Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 14559 

classified information) or create other 

security risks. 

* * * * * 

(5) Decision documentation for 

orders. (i) The contracting officer shall 

document in the contract file the 

rationale for placement and price of 

each order, including the basis for 

award and the rationale for any tradeoffs 

among cost or price and non-cost 

considerations in making the award 

decision. This documentation need not 

quantify the tradeoffs that led to the 

decision. 

(ii) The contract file shall also identify 

the basis for using an exception to the 

fair opportunity process (see paragraph 

(b)(2)). 

* * * * * 

PART 18—EMERGENCY 

ACQUISITIONS 

18.105 [Amended] 

■ 15. Amend section 18.105 by 

removing ‘‘(See 8.405–3(a)(4))’’ and 

adding ‘‘(see 8.405–3(a)(6))’’ in its place. 

PART 38—FEDERAL SUPPLY 

SCHEDULE CONTRACTING 

■ 16. Amend section 38.101 by revising 

the second sentence in paragraph (e) to 

read as follows: 

38.101 General. 

* * * * * 

(e) * * * The requirements of parts 5, 

6, and 19 apply at the acquisition 

planning stage prior to issuing the 

schedule solicitation and, generally, do 

not apply to orders and BPAs placed 

under resulting schedule contracts 

(except see 8.404). 

[FR Doc. 2011–5553 Filed 3–15–11; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 6, 15, and 19 

[FAC 2005–50; FAR Case 2009–038; Item 

III; Docket 2010–0095, Sequence 1] 

RIN 9000–AL55 

Federal Acquisition Regulation; 

Justification and Approval of SoleSource 8(a) Contracts 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing an interim rule amending the 

Federal Acquisition Regulation (FAR) to 

implement section 811 of the National 

Defense Authorization Act for Fiscal 

Year 2010. This FAR change encourages 

agencies to maximize the effective use 

of competition by making certain that 

the proper Justification and Approval 

(J&A) is obtained prior to award of 8(a) 

sole-source contracts over $20 million, 

as required by section 811. 

DATES: Effective Date: March 16, 2011. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before May 

16, 2011 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–50, FAR Case 

2009–038, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–038’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–038.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–038’’ on your attached 

document. 

• Fax: (202) 501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Hada Flowers, 1275 

First Street, NE., 7th Floor, Washington, 

DC 20417. 

Instructions: Please submit comments 

only and cite FAC 2005–50, FAR Case 

2009–038, 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. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Anthony Robinson, Procurement 

Analyst, at (202) 501–2658, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–50, FAR Case 2009–038. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA are issuing an 

interim rule amending the FAR, to 

implement section 811 of the National 

Defense Authorization Act for Fiscal 

Year 2010 (Pub. L. 111–84), enacted 

October 28, 2009. Section 811 requires 

a J&A prior to awarding a sole-source 

contract in an amount over $20 million 

under the 8(a) program (15 U.S.C. 

637(a)). This written J&A must be 

approved by an appropriate official and, 

after award, made public. Authorized by 

15 U.S.C. 637(a), the 8(a) program 

enables contract awards to be made to 

small business concerns determined 

eligible for the 8(a) program by the 

Small Business Administration (SBA). 

The requirement for a J&A is not a 

ceiling or a ‘‘cap’’ on sole-source awards 

over $20 million for 8(a) contractors. 

The statute requires execution of a J&A 

documenting the reasons for making the 

award on a sole-source basis rather than 

competing among the small businesses 

in the 8(a) program. Prior to the 

enactment of section 811, a sole-source 

award of a new contract made using the 

8(a) contracting authority did not 

require a J&A, regardless of the dollar 

value, and the new statute does not 

institute any requirement for a J&A for 

sole-source 8(a) awards that are less 

than or equal to $20 million. 

II. Discussion and Analysis 

Section 811 became effective on the 

date of enactment, October 28, 2009. 

Section 811 addresses requirements for 

the J&A of sole-source contracts over 

$20 million under the 8(a) smallbusiness development program. 

The Federal Acquisition Regulatory 

Council (FAR Council) held three Tribal 

consultation and outreach meetings to 

discuss rulemaking associated with 

section 811. 

The meetings took place during 

October 2010 in Washington, DC; 

Albuquerque, New Mexico; and 

Fairbanks, Alaska (see the meeting 

notice that was published in the Federal 

Register on August 31, 2010 at 75 FR 

53269). Transcripts of the meetings are 

available at http://www.acq.osd.mil/ 

dpap/dars/section811_docs.html. 

