA) is summarized as follows:

    This rule was initiated to implement section 825 of the Ike 
Skelton National Defense Authorization Act for Fiscal Year 2011 
(Pub. L. 111-383), enacted January 7, 2011. Section 825 amends 10 
U.S.C. 2304c(e) to extend the sunset date for protests against the 
award of task or delivery orders by DoD, NASA, and the Coast Guard 
from May 27, 2011, to September 30, 2016.
    Prior to the National Defense Authorization Act for Fiscal Year 
2008, there was no authority for protests against the award of task 
or delivery orders under indefinite-delivery contracts. That 
statute, however, amended Titles 10 and 41 to allow protests against 
the award, or proposed award, of a task or delivery order by any 
Federal agency if (a) the protest is on the grounds that the order 
increases the scope, period, or maximum value of the contract, or 
(b) the order is valued at over $10 million.
    This protest authority has been in effect for the past 2\1/2\ 
years. Section 825 extended the sunset date for Title 10 agencies 
(DoD, NASA, and the Coast Guard). However, there has not been a 
similar change to the Title 41 authority, so the sunset date remains 
May 27, 2011, for all other agencies.
    The authority to file protests against the award of task or 
delivery orders is relatively new, and there is little data 
available, as such protests may be filed with the agency or General 
Accountability Office (GAO). Section 843 of Pub. L. 110-181 gave the 
Comptroller General of the United States the exclusive jurisdiction 
of a protest of an order valued in excess of $10 million. Data on 
agency-level protests is not compiled outside the agency concerned, 
so we had to base our estimate on the total number of protests filed 
at the GAO in Fiscal Years 2009 and 2010. The data was extracted 
from GAO's latest report to the Congress. Only Fiscal Years 2009 and 
2010 protest numbers were used because the authority to protest 
against task or delivery orders did not exist prior to that time.
    Offerors can protest to the agency or to the GAO. Assuming that 
one-half of all protests are filed with the GAO and the other half 
are filed with the agency, then the average number of protests filed 
per fiscal year would be 4,300 (see below):
[GRAPHIC] [TIFF OMITTED] TR05JY11.011

    Protests may be filed against the award of contracts as well as 
certain task or delivery orders. There are few prohibitions on the 
grounds for protests against the award of a contract. However, 
protests against the award of a task or delivery order are limited 
to (a) a protest on the grounds that the order increases the scope, 
period, or maximum value of the contract; or (b) a protest of an 
order valued in excess of $10 million. Therefore, it is reasonable 
to assume that less than 50 percent of the total number of protests 
filed is against the award of a task or delivery order. A generous 
estimate is approximately one-fourth, or 1,075. Likewise, only a 
percentage of the protests against the award of a task or delivery 
order are made by small businesses. Even if we assume that 
percentage to be one-half, then the number of protests filed by 
small businesses against the award of a task or delivery order is 
estimated to be 539.
[GRAPHIC] [TIFF OMITTED] TR05JY11.012

    The number 16 represents the number of small business task or 
delivery order protests sustained in a fiscal year. However, this 
number is representative of protests against awards by all 
Government agencies, not just DoD, NASA, and the Coast Guard. If the

[[Page 39240]]

assumption is made that half of the protests sustained are on DoD, 
NASA, or Coast Guard task or delivery orders, then it can be 
estimated that extending the sunset date for protests against task 
or delivery order awards by Title 10 agencies will result in an 
additional 8 awards to small businesses per fiscal year that the 
protest authority remains in effect.
    There is no requirement for small entities to submit any 
information under this provision. Therefore, no professional skills 
are necessary on the part of small entities for compliance, and the 
cost to small entities associated with this provision is $0.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    There are no practical alternatives that will accomplish the 
objectives of the interim rule, i.e., implementation of a statutory 
mandate.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. 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 the subpart 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 2005-53, FAR 
Case 2011-015) in correspondence.

IV. Paperwork Reduction Act

    The interim 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).

V. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because the Ike Skelton National Defense Authorization Act 
for Fiscal Year 2011 (Pub. L. 111-383) was enacted on January 7, 2011, 
and requires the extension of the sunset date for the affected agencies 
to be published in the FAR prior to the expiration of the previous 
sunset date, May 27, 2011. However, pursuant to 41 U.S.C. 1707 and FAR 
1.501-3(b), DoD, GSA, and NASA will consider public comments received 
in response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Part 16

    Government procurement.

    Dated: June 28, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as set forth 
below:

PART 16--TYPES OF CONTRACTS

0
1. The authority citation for 48 CFR part 16 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 16.505 by revising paragraph (a)(9)(ii) to read as 
follows:


16.505  Ordering.

* * * * *
    (a) * * *
    (9) * * *
    (ii) The authority to protest the placement of an order under this 
subpart expires on September 30, 2016, for DoD, NASA and the Coast 
Guard (10 U.S.C. 2304a(d) and 2304c(e)), and on May 27, 2011, for other 
agencies (41 U.S.C. 4103(d) and 4106(f)).
* * * * *
[FR Doc. 2011-16675 Filed 7-1-11; 8:45 am]
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