[Federal Register Volume 84, Number 152 (Wednesday, August 7, 2019)]
[Rules and Regulations]
[Pages 38836-38838]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-16406]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 16 and 52
[FAC 2019-04; FAR Case 2017-020; Item I; Docket No. 2017-0020; Sequence
No. 1]
RIN 9000-AN53
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: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending 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-order and delivery-order
ombudsman.
DATES: Effective Date: September 6, 2019.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAC 2019-04, FAR Case
2017-020.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register on November 1, 2018 at 83 FR 54901, to implement a new clause
that provides the agency task-order and delivery-order ombudsman's
responsibilities and contact information for use in multiple-award
indefinite-delivery indefinite-quantity (IDIQ) contracts. FAR
16.504(a)(4)(v) required that the name, address, telephone number,
facsimile number, and email address of the agency's task-order and
delivery-order ombudsman be included in IDIQ solicitations and
contracts, if multiple
[[Page 38837]]
awards may result from the solicitation. As a result, several agencies
created an agency-level contract clause that provides this information
to contractors. This rule intends to minimize any impact on contractors
resulting from the variety of ways in which the information is
communicated by agencies; as such, this rule implements a standardized
method to provide the requisite information to contractors via a single
contract clause for use by all agencies. Three respondents submitted
comments on the proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. No changes were made to the final rule
as a result of public comments. Edits were made to the final rule for
accuracy and clarification. A discussion of the comments is provided as
follows:
A. Analysis of Public Comments
1. Comment: A respondent expressed support for the rule.
Response: The Councils acknowledge the support for the rule.
2. Comment: A respondent advised that an agency should be able to
designate its small business professional as the agency's task-order
and delivery-order ombudsman.
Response: It is the discretion of each agency as to whom they
designate as its task-order and delivery-order ombudsman. FAR
16.505(b)(8) only requires that the task-order and delivery-order
ombudsman be a senior agency official who is independent of the
contracting officer. This rule does not prohibit an agency's small
business professional from serving as the task-order and delivery-order
ombudsman.
3. Comment: A respondent suggested that the Councils consider
elaborating on the policies and procedures to be used by a task-order
and delivery-order ombudsman when evaluating and responding to a fair
opportunity complaint, as well as the other roles of a task-order and
delivery-order ombudsman that are outside of fair opportunity
considerations.
Response: The purpose of this rule is to establish a standard way
of providing contractors with the name and contact information for an
agency's task-order and delivery-order ombudsman. Each agency has the
discretion to develop the additional roles and responsibilities of, and
policies and procedures for, its task-order and delivery-order
ombudsman in execution of their statutory responsibilities; as such,
this rule avoids prescribing procedural policies or requirements to be
used by all Federal task-order and delivery-order ombudsmen.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule creates a new FAR clause 52.216-32, Task-Order and
Delivery-Order Ombudsman, which serves as a single clause available for
use by all agencies when awarding a multiple-award IDIQ contract and
provides contractors with the requisite contact information for the
agency task-order and delivery-order ombudsman.
This clause applies to solicitations and contracts for the
acquisition of commercial items, including commercially available off-
the-shelf (COTS) items, as defined at FAR 2.101. This rule provides
contractors with information on the basic responsibilities of and how
to contact the task-order and delivery-order ombudsman. Not applying
this guidance to contracts for the acquisition of commercial items,
including COTS items, would exclude contracts intended to be covered by
this rule and could prevent some contractors from receiving the
requisite information needed to address a concern with an agency's
task-order and delivery-order ombudsman. This rule does not apply to
contracts at or below the simplified acquisition threshold (SAT), as
the FAR prevents the use of the multiple-award approach when the total
estimated value of the contract is less than 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 have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601, et seq. The FRFA is summarized as follows:
DoD, GSA, and NASA are amending the FAR to implement a new
clause that provides information on the task-order and delivery-
order ombudsman for multiple-award indefinite-delivery indefinite-
quantity (IDIQ) contracts. FAR 16.504(a)(4)(v) required that the
name, address, telephone number, facsimile number, and email address
of the agency's task-order and delivery-order ombudsman be included
in IDIQ solicitations and contracts, if multiple awards may result
from the solicitation. As a result, several agencies created an
agency-level contract clause that provides this information to
contractors. This rule intends to minimize any impact on contractors
resulting from the variety of ways in which the information is
communicated by agencies; as such, this rule implements a
standardized method to provide the requisite information to
contractors via a single contract clause for use by all agencies. No
public comments were received in response to the initial regulatory
flexibility analysis.
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.,
because it is not creating any new requirements or changing any
existing requirements for contractors.
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 final rule
applies to all entities that do business with the Federal Government
and is not expected to have a significant impact on these entities,
regardless of business size.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for small businesses. The rule
minimizes any current impact on small entities by providing the name
and contact information of the agency task-order and delivery-order
ombudsman via a standardized method in multiple-award indefinite-
delivery indefinite-quantity contracts and subsequent task and
delivery orders, as necessary; as such, all entities awarded a
contract or order that is subject to this rule will be able to
locate the requisite task-order and delivery-order ombudsman's
information without having to look in various locations for the
information.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat has
submitted a copy of the FRFA to the Chief Counsel for Advocacy of the
Small Business Administration.
VII. Paperwork Reduction Act
The rule does not contain any information collection requirements
that
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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.
Janet M. Fry,
Director, Federal Acquisition Policy Division, Office of Government-
wide Policy.
Therefore, DoD, GSA, and NASA are issuing a final rule amending 48
CFR parts 16 and 52 as set forth below:
0
1. The authority citation for 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.
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 52.216-32, 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 the multiple-award
contract available for use by multiple agencies, the ordering
activity's contracting officer shall complete paragraph (d)(2) and
include Alternate I in the notice of intent to place an order, and in
the resulting order.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Add section 52.216-32 to read as follows:
52.216-32 Task-Order and Delivery-Order Ombudsman.
As prescribed in 16.506(j), use the following clause: Task-Order
and Delivery-Order Ombudsman (Sep 2019)
(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-order and delivery-order actions for
this contract and ensure the Contractor is afforded a fair
opportunity for consideration in the award of orders, consistent
with the procedures in the contract.
[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) Consulting an ombudsman does not alter or postpone the
timeline for any other process (e.g., protests).
(c) Before consulting with the Ombudsman, the Contractor is
encouraged to first address complaints with the Contracting Officer
for resolution. When requested by the Contractor, the Ombudsman may
keep the identity of the concerned party or entity confidential,
unless prohibited by law or agency procedure.
(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 activity.
(2) The ordering activity has designated the following task-order
and delivery-order Ombudsman for this order:
[The ordering activity's contracting officer to insert the name,
address, telephone number, and email address for the ordering
activity's Ombudsman or provide the URL address where this
information may be found.]
(3) Before consulting with the task-order and delivery-order
Ombudsman for the ordering activity, the Contractor is encouraged to
first address complaints with the ordering activity's Contracting
Officer for resolution. When requested by the Contractor, the task-
order and delivery-order Ombudsman for the ordering activity may
keep the identity of the concerned party or entity confidential,
unless prohibited by law or agency procedure.
(End of clause)
[FR Doc. 2019-16406 Filed 8-6-19; 8:45 am]
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