After the meetings, DoD, GSA, and 

NASA weighed the costs and benefits of 

publishing this rule as proposed or 

interim. The rule is being published as 

interim, rather than proposed, because 

the rule is implementing a statutory 

mandate, and the statutory date for 

issuance of regulations has already 

passed. Because this is an interim rule, 

the public will have another 

opportunity to comment. These 

additional comments could result in 

further changes in the final rule. 

A frequently heard comment at the 

October meetings was a request that the 

FAR not use the 12 elements currently 

required at FAR 6.303–2 for J&As for 

less than full-and-open competition, but 

instead limit the elements to be 

addressed to the five elements listed in 


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section 811(b), which are set forth as 

follows: 

(1) A description of the needs of the 

agency concerned for the matters 

covered by the contract; 

(2) A specification of the statutory 

provision providing the exception from 

the requirement to use competitive 

procedures in entering into the contract; 

(3) A determination that the use of a 

sole-source contract is in the best 

interest of the agency concerned; 

(4) A determination that the 

anticipated cost of the contract will be 

fair and reasonable; and 

(5) Such other matters as the head of 

the agency concerned shall specify. 

DoD, GSA, and NASA have drafted 

the interim FAR rule to adopt only these 

five elements. DoD, GSA, and NASA did 

not adopt the suggestions raised in the 

October meetings (1) not to include the 

fair and reasonable price determination 

and (2) not to allow agency heads to 

address any matter, without specific 

limits (the fifth element set out in 

section 811). A determination that the 

anticipated cost of a contract will be fair 

and reasonable is a universal 

requirement in Federal contracting; 

including the requirement in the J&A 

would be sensible, even if it were not 

specifically required by section 811. 

A common issue raised in the 

meetings was that the fifth element, 

‘‘Such other matters as the head of the 

agency concerned shall specify,’’ was 

too broad. DoD, GSA, and NASA 

determined that it made sense to allow 

agency heads to identify other factors 

supporting the decision to make a solesource 8(a) award. By retaining the 

wording from the statute, agency heads 

retain the discretion to consider such 

factors as Indian economic development 

or meeting agency small business 

contracting goals—both factors that 

participants in the October meetings 

offered as legitimate reasons to make a 

sole-source award. 

Commenters at the meetings and in 

the written comments also requested 

that the ‘‘over $20 million’’ threshold for 

requiring a J&A be applied only to the 

base year of a contract. For example, if 

a requirement was for $75 million, with 

a base year estimate of $15 million and 

four one-year $15 million options, 

commenters stated their belief that the 

requirement should not need a J&A 

because the base-year amount was not 

over $20 million. DoD, GSA, and NASA 

have declined to use the base year 

amount as the basis for determining the 

applicability of the J&A requirement. 

The FAR (1.108(c)) establishes the 

following rule: 

• Dollar thresholds. Unless otherwise 

specified, a specific dollar threshold for the 

purpose of applicability is the final 

anticipated dollar value of the action, 

including the dollar value of all options. If 

the action establishes a maximum quantity of 

supplies or services to be acquired or 

establishes a ceiling price or establishes the 

final price to be based on future events, the 

final anticipated dollar value must be the 

highest final priced alternative to the 

Government, including the dollar value of all 

options. 

Unless there is a specific reason, such 

as a statutory requirement to establish 

the dollar value of a procurement using 

a different method, agencies will not 

deviate from this FAR convention. 

Commenters also requested that the 

requirement for the agency head to 

approve the J&A be delegated down to 

a much lower level, such as the 

contracting officer. FAR 1.108(b) states 

the following: 

• Delegation of authority. Each authority is 

delegable unless specifically stated 

otherwise. * * * 

J&As are delegable, but there are 

limits on the redelegation authority 

based on the dollar value of the 

procurement; these are stated at FAR 

6.304. The competition advocate for the 

procuring activity and the head of the 

procuring activity are included in the 

approval authorities to ensure the J&A is 

prepared and coordinated properly 

within the agency. Unless there is a 

specific reason, agencies will not 

deviate from the FAR convention at 

FAR 6.304. 

A commenter was concerned about 

whether ‘‘fair and reasonable price’’ 

equates to ‘‘fair market price.’’ The FAR 

provides various provisions to address 

the commenter’s concern. The various 

techniques that contracting officers may 

use to determine that a price is fair and 

reasonable are described at FAR 15.404– 

1, Proposal analysis techniques. With 

regard to 8(a) contracts, FAR 19.202– 

6(b) states that contracting officers shall 

follow the procedures at FAR 19.807, 

which reads in pertinent part as follows: 

Estimating fair market price. 

• The contracting officer shall estimate the 

fair market price of the work to be performed 

by the 8(a) contractor. 

