[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Rules and Regulations]
[Pages 14548-14559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5553]



[[Page 14548]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 8, 16, 18, and 38

[FAC 2005-50; FAR Case 2007-012; Item II; Docket 2011-0081, Sequence 
01]
RIN 9000-AL93


Federal Acquisition Regulation; Requirements for Acquisitions 
Pursuant to Multiple-Award Contracts

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

ACTION: Interim rule.

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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement section 863 of the 
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009. 
Section 863, entitled ``Requirements for Purchase of Property and 
Services Pursuant to Multiple-Award Contracts,'' mandates enhanced 
competition for orders placed under multiple-award contracts, including 
GSA's Federal Supply Schedules (FSS). If an individual order over the 
simplified acquisition threshold does not follow the section 863 
competitive procedures, section 863 requires that a notice of, and the 
determination to waive competition for, the order be published in 
FedBizOpps within 14 days after award. These FAR changes support the 
Administration's commitment to strengthened competition and increased 
transparency.

DATES: Effective Date: May 16, 2011.
    Applicability Date: (1) The changes in this rule apply to 
solicitations issued and contracts awarded on or after May 16, 2011 
(see FAR 1.108(d)(1)). (2) The changes also apply to orders issued on 
or after the effective date of this regulation, without regard to 
whether the underlying contracts were awarded before May 16, 2011. (3) 
The changes apply to Blanket Purchase Agreements (BPAs) established 
under FSS contracts on or after May 16, 2011. (4) The ordering 
procedures for BPAs in FAR 8.405-3(c) are mandatory for BPAs 
established under FSS contracts on or after May 16, 2011 and 
discretionary for BPAs established under FSS contracts prior to the 
effective date.
    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 2007-
012, by any of the following methods:
    <bullet> Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2007-012'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search.'' Select the link ``Submit a Comment'' that 
corresponds with ``FAR Case 2007-012.'' Follow the instructions 
provided at the ``Submit a Comment'' screen. Please include your name, 
company name (if any), and ``FAR Case 2007-012'' on your attached 
document.
    <bullet> Fax: (202) 501-4067.
    <bullet> 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 2007-012, 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. William Clark, Procurement 
Analyst, at (202) 219-1813, 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 2007-012.

SUPPLEMENTARY INFORMATION:

I. Background

A. Overview

    This interim rule amends the FAR to implement section 863 of the 
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 
(Pub. L. 110-417) enacted on October 14, 2008. Section 863 mandated the 
development and publication of regulations in the FAR to enhance 
competition for the award of orders placed under multiple-award 
contracts. Section 863 specified enhancements that include--
    <bullet> Strengthening competition rules for placing orders under 
FSS and other multiple-award contracts to ensure both the provision of 
fair notice to contract holders and the opportunity for contract 
holders to respond (similar to the procedures implemented for section 
803 of the National Defense Authorization Act for Fiscal Year 2002 
(Pub. L. 107-107)); and
    <bullet> Providing notice in FedBizOpps of certain orders placed 
under multiple-award contracts, including FSS.
    <bullet> The legislation builds on recommendations offered by the 
Acquisition Advisory Panel, which was established by section 1423 of 
the Services Acquisition Reform Act of 2003, (Pub. L. 108-136). The 
final report of the Acquisition Advisory Panel, issued in January 2007, 
can be accessed at http://acquisition.gov/comp/aap/index.html.
    For each individual purchase of property or services in excess of 
the simplified acquisition threshold (SAT) that is made under a 
multiple-award contract, section 863 requires the provision of fair 
notice of intent to make a purchase (including a description of the 
work to be performed and the basis on which the selection will be made) 
to all contractors offering such property or services under the 
multiple-award contract. In addition, the statute requires that all 
contractors responding to the notice be afforded a fair opportunity to 
make an offer and have that offer fairly considered by the purchasing 
official. A notice may be provided to fewer than all contractors 
offering such property or services under a multiple-award contract if 
the notice is provided to as many contractors as practicable. When 
notice is provided to fewer than all the contractors, a purchase cannot 
be made unless--
    <bullet> Offers were received from at least three qualified 
contractors; or
    <bullet> A contracting officer determines in writing that no 
additional qualified contractors were able to be identified despite 
reasonable efforts to do so.
    These requirements may be waived on the basis of a justification, 
including a written determination identifying the statutory basis for 
an exception to fair opportunity, that is prepared and approved at the 
levels specified in the FAR.
    In considering regulatory changes to strengthen the use of 
competition in task- and delivery-order contracts, the Defense 
Acquisition Regulations Council and Civilian Agency Acquisition Council 
(Councils) sought to develop amendments that take increased and more 
effective advantage of competition, consistent with the general 
competition principles addressed in the President's March 4, 2009, 
Memorandum on Government Contracting (available at http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-Subject-Government), while still 
preserving the efficiencies of these contract vehicles. For this 
reason, the

