[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]
BILLING CODE 6820-EP-P