• In estimating the fair market price for an 

acquisition other than those covered in 

paragraph (c) of this section, the contracting 

officer shall use cost or price analysis and 

consider commercial prices for similar 

products and services, available in-house 

cost estimates, data (including certified cost 

or pricing data) submitted by the SBA or the 

8(a) contractor, and data obtained from any 

other Government agency. 

As required by the FAR, agencies will 

continue to use the existing regulations 

to evaluate prices offered for 8(a) 

contracts over $20 million. 

The changes made by the interim rule 

are summarized as follows: 

(1) Cross references to the 

requirement for a J&A when the 

procurement is a sole-source 8(a) over 

$20 million are added at FAR 6.204, 

entitled ‘‘Section 8(a) competition,’’ FAR 

6.302–5, entitled ‘‘Authorized or 

required by statute,’’ and in 19.808–1, 

entitled ‘‘Sole source’’. 

(2) FAR 6.302–5, which sets forth the 

situations in which other than full-andopen competition is authorized or 

required by statute, has been modified 

to clarify that, while 8(a) sole-source 

awards are still authorized, they now 

must be supported by a J&A prior to 

award when the total estimated contract 

amount is over $20 million. 

(3) Circumstances requiring a J&A for 

other than full-and-open competition 

have been expanded to include a new 

FAR 6.303–1(b) that includes the 

section 811(a) prohibition against 

awarding a sole-source 8(a) contract 

over $20 million unless a written J&A is 

approved by the appropriate official and 

made public after award. 

(4) FAR 6.303–2, Content, (of the J&A) 

has a new paragraph that lists the five 

required elements for the sole-source 

8(a) J&A from section 811. 

(5) FAR 19.808–1(a), Sole source, was 

revised to inform the contracting officer 

that the SBA may not accept for 

negotiation a sole-source 8(a) contract 

over $20 million unless the requesting 

agency has completed a J&A in 

accordance with the requirements at 

FAR 6.303. 

Other requirements of section 811 

were reviewed by DoD, GSA, and NASA 

and determined to be fully covered by 

the existing FAR. The specific areas 

reviewed included— 

(1) The definition of a ‘‘covered 

procurement’’ at section 811(c)(1). 

Review determined that covered 

procurements, for the purposes of 

section 811, are those made under the 

SBA’s Section 8(a) program. Therefore, 

it was not necessary to define and use 

the term ‘‘covered procurement’’ in this 

rule. 

(2) The definition of ‘‘head of an 

agency’’ at section 811(c)(2). Review of 

the statutory references in this section 

determined that the FAR-wide 

definition of this term at FAR 2.101 

could be used. 

(3) The definition of ‘‘appropriate 

official’’ at section 811(c)(3). The 

statutory references provided in this 

section equate to those currently in FAR 

6.304, Approval of the Justification. 

(4) Requirement for synopses of 

proposed procurement actions. The 

existing FAR synopsis requirements at 

subpart 5.2, Synopses of Proposed 


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Contract Actions, were reviewed. No 

change is proposed to FAR 5.202, 

Exceptions, or FAR 5.205, Special 

situations, because the statute did not 

modify the existing 8(a) synopsis 

requirements. 

(5) Requirement at section 811(a)(3)to 

make the J&A and related information 

available to the public. This statutory 

requirement matches the J&A 

publication requirements added by the 

National Defense Authorization Act for 

Fiscal Year 2008, section 844, entitled 

‘‘Public Disclosure of Justification and 

Approval Documents for 

Noncompetitive Contracts’’ (FAR Case 

2008–003). The latter FAR case added 

the requirement to FAR 6.305, 

Availability of the Justification. Any 

J&A issued for an 8(a) sole-source 

contract award over $20 million will 

require posting in accordance with FAR 

6.305, but no further change to that 

section is necessary. 

Various commenters at the public 

meetings questioned whether 

contracting officers will be trained on 

the content of this rule implementing 

section 811. DoD, GSA, and NASA have 

prepared and submitted documentation 

to the Defense Acquisition University 

and the Federal Acquisition Institute to 

coordinate the appropriate changes in 

training curricula. 

III. Executive Order 12866 

This is a significant regulatory action 

and, therefore, was subject to review 

under Section 6(b) of Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1993. This rule is 

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

IV. Regulatory Flexibility Act 

DoD, GSA, and NASA do not expect 

this interim rule to have a significant 

negative 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 the rule does not impose any 

requirements on the majority of small 

businesses. Therefore, an Initial 

Regulatory Flexibility Analysis has not 

been performed. It is recognized that a 

very small number of businesses that 

have been awarded 8(a) contracts over 

the $20 million threshold may be 

impacted. However, the rule does not 

limit the number of contracts or dollars 

awarded to these businesses. The rule 

may also indirectly benefit the 9,165, 

currently certified section 8(a) firms by 

improving their likelihood of a contract 

award through increased competition, 

but this impact is similarly considered 

not significant. 

