[Federal Register Volume 83, Number 212 (Thursday, November 1, 2018)]
[Proposed Rules]
[Pages 54901-54903]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-23889]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 16 and 52

[FAR Case 2017-020; Docket No. 2017-0020, Sequence No. 1]
RIN 9000-AN58


Federal Acquisition Regulation: Ombudsman for Indefinite Delivery 
Contracts

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

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to implement a new clause for use in 
multiple-award indefinite-delivery, indefinite-quantity contracts that 
provides information on the task- and delivery-order ombudsman.

DATES: Interested parties should submit comments to the Regulatory 
Secretariat Division at one of the addresses shown below on or before 
December 31, 2018 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2017-020 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by entering 
``FAR Case 2017-020'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search.'' Select the link ``Comment Now'' that corresponds 
with ``FAR Case 2017-020.'' Follow the instructions provided on the 
screen. Please include your name, company name (if any), and ``FAR Case 
2017-020'' on your attached document.
     Mail: General Services Administration, Regulatory-
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd 
floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite ``FAR case 2017-
020'' 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. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case 
2017-020.''

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement a 
new clause that provides the agency task- and delivery-order 
ombudsman's responsibilities and contact information for use in 
multiple-award indefinite-delivery, indefinite-quantity (IDIQ) 
contracts. 10 U.S.C. 2304c and 41 U.S.C. 4106 require agencies to 
appoint or designate a task- and delivery-order ombudsman who is 
responsible for reviewing complaints from contractors and ensuring that 
all of the contractors are afforded a fair opportunity to be considered 
for the award of an order, consistent with the procedures in the 
contract.
    To help implement the statutory requirement, FAR 16.504(a)(4)(v) 
requires the name, address, telephone number, facsimile number, and 
email address of the agency's task- and delivery-order ombudsman be 
included in IDIQ solicitations, if multiple awards may result from the 
solicitation, and multiple-award IDIQ contracts. As a result of the 
requirement at FAR 16.504, several agencies created an agency-level 
contract clause that provides this information to contractors. This 
rule provides a standardized way to provide the necessary information 
to contractors with a single contract clause for use by all agencies.

II. Discussion and Analysis

    This rule proposes to amend the FAR, as follows:
     FAR part 16 is revised to add a prescription that requires 
the use of the

[[Page 54902]]

new clause in solicitations and contracts when a multiple-award, IDIQ 
contract is contemplated.
     FAR part 52 is revised to add a new clause at FAR 52.216-
XX, Task-Order and Delivery-Order Ombudsman, that provides contractors 
with contact information (as a fill-in) for the agency ombudsman, 
explains the responsibilities of the ombudsman, and explains that 
contacting the ombudsman does not alter the timelines for other 
processes in the FAR.
     An Alternate I clause is added to the main clause for 
contracts used by multiple agencies. The Alternate I clause explains 
that for contracts used by multiple agencies, complaints from 
contractors concerning orders placed under multi-agency contracts are 
primarily reviewed by the task- and delivery-order ombudsman for the 
ordering agency and provides the offeror with the contact information 
for the ordering agency's ombudsman.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule proposes to create a new FAR clause 52.216-XX, Task-Order 
and Delivery-Order Ombudsman. The objective of the rule is to implement 
a single clause available for use by all agencies when awarding 
multiple-award IDIQ contracts that provides contractors with the 
requisite information for the agency task- and delivery-order 
ombudsman.
    DoD, GSA, and NASA plan to apply this clause to solicitations and 
contracts for the acquisition of commercial items, including COTS 
items, as defined at FAR 2.101. This rule does not impose any burden on 
contractors. Rather, this rule provides contractors with information on 
the responsibilities of and how to contact the ombudsman. Not applying 
this guidance to contracts for the acquisition of commercial items, 
including COTS items, could prevent some contractors from receiving the 
requisite information needed to address an issue with an agency's task- 
and delivery-order ombudsman. Consequently, DoD, GSA, and NASA plan to 
apply the rule to contracts for the acquisition of commercial items, 
including COTS items.
    The rule is not likely to apply to contracts at or below the SAT, 
since the value of multiple-award IDIQ contracts are usually above the 
SAT.

