[Federal Register Volume 78, Number 19 (Tuesday, January 29, 2013)]
[Rules and Regulations]
[Pages 6187-6188]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-01747]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAC 2005-65; FAR Case 2012-007; Item II; 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: Final rule.

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SUMMARY: DoD, GSA, and NASA are adopting as final, without change, 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: January 29, 2013.

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 2005-65, FAR Case 2012-
007.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA originally 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 was 
not issued as a final rule and was instead incorporated into an interim 
rule under FAR Case 2012-007.
    DoD, GSA, and NASA published an interim rule in the Federal 
Register at 77 FR 44062 on July 26, 2012, entitled ``Extension of 
Sunset Date for Protests of Task and Delivery Orders'' (FAC 2005-60, 
FAR Case 2012-007). 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) and section 813 of the NDAA 
for FY 2012 (Pub. L. 112-81, enacted December 31, 2011). The rule 
extended the sunset date for protests of task and delivery orders 
valued in excess of $10 million from May 27, 2011, to September 30, 
2016.

II. Discussion and Analysis

    No public comments were received; therefore the Defense Acquisition 
Regulations Council and the Civilian Agency Acquisition Council are 
finalizing the interim rule without change.

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

[[Page 6188]]

flexibility. The Office of Information and Regulatory Affairs (OIRA) 
has deemed that 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, and that this 
rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    The changes 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 Final Regulatory Flexibility 
Analysis (FRFA) is summarized as follows.

    This rule implements section 825 of the NDAA for FY 2011 and 
section 813 of the NDAA for FY 2012, which extended the sunset date 
for protests of task and delivery orders valued in excess of $10 
million from May 27, 2011, to September 30, 2016.
    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 are 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.
    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 4,466 (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
                                                                 -------
Per Fiscal Year; Estimated total number of protests.............   4,466
 

    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 businesses..     559
% 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.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

V. Paperwork Reduction Act

    The final 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 Part 16

    Government procurement.

    Dated: January 23, 2013.
Laura Auletta,
Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

Interim Rule Adopted as Final Without Change

0
Accordingly, the interim rule amending 48 CFR part 16, which was 
published in the Federal Register at 77 FR 44062 on July 26, 2012, 
(which incorporated an interim rule published in the Federal Register 
at 76 FR 39238 on July 5, 2011), is adopted as final without change.

[FR Doc. 2013-01747 Filed 1-28-13; 8:45 am]
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