Also, the FAR Council has limited 

flexibility in this case as the rule 

implements in the FAR statutory 

requirements mandated by section 811, 

Justification and Approval of SoleSource Contracts, of the National 

Defense Authorization Act for Fiscal 

Year 2010. 

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 the rule in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite 5 U.S.C. 610, 

(FAC 2005–50, FAR Case 2009–038) in 

correspondence. 

V. Paperwork Reduction Act 

The interim rule implements section 

811, which prohibits the award of a 

sole-source contract in an amount over 

$20 million under the 8(a) program 

authority (15 U.S.C. 637(a)) without the 

contracting officer first obtaining a 

written J&A approved by an appropriate 

official and making public the J&A and 

related information. This additional 

paperwork requirement is internal to the 

Government and 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). 

VI. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because the National 

Defense Authorization Act for Fiscal 

Year 2010 (Pub. L. 111–84) was enacted 

on October 28, 2009. Section 811 

required the FAR to be revised no later 

than 180 days after enactment, or April 

26, 2010. Absent implementation of this 

interim rule, section 811 will not be 

implemented in the FAR and agencies 

will not be compliant with this 

provision. However, pursuant to 41 

U.S.C. 1707 and FAR 1.501–3(b), DoD, 

GSA, and NASA will consider public 

comments received in response to this 

interim rule in the formation of the final 

rule. 

List of Subjects in 48 CFR Parts 6, 15, 

and 19 

Government procurement. 

Dated: March 4, 2011. 

Millisa Gary, 

Acting Director, Office of Governmentwide 

Acquisition Policy. 

Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 6, 15, and 19 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 6, 15, and 19 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 42 U.S.C. 2473(c). 

PART 6—COMPETITION 

REQUIREMENTS 

■ 2. Amend section 6.204 by adding a 

sentence to the end of paragraph (b) to 

read as follows: 

6.204 Section 8(a) competition. 

* * * * * 

(b) * * * (But see 6.302–5 and 6.303– 

1 for sole source 8(a) awards over $20 

million.) 

■ 3. Amend section 6.302–5 by revising 

paragraphs (b)(4) and (c)(2) to read as 

follows: 

6.302–5 Authorized or required by statute. 

* * * * * 

(b) * * * 

(4) Sole source awards under the 8(a) 

Program (15 U.S.C. 637), but see 6.303 

for requirements for justification and 

approval of sole-source 8(a) awards over 

$20 million. (See subpart 19.8.) 

* * * * * 

(c) * * * 

(2) Contracts awarded using this 

authority shall be supported by the 

written justifications and approvals 

described in 6.303 and 6.304, except 

for— 

(i) Contracts awarded under (a)(2)(ii) 

or (b)(2) of this subsection; 

(ii) Contracts awarded under (a)(2)(i) 

of this subsection when the statute 

expressly requires that the procurement 

be made from a specified source. 

(Justification and approval requirements 

apply when the statute authorizes, but 

does not require, that the procurement 

be made from a specified source); or 

(iii) Contracts less than or equal to 

$20 million awarded under (b)(4) of this 

subsection. 

* * * * * 

■ 4. Amend section 6.303–1 by 

redesignating paragraphs (b), (c), and (d) 

as paragraphs (c), (d), and (e), 

respectively; and adding a new 

paragraph (b) to read as follows: 


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14562 Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 

6.303–1 Requirements. 

* * * * * 

(b) The contracting officer shall not 

award a sole-source contract under the 

8(a) authority (15 U.S.C. 637(a)) for an 

amount exceeding $20 million unless— 

(1) The contracting officer justifies the 

use of a sole-source contract in writing 

in accordance with 6.303–2; 

(2) The justification is approved by 

the appropriate official designated at 

6.304; and 

(3) The justification and related 

information are made public after award 

in accordance with 6.305. 

* * * * * 

■ 5. Amend section 6.303–2 by— 

■ a. Redesignating paragraphs (a) and 

(b) as paragraphs (b) and (c), 

respectively; 

■ b. Adding a new paragraph (a); 

■ c. Revising newly redesignated 

paragraph (b) introductory text; and 

■ d. Adding a new paragraph (d). 

The added and revised text reads as 

follows: 

6.303–2 Content. 

