[Federal Register Volume 85, Number 128 (Thursday, July 2, 2020)]
[Rules and Regulations]
[Pages 40075-40076]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-12766]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 52
[FAC 2020-07; FAR Case 2018-022; Item V; Docket No. FAR-2019-0010;
Sequence No. 1]
RIN 9000-AN80
Federal Acquisition Regulation: Orders Issued via Fax or
Electronic Commerce
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 a Federal
Acquisition Regulation (FAR) clause to permit the issuance of task or
delivery orders via facsimile or electronic commerce and clarify when
an order is considered ``issued'' when using these methods.
DATES: Effective: August 3, 2020.
FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement
Analyst, at (202) 501-1448 or [email protected] for clarification
of content. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat Division at (202) 501-
4755. Please cite FAC 2020-07, FAR Case 2018-022.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 84 FR 44270 on August 23, 2019, to update a clause to
permit the issuance of task or delivery orders via fax or electronic
commerce and clarify when an order is considered ``issued'' when using
these methods. Two respondents submitted comments on the proposed rule.
FAR clause 52.216-18, Ordering, currently states that task or
delivery orders may be issued orally, by fax, or electronic commerce
only if authorized in the contract schedule. If mailed, task or
delivery orders are considered ``issued'' when the Government puts the
order in the mail. The clause is included in solicitations and
contracts when an indefinite-delivery definite-quantity, requirements,
or indefinite-delivery indefinite-quantity contract is contemplated.
As part of today's business environment, the Government and Federal
contractors frequently use email, fax (via computer, online service, or
machine), or other electronic commerce methods to communicate with one
another. In an effort to reflect current business practices and
maintain speed and efficiency in the ordering process, this rule
updates FAR clause 52.216-18 to no longer require a separate
authorization in the contract to use electronic commerce or fax to
issue task or delivery orders. The rule also identifies when a task or
delivery order is considered ``issued'' when using such methods. As a
result, contracting officers will no longer need to include
supplemental ordering language in the contract when anticipating the
use of fax or electronic commerce to issue task or delivery orders.
Ordering information will be located in one place in the contract. A
common understanding of when a task or delivery order is considered
issued, in such situations, will be applied Governmentwide.
As task or delivery orders are not issued orally as frequently as
other issuance methods and the use of such a method is dependent upon
the particular circumstances of the procurement, the authority to issue
orders orally must still be separately authorized under the contract
and is not being amended by this 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. Both comments were outside of the scope
of this rule and no changes were made to the final rule as a result of
public comments.
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 final rule does not create any new provisions or clauses, nor
does it change the applicability or burden of any existing provisions
or clauses included in solicitations and contracts valued at or below
the SAT, or for commercial items, including COTS items.
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:
The Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA) are
amending a Federal Acquisition Regulation (FAR) clause to
automatically permit the issuance of task or delivery orders via fax
or electronic commerce, without additional authorization text in the
contract and to clarify when an order is considered to be ``issued''
when using these methods. The objective of the rule is to update the
clause to reflect current business practices and maintain speed and
efficiency when issuing task and delivery orders under a contract.
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. The rule simply formalizes a
current business practice. The Government does not collect data on
the total number of task and delivery orders issued by mail, fax,
and/or electronic commerce. However, the Federal Procurement Data
System (FPDS) provides the following information for fiscal year
2018:
The Federal Government awarded approximately 17,690 new
indefinite-delivery indefinite-quantity, indefinite-delivery
definite-quantity, and requirements contracts; of which
approximately 62 percent were awarded to approximately 7,420 unique
small business entities.
This rule does not impose any Paperwork Reduction Act reporting,
recordkeeping, or other compliance requirements on any small
entities. There are no known significant alternative approaches to
the rule that would meet the stated objectives.
Interested parties may obtain a copy of the FRFA from the Regulatory
Secretariat Division. The Regulatory Secretariat Division has submitted
a
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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 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 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth
below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 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.
0
2. Amend section 52.216-18 by--
0
a. Revising the date of the clause;
0
b. Revising paragraph (c); and
0
c. Adding paragraph (d).
The revisions and addition read as follows:
52.216-18 Ordering.
* * * * *
Ordering (Aug 2020)
* * * * *
(c) A delivery order or task order is considered ``issued''
when--
(1) If sent by mail (includes transmittal by U.S. mail or
private delivery service), the Government deposits the order in the
mail;
(2) If sent by fax, the Government transmits the order to the
Contractor's fax number; or
(3) If sent electronically, the Government either--
(i) Posts a copy of the delivery order or task order to a
Government document access system, and notice is sent to the
Contractor; or
(ii) Distributes the delivery order or task order via email to
the Contractor's email address.
(d) Orders may be issued by methods other than those enumerated
in this clause only if authorized in the contract.
(End of clause)
[FR Doc. 2020-12766 Filed 7-1-20; 8:45 am]
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