[[Page 14549]]

rule addresses several issues that are not expressly addressed in 
section 863, such as competition for the establishment and placement of 
orders under FSS BPAs. The changes, however, are not applicable to BPAs 
awarded pursuant to FAR part 13 or to orders awarded under FAR 
procedures other than those in FAR subparts 8.4 and 16.5.
    In particular, this interim rule--
    <bullet> Revises the ``fair opportunity'' competition requirements 
in FAR 16.505(b) (applicable to multiple-award task- and delivery-order 
contracts, other than FSS contracts) to require that, for orders 
exceeding the SAT, agencies (i) provide fair notice of intent to make 
the purchase to all contract holders, (ii) afford all contract holders 
a fair opportunity to submit offers and have those offers fairly 
considered, and (iii) justify an exception to fair opportunity with 
appropriate documentation and approval;
    <bullet> Amends the procedures for ordering supplies and services 
under FSS contracts at FAR 8.405-1 and 8.405-2, when the order is above 
the SAT, to require that ordering activities--

--Receive at least three quotes, as a general matter, that can fulfill 
the requirement and fairly consider all quotes received; and
--Document the file to explain efforts made to obtain quotes from at 
least three FSS contractors that can fulfill the requirements if fewer 
than three quotes were received and e-Buy, an electronic FSS 
requirements posting tool, was not used;

    <bullet> Establishes new competition procedures at FAR 8.405-3 for 
creating BPAs under FSS contracts and placing orders under the BPAs 
that--

--Create a preference for multiple-award BPAs, rather than single-award 
BPAs, generally modeled after the preference for multiple-award task- 
and delivery-order contracts in FAR 16.505;
--Allow single-award BPAs if (i) the agency considered multiple awards 
and the decision to make a single award is explained and documented in 
the acquisition plan and contract file, (ii) the estimated value of the 
BPA does not exceed $100 million (including any options), with limited 
exception, and (iii) the ordering activity prepares a written 
determination before exercising an option and secures the approval of 
its competition advocate;
--Establish competition requirements for placing orders under multiple-
award BPAs that require the ordering activity to (i) provide a Request 
for Quotation (RFQ) to all BPA holders offering the required supplies 
or services under the BPA for orders over the SAT that includes a 
description of the supplies to be delivered or the services to be 
performed and the basis upon which the selection will be made, (ii) 
afford all BPA holders an opportunity to submit a quote, (iii) fairly 
consider all responses received, and (iv) make award in accordance with 
the selection procedures; and
--Restrict the circumstances when a BPA may be established based on a 
limited-source justification (see also FAR 8.405-6(a)(1)(i));

    <bullet> Amends the contract award synopsis provisions at FAR 5.301 
(with conforming changes at FAR 5.406, 8.405-6(a)(2), and 
16.505(b)(2)(ii)(D)) to require publication and posting of actions 
supported by exceptions to fair opportunity at FAR 16.505(b)(2) for 
non-FSS task- and delivery-order contracts and limited-sources 
justifications at FAR 8.405-6 for FSS contracts, except when disclosure 
would compromise national security or create other security risks;
    <bullet> Clarifies that ordering activities may seek a price 
reduction under FSS contracts at any time and that they shall seek a 
price reduction when placing an order or establishing a BPA that 
exceeds the SAT (see FAR 8.405-4); and
    <bullet> Adds language explaining that the protest procedures found 
at FAR subpart 33.1 are applicable to the issuance of an order or the 
establishment of a BPA against an FSS contract.
    Additional background on changes to strengthen competition rules 
under GSA's FSS is provided in the following section B.