(a) Each justification shall contain 

sufficient facts and rationale to justify 

the use of the specific authority cited. 

(b) As a minimum, each justification, 

except those for sole-source 8(a) 

contracts over $20 million (see 

paragraph (d) of this section), shall 

include the following information: 

* * * * * 

(d) As a minimum, each justification 

for a sole-source 8(a) contract over $20 

million shall include the following 

information: 

(1) A description of the needs of the 

agency concerned for the matters 

covered by the contract. 

(2) A specification of the statutory 

provision providing the exception from 

the requirement to use competitive 

procedures in entering into the contract 

(see 19.805–1). 

(3) A determination that the use of a 

sole-source contract is in the best 

interest of the agency concerned. 

(4) A determination that the 

anticipated cost of the contract will be 

fair and reasonable. 

(5) Such other matters as the head of 

the agency concerned shall specify for 

purposes of this section. 

6.304 [Amended] 

■ 6. Amend section 6.304 by removing 

from paragraph (a)(1) ‘‘6.303–2(a)(12)’’ 

and adding ‘‘6.303–2(b)(12)’’ in its place. 

PART 15—CONTRACTING BY 

NEGOTIATION 

15.607 [Amended] 

■ 7. Amend section 15.607 by removing 

from paragraph (b)(2) ‘‘6.303–2(b)’’ and 

adding ‘‘6.303–2(c)’’ in its place. 

PART 19—SMALL BUSINESS 

PROGRAMS 

■ 8. Amend section 19.808–1 by 

redesignating paragraphs (a) and (b) as 

paragraphs (b) and (c), respectively; and 

adding a new paragraph (a) to read as 

follows: 

19.808–1 Sole source. 

(a) The SBA may not accept for 

negotiation a sole-source 8(a) contract 

that exceeds $20 million unless the 

requesting agency has completed a 

justification in accordance with the 

requirements of 6.303. 

* * * * * 

[FR Doc. 2011–5554 Filed 3–15–11; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 10, 16, 44, and 52 

[FAC 2005–50; FAR Case 2008–007; Item 

IV; Docket 2010–0086, Sequence 1] 

RIN 9000–AL50 

Federal Acquisition Regulation; 

Additional Requirements for Market 

Research 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA have 

adopted as final, with changes, the 

interim rule amending the Federal 

Acquisition Regulation (FAR) to 

implement section 826, Market 

Research, of the National Defense 

Authorization Act for Fiscal Year 2008. 

Section 826 requires the head of an 

agency to take appropriate steps to 

ensure that any prime contractor of a 

contract (or task order or delivery order) 

in an amount in excess of $5 million for 

the procurement of items other than 

commercial items engages in market 

research as necessary before making 

purchases. 

DATES: Effective Date: April 15, 2011. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Lori Sakalos, Procurement Analyst, at 

(202) 208–0498, for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–50, FAR 

Case 2008–007. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

75 FR 34277 on June 16, 2010, to 

implement section 826, Market 

Research, of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). Section 826 

establishes additional requirements in 

subsection (c) of 10 U.S.C. 2377. As a 

matter of policy, these requirements are 

extended to all executive agencies. 

Specifically, the head of the agency 

must conduct market research before 

issuing an indefinite-delivery indefinitequantity task or delivery order for a 

noncommercial item in excess of the 

simplified acquisition threshold. In 

addition, a prime contractor with a 

contract in excess of $5 million for the 

procurement of items other than 

commercial items is required to conduct 

market research before making 

purchases that exceed the simplified 

acquisition threshold for or on behalf of 

the Government. Three respondents 

submitted 16 comments on the interim 

rule. 

II. Discussion/Analysis 

Public Comments: A discussion of the 

comments and the changes made to the 

rule as a result of those comments are 

provided as follows: 

A. Purpose 

1. Comment: One respondent stated 

that the guidance does not appear to 

explain the end purpose of the market 

research. Another respondent, however, 

concluded that the FAR states the 

purpose of the market research twice, in 

FAR 44.402(b) and 10.001(a)(3). The 

second respondent stated that the 

purpose for conducting market research 

is ‘‘clearly described in Part 10 and there 

is no reason to repeat that same 

language elsewhere in the FAR.’’ 

Response: The Defense Acquisition 

Regulations Council and the Civilian 

Agency Acquisition Council (the 

Councils) agree with the second 

respondent. FAR part 10 ‘‘prescribes 

policies and procedures for conducting 

market research to arrive at the most 

suitable approach to acquiring, 

distributing, and supporting supplies 

and services’’ (FAR 10.000). FAR 

10.001(a)(3) lists the ways in which the 


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