[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)]
[Rules and Regulations]
[Pages 19145-19146]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-09165]


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

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAC 2005-98; FAR Case 2017-007; Item I; Docket No. 2017-0007, Sequence 
No. 1]
RIN 9000-AN41


Federal Acquisition Regulation: Task- and Delivery-Order Protests

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

ACTION: Final rule.

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

SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to implement a section of the 
National Defense Authorization Act for Fiscal Year 2017 to raise the 
threshold for task-and delivery-order protests from $10 million to $25 
million (applicable to DoD, NASA, and the Coast Guard) and to repeal 
the sunset date for the authority to protest the placement of an order 
(for the other civilian agencies), which was also previously repealed 
by the GAO Civilian Task and Delivery Order Protest Authority Act of 
2016.

DATES: Effective: May 31, 2018.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Gray, Procurement Analyst, 
at 703-795-6328, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-98, FAR Case 
2017-007.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 835 of the National Defense Authorization Act for Fiscal 
Year 2017 (Pub. L. 114-328) was enacted December 23, 2016. Section 
835(a) amended 10 U.S.C. 2304c(e)(1)(B) to raise the threshold for 
task- and delivery-order protests from $10 million to $25 million 
(applicable to DoD, NASA, and the Coast Guard). Section 835(b) amended 
41 U.S.C. 4106(f) to repeal the sunset date of September 30, 2016, of 
the authority to protest the placement of an order (for the other 
civilian agencies). The sunset date was already repealed on December 
14, 2016, by the GAO Civilian Task and Delivery Order Protest Authority 
Act of 2016 (Pub. L. 114-260).

II. Discussion and Analysis

    This final rule amends FAR 16.505(a)(10) to raise the threshold for 
DoD, NASA, and the Coast Guard from $10 million to $25 million and 
remove the sunset date for the other civilian agencies.

III. Expected Cost Savings

    The rule is administrative in nature--it follows the statute 
exactly, raising a threshold and removing a sunset date.
    Currently, FAR 16.505(a)(10)(i) prohibits any protest in connection 
with the issuance or proposed issuance of an order under a task-order 
contract or delivery-order contract, except for a protest on the 
grounds that the order increases the scope, period, or maximum value of 
the contract; or the order is valued in excess of $10 million. This FAR 
change implements section 835 of the National Defense Authorization Act 
for Fiscal Year 2017 to--
     Raise the threshold at which a protest may be filed at the 
Government Accountability Office (GAO) for task or delivery orders from 
$10 million to $25 million, applicable only to DoD, NASA, and the Coast 
Guard; and
     Remove the sunset date (September 30, 2016) for the 
authority to protest the placement of an order for agencies other than 
DoD, NASA, and the Coast Guard.

Although, according to GAO, there are fewer than 10 protests per year 
of procurements between $10 million and $25 million, the higher 
threshold for protests of task or delivery orders for DoD, NASA, and 
the Coast Guard will result in savings for GAO and the affected 
Executive branch agencies, because there will no longer be protests of 
orders valued between $10 million and $25 million based on dollar 
value. While it is difficult to quantify, the lost benefit to 
interested parties who will lose the right to protest as a result of 
this rule is likely de minimis, given the historical data from GAO 
indicating a small number of protests in the affected dollar range. 
Further, there are some benefits to offerors or contractors who win 
awards and will no longer need to expend resources defending challenges 
to the award. Therefore, the net burden of this rule is estimated as 
less than zero, though the FAR Council is not able to monetize cost 
savings.

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not add any new solicitation provisions or clauses, 
or impact any existing provisions or clauses.

V. Publication of This Final Rule for Public Comment Is Not Required by 
Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is the Office of Federal Procurement 
Policy statute (codified at Title 41 of the United States Code). 
Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, 
regulation, procedure, or form (including an amendment or modification 
thereof) must be published for public comment if it relates to the 
expenditure of appropriated funds, and has either a significant effect 
beyond the internal operating procedures of the agency issuing the 
policy, regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because it follows the 
statute exactly, raising a threshold and removing a sunset date.

VI. 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

[[Page 19146]]

rule is not a major rule under 5 U.S.C. 804.

VII. Executive Order 13771

    Pursuant to E.O. 13771, this rule is a deregulatory action. 
Information on the expected cost savings of this action can be found in 
section III of the preamble.

VIII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section V. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required and none has been prepared.

IX. 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 Part 16

    Government procurement.

    Dated: April 25, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

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

PART 16--TYPES OF CONTRACTS

0
1. The authority citation for part 16 continues 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 revising paragraph (a)(10) to read as 
follows:


16.505   Ordering.

    (a) * * *
    (10)(i) No protest under subpart 33.1 is authorized in connection 
with the issuance or proposed issuance of an order under a task-order 
contract or delivery-order contract, except--
    (A) A protest on the grounds that the order increases the scope, 
period, or maximum value of the contract; or
    (B)(1) For agencies other than DoD, NASA, and the Coast Guard, a 
protest of an order valued in excess of $10 million (41 U.S.C. 
4106(f)); or
    (2) For DoD, NASA, or the Coast Guard, a protest of an order valued 
in excess of $25 million (10 U.S.C. 2304c(e)).
    (ii) Protests of orders in excess of the thresholds stated in 
16.505(a)(10)(i)(B) may only be filed with the Government 
Accountability Office, in accordance with the procedures at 33.104.
* * * * *
[FR Doc. 2018-09165 Filed 4-30-18; 8:45 am]
 BILLING CODE 6820-EP-P