IV. 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.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this rule to 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. However, 
an Initial Regulatory Flexibility Analysis (IRFA) has been performed 
and is summarized as follows:

    The Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA) are 
proposing to revise the Federal Acquisition Regulation (FAR) to 
implement a new clause that provides the agency task- and delivery-
order ombudsman's responsibilities and contact information for use 
in multiple-award indefinite-delivery, indefinite-quantity (IDIQ) 
contracts. 10 U.S.C. 2304c and 41 U.S.C. 4106 require agencies to 
appoint or designate a task- and delivery-order ombudsman who is 
responsible for reviewing complaints from contractors and ensuring 
that all of the contractors are afforded a fair opportunity to be 
considered for the award of an order, consistent with the procedures 
in the contract.
    To help implement the statutory requirement, FAR 16.504(a)(4)(v) 
requires the name, address, telephone number, facsimile number, and 
email address of the agency's task- and delivery-order ombudsman be 
included in IDIQ solicitations and contracts, if multiple awards may 
result from the solicitation. As a result of the requirement at FAR 
16.504, several agencies created an agency-level contract clause 
that provides this information to contractors. This rule provides a 
standardized way to provide the necessary information to contractors 
with a single contract clause for use by all agencies.
    The objective of this proposed rule is to implement a single 
clause that provides contractors with the requisite information for 
the agency task- and delivery-order ombudsman and is available for 
use by all agencies when awarding a multiple-award IDIQ contract.
    DoD, GSA, and NASA do not expect this rule to 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. 
According to data from the Federal Procurement Data System, there 
were 6,207 new multiple-award contracts awarded in fiscal year 2017. 
Of the 6,207 new awards, 4,477 (72 percent) of these actions were 
awarded to 3,873 unique small business entities. The proposed rule 
applies to all entities who do business with the Federal Government 
and is not expected to have a significant impact on these entities, 
regardless of business size.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements.
    The proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules. There are no known significant alternative 
approaches to the proposed rule that would meet the proposed 
objectives.

    The Regulatory Secretariat Division 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 Division. 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 
consistent with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-020) in 
correspondence.

VII. 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 Parts 16 and 52

    Government procurement.

    Dated: October 29, 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 proposing to amend 48 CFR parts 
16 and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 16 and 52 continues to read 
as follows:

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

[[Page 54903]]

PART 16--TYPES OF CONTRACTS


16.504  [Amended]

0
2. Amend section 16.504 by removing paragraph (a)(4)(v) and 
redesignating paragraphs (a)(4)(vi) and (a)(4)(vii) as paragraphs 
(a)(4)(v) and (a)(4)(vi), respectively.
0
3. Amend section 16.506 by adding paragraph (j) to read as follows.


16.506  Solicitation provisions and contract clauses.

* * * * *
    (j) Insert the clause at 52.216-XX, Task-Order and Delivery-Order 
Ombudsman, in solicitations and contracts when a multiple-award, 
indefinite-delivery, indefinite-quantity contract is contemplated. Use 
the clause with its Alternate I when the contract will be available for 
use by multiple agencies (e.g., Governmentwide acquisition contracts or 
multi-agency contracts). When placing orders under a contract available 
for use by multiple agencies, the ordering agency's contracting officer 
shall complete paragraph (d)(2) and include Alternate I in the 
solicitation and any resulting order.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 52.216-XX to read as follows:


52.216-XX  Task-Order and Delivery-Order Ombudsman.

    As prescribed in 16.506(j), use the following clause:

Task-Order and Delivery-Order Ombudsman (Date)

    (a) In accordance with 41 U.S.C. 4106(g), the Agency has 
designated the following task-order and delivery-order Ombudsman for 
this contract. The Ombudsman must review complaints from the 
Contractor concerning all task- and delivery-order actions for this 
contract and ensure the Contractor is afforded a fair opportunity 
for consideration in the award of task- or delivery-orders, 
consistent with the procedures in the contract.

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(Contracting Officer to insert name, address, telephone number, and 
email address for the Agency Ombudsman or provide the URL address 
where this information may be found.)

    (b) Before consulting with the Ombudsman, the Contractor is 
encouraged to first address complaints with the Contracting Officer 
for resolution. When requested, the Ombudsman may keep the identity 
of the concerned party or entity confidential, unless prohibited by 
law or agency procedure.
    (c) Consulting an ombudsman does not alter or postpone the 
timeline for any other process (e.g., protests).


(End of clause)

    Alternate I. As prescribed in 16.506(j), add the following 
paragraph (d) to the basic clause.

    (d) Contracts used by multiple agencies.
    (1) This is a contract that is used by multiple agencies. 
Complaints from Contractors concerning orders placed under contracts 
used by multiple agencies are primarily reviewed by the task-order 
and delivery-order Ombudsman for the ordering agency.
    (2) The ordering agency has designated the following task-order 
and delivery-order Ombudsman for this order:
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(The ordering agency's contracting officer to insert the name, 
address, telephone number, and email address for the ordering 
agency's Ombudsman or provide the URL address where this information 
may be found.)


(End of clause)

[FR Doc. 2018-23889 Filed 10-31-18; 8:45 am]
 BILLING CODE 6820-EP-P