[Federal Register Volume 77, Number 173 (Thursday, September 6, 2012)]
[Proposed Rules]
[Pages 54872-54873]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-21991]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 8, 9, and 52

[FAR Case 2009-024; Docket 2009-024; Sequence 2]
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; correction.

-----------------------------------------------------------------------

SUMMARY: This document corrects the preamble to a proposed rule 
published in the Federal Register of June 14, 2011, regarding 
Prioritizing Sources of Supplies and Services for Use by the 
Government. This document adds an Initial Regulatory Flexibility 
Analysis which has been determined to be necessary since the initial 
publication of the proposed rule.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addressees shown below on or 
before October 9, 2012 to be considered in the formation of the final 
rule.

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 searching for ``FAR Case 
2009-024.'' 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: Ms. Patricia Corrigan, Procurement 
Analyst, at 202-208-1963, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2009-024.

SUPPLEMENTARY INFORMATION: DoD, GSA, and NASA published a proposed rule 
in the Federal Register at 76 FR 34634 on June 14, 2011, 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. The 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 mandatory sources and non-
mandatory sources for consideration. Public comments were received 
requesting the publication of Initial Regulatory Flexibility Analysis 
(IRFA) as part of the rule. Based on the comments, DoD, GSA and NASA 
determined it necessary since the initial publication of the proposed 
rule to issue an IRFA. Comments on the rest of the proposed rule will 
be addressed with the issuance of the final rule.

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., because the Initial Regulatory 
Flexibility Analysis (IRFA) is summarized as follows:

    The objective of this rule is to clarify the order of preference 
for sources that must be considered, and to distinguish them from 
sources that should be considered where an agency is unable to 
satisfy requirements for supplies and services from mandatory 
sources.
    The basis 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. Based upon issues 
brought forward in the decision, it was determined that FAR Part 8 
should be amended to eliminate confusion about the use of mandatory 
versus non-mandatory sources. Two sections of the FAR are being 
amended to list only mandatory Government supply sources, and a new 
section is being added to encourage agencies to give consideration 
to using certain existing non-mandatory sources to leverage agency 
buying power and achieve administrative efficiencies that reduce 
costs and produce savings for our taxpayers. No new mandatory 
sources are proposed for consideration, only existing sources were 
included for informational purposes. The clarification is being made 
to assist both the public and the Federal contracting community by 
allowing them to better understand and distinguish between sources 
that are mandatory for use and those that are not mandatory. The 
non-mandatory sources (e.g., Federal Supply Schedules, 
Governmentwide acquisition contracts, multi-agency contracts, 
blanket purchase agreements (BPAs) under Federal Supply Schedule 
contracts (e.g., Federal Strategic Sourcing Initiative (FSSI) 
agreements)) in the new section are existing sources intended for 
use by multiple agencies, and existed prior to promulgation of the 
proposed change to the FAR. The proposed rule only reflects the 
practice and use of the existing non-mandatory sources throughout 
the Government. The existing non-mandatory sources are being listed 
prior to commercial sources, but agencies remain free to compete 
their requirements among commercial sources of supply, where it is 
in their best interest to meet their needs through an open-market 
procurement.
    Because the rule clarifies regulations in FAR Part 8 on the use 
of existing mandatory and non-mandatory sources, it is estimated 
that the rule will apply to all entities doing business with the 
Government, regardless of business size. Based on Federal 
Procurement Data System reporting data, in Fiscal Year 2011, a 
Governmentwide total of 193,515 new awards were made to small 
businesses and other than small businesses. Of that total, 130,704 
new award actions were made to small business entities. The 
remaining 62,811 award actions were made to other than small 
businesses. This clarification, consistent with the GAO decision in 
the Murray-Benjamin Electric Company protest (B-298481), clarifies 
existing FAR text regarding existing mandatory and non-mandatory 
sources. No new sources were added to the FAR and all contractors 
are encouraged to participate in the mandatory and non-mandatory 
source programs.
    This rule does not add any new compliance requirements or 
information collection requirements. The rule does not duplicate, 
overlap, or conflict with any other Federal rules.
    No acceptable alternatives were determined. By providing 
clarification, the rule reduces the probability that applicable 
statutes, regulation, and policy will be misinterpreted or 
misapplied at the possible economic detriment of small entities.

    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. The Councils invite 
comments from small business concerns and other interested parties on

[[Page 54873]]

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 (FAR Case 2009-024) in 
correspondence.

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

    Government procurement.

    Dated: August 31, 2012.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2012-21991 Filed 9-5-12; 8:45 am]
BILLING CODE 6820-EP-P