[Federal Register Volume 77, Number 144 (Thursday, July 26, 2012)]
[Rules and Regulations]
[Pages 44062-44063]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-17730]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAC 2005-60; FAR Case 2012-007; Item III; Docket 2012-0007, Sequence 
1]
RIN 9000-AM26


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 sections of the Ike 
Skelton National Defense Authorization Act for Fiscal Year 2011, and 
the National Defense Authorization Act for Fiscal Year 2012. These 
statutes extend the sunset date for protests against the award of task 
or delivery orders from May 27, 2011, to September 30, 2016.

DATES: Effective date: July 26, 2012.
    Comment date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before September 24, 2012 to be 
considered in the formation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-60, FAR Case 2012-
007, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2012-007''. Select the link ``Submit a Comment'' that corresponds with 
``FAR Case 2012-007.'' Follow the instructions provided at the ``Submit 
a Comment'' screen. Please include your name, company name (if any), 
and ``FAR Case 2012-007'' 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 FAC 2005-60, FAR 
Case 2012-007, 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 2005-60, FAR Case 2012-
012.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 76 FR 39238 on July 5, 2011, entitled ``Extension of Sunset 
Date for Protests of Task and Delivery Orders'' (FAC 2005-53, FAR Case 
2011-015). The rule implemented section 825 of the Ike Skelton National 
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2011 (Pub. L. 
111-383, enacted January 7, 2011). The rule extended the sunset date 
for protests of task and delivery orders valued in excess of $10 
million for Title 10 agencies, namely DoD, NASA, and the Coast Guard. 
The rule did not extend the sunset date for Title 41 agencies as there 
was no comparable change to Title 41 at that time.
    Subsequent to the publication of the interim rule under FAR Case 
2011-015, section 813 of the NDAA for FY 2012 (Pub. L. 112-81, enacted 
December 31, 2011) made comparable changes to Title 41 to extend the 
sunset date for protests against the award of task and delivery orders 
from May 27, 2011, to September 30, 2016. In order to accomplish the 
statutory changes for both Title 10 and Title 41, FAR Case 2011-015 is 
not being issued as a final rule and is instead being renumbered and 
incorporated into this second interim rule, FAR Case 2012-007.

II. Discussion and Analysis

A. Summary of Significant Changes

    FAR 16.505(a)(10)(ii) is amended to extend, for Title 41 agencies, 
the authority to protest the placement of task and delivery orders 
valued in excess of $10 million from May 27, 2011, to September 30, 
2016.

B. Analysis of Public Comment

    One public comment was received for FAR Case 2011-015. The public 
comment and response are provided as follows:
    Comment on FAR Case 2011-015: The respondent indicated that the 
sunset date for protest of orders should extend to Title 41 agencies, 
not just Title 10 agencies.
    Response: The rule has been changed to incorporate and implement 
the later-enacted section 813 of the NDAA for FY 2012 to extend the 
sunset date for the protest of task and delivery orders from May 27, 
2011, to September 30, 2016, for Title 41 agencies.

III. 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.

[[Page 44063]]

IV. 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:

    The objective of this rule is to implement section 825 of the 
NDAA for FY 2011, which extended the sunset date for Title 10 
agencies and section 813 of the NDAA for FY 2012, which extended the 
sunset date for Title 41 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 
Government Accountability Office (GAO). GAO has 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; therefore estimates are based on the total number 
of protests filed at the GAO in FYs 2009, 2010 and 2011. The data 
was extracted from GAO's report to the Congress for those fiscal 
years.
    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 6,700 (see below):

Fiscal Year 2009 protests to GAO.............................      2,000
Fiscal Year 2010 protests to GAO.............................      2,300
Fiscal Year 2011 protests to GAO.............................      2,400
                                                              ----------
                                                                   6,700
 Divided by                                                            3
 Average annual GAO protests                                       2,233
 Multiplied by                                                         2
                                                              ----------
    Estimated total number of protests.......................      4,467
 

    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 1,117. 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 559.

 protests of task/delivery orders by small                  559
 businesses..................................................
% of protests sustained......................................      x .03
                                                              ----------
 of task/delivery orders protests sustained.........         17
 

    The number 17 represents the number of small business task or 
delivery order protests sustained in a fiscal year. This number is 
representative of protests against awards by all Government 
agencies.
    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 Regulatory Secretariat will be submitting a copy of the Initial 
Regulatory Flexibility Analysis (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 subparts 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 2005-60, FAR Case 
2012-007) in correspondence.

V. 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).

VI. 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 statutory authority for Title 41 offerors to file 
certain bid protests lapsed May 27, 2011, but was reinstated in the 
National Defense Authorization Act for Fiscal Year 2012, effective 
December 31, 2011. Similar authority for Title 10 offerors was extended 
by a January 7, 2011, statute, and has already been implemented in the 
FAR. If this rule is not published on an interim basis, offerors could 
be misinformed about their legal right to file certain protests. 
Disappointed Title 41 offerors would be unclear on whether to file bid 
protests of civilian agency task and delivery order awards at either 
the GAO or the Court of Federal Claims. This interim rule clarifies 
that GAO has exclusive jurisdiction of a protest of an order valued in 
excess of $10 million. 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: July 16, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 16 as follows:

PART 16--TYPES OF CONTRACT

0
1. The authority citation for 48 CFR part 16 is revised to read as 
follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.


0
2. Amend section 16.505 by removing from paragraph (a)(10)(i) 
introductory text ``under Subpart 33.1'' and adding ``under subpart 
33.1'' in its place; and revising paragraph (a)(10)(ii) to read as 
follows:


16.505  Ordering.

    (a) * * *
    (10) * * *
    (ii) The authority to protest the placement of an order under 
(a)(10)(i)(B) of this section expires on September 30, 2016 (10 U.S.C. 
2304a(d), 10 U.S.C. 2304c(e), 41 U.S.C. 4103(d), and 41 U.S.C. 
4106(f)).
* * * * *
[FR Doc. 2012-17730 Filed 7-25-12; 8:45 am]
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