B. Strengthening Competition Rules Under FSS

    1. FAR 8.405-1, Ordering procedures for supplies, and services not 
requiring a statement of work.
    Current language at FAR 8.405-1 provides competition guidance and 
ordering procedures for three categories of purchases:
    <bullet> Orders at or below the micro-purchase threshold.
    <bullet> Orders exceeding the micro-purchase threshold but not 
exceeding the maximum-order threshold identified in the schedule 
contract.
    <bullet> Orders exceeding the maximum-order threshold.
    This interim rule retains three categories of purchases but no 
longer employs the maximum-order threshold limitation as a point of 
reference to define the boundaries of the categories. Instead, the 
second and third categories are bounded by the SAT. This change is 
required to ensure rules comply with the section 863 competition 
requirements. With respect to the competition requirements, existing 
requirements are retained in some instances and changed in others, as 
follows:
    a. Orders at or below the micro-purchase threshold. Because the 
competition standards under section 863 begin at the SAT, the Councils 
agreed that no changes were needed to the procedures for orders at or 
below the micro-purchase threshold, i.e., orders may be placed with any 
FSS contractor that can meet the agency's needs.
    b. Orders exceeding the micro-purchase threshold but not exceeding 
the SAT. In this category, an ordering activity may place an order with 
the FSS contractor that represents the best value after surveying at 
least three FSS contractors through GSA Advantage! by reviewing the 
catalogs or price lists of at least three FSS contractors, or by 
requesting quotations from at least three schedule contractors.
    c. Orders exceeding the SAT. This interim rule changes competition 
requirements in this category to conform to the section 863 competition 
standards. The ordering activity must provide the RFQ to as many FSS 
contractors as practicable, consistent with market research appropriate 
to the circumstances, to reasonably ensure that quotes will be received 
from at least three contractors that can fulfill the requirement and 
further ensure that all quotes received are fairly considered and award 
is made in accordance with the basis for selection in the RFQ. The 
terminology set forth in the statute is tailored to conform with the 
process under which the FSS Program operates. For example, section 863 
uses language such as ``each individual purchase of property or 
services,'' whereas this rule uses the term ``orders.'' The ordering 
procedures at FAR 8.405-1(d) for orders exceeding the maximum-order 
threshold have been deleted because the section 863 competition 
standard supersedes those procedures. In addition, when an order 
exceeds the SAT, an ordering activity is now required to document the 
best-value determination with evidence of compliance with the ordering 
procedures. For example, there should be documentation to show whether 
at least three quotes were received. If fewer than three quotes were 
received, and e-Buy was not used (see discussion on e-Buy at paragraph 
4. of this section), then the contracting officer must clearly explain, 
in the file documentation, the efforts made to obtain quotes from at

[[Page 14550]]

least three FSS contractors that can fulfill the requirement.
    2. FAR 8.405-2, Ordering procedures for services requiring a 
statement of work.
    a. Orders at or below the micro-purchase threshold. The rules for 
orders at or below the micro-purchase threshold remain unchanged.
    b. Orders exceeding the micro-purchase threshold but not exceeding 
the SAT. Consistent with current FAR requirements for orders of this 
size, the ordering activity must provide the RFQ (including the 
statement of work and evaluation criteria) to at least three FSS 
contractors that offer services that will meet the agency's needs. 
Otherwise, the ordering activity contracting officer must document the 
circumstances for restricting consideration of fewer than three 
schedule contractors that can fulfill the requirement, based on one of 
the reasons at FAR 8.405-6(a) and select the corresponding reason in 
FPDS.
    c. Orders exceeding the SAT. This interim rule adds the new 
competition standards in accordance with section 863 for orders over 
the SAT that do not require statements of work. Here, the ordering 
activity must include the statement of work and evaluation criteria 
(e.g., experience and past performance) when providing the RFQ to FSS 
contractors that offer services that will meet the agency's needs or 
posting the RFQ on e-Buy.
    3. FAR 8.405-3, Blanket Purchase Agreements (BPAs). This interim 
rule consolidates FSS BPA procedures into one subsection, FAR 8.405-3, 
and makes a number of changes to improve competition in the 
establishment of FSS BPAs and the placement of orders under such BPAs. 
(The Councils note that the rule addresses only FSS BPAs. This interim 
rule is not applicable to BPAs established under FAR part 13.) Although 
section 863 does not specifically address the treatment of BPAs 
established under FSS contracts, the Councils, after careful 
deliberation, decided to apply the basic competition procedures of 
section 863 to the establishment of BPAs under FSS contracts. 
Accordingly, if the anticipated value of the BPA is over the SAT, the 
ordering activity either must seek quotes from as many schedule 
contractors as practicable to reasonably ensure that quotes will be 
received from at least three contractors that can fulfill the 
requirements or post the RFQ on e-Buy, unless these requirements are 
waived on the basis of a limited-sources justification that is prepared 
and approved in accordance with FAR 8.405-6.
    a. Single-award BPAs. To encourage and facilitate competition when 
placing orders under BPAs, this interim rule establishes a preference 
for multiple-award BPAs rather than single-award BPAs. The ordering 
activity must consider several factors, including the benefits of on-
going competition, when deciding how many BPAs are appropriate and 
document the decision in the acquisition plan or BPA file. A single-
award BPA may be established only under certain circumstances. To 
further encourage the use of multiple-award BPAs, the Councils added a 
limitation that no single-award BPA with an estimated value exceeding 
$100 million (including any options) may be awarded unless, under 
certain circumstances, the head of the agency makes a determination in 
writing, and the Councils limited the duration of single-award BPAs to 
one year. While a single-award BPA may include up to four one-year 
options, the exercise of each option will now require a written 
determination approved by the ordering activity competition advocate. 
This determination, which is required for all BPAs at least once a 
year, must address whether (1) the FSS contract upon which the BPA was 
established is still in effect; (2) the BPA still represents the best 
value; and (3) the estimated quantities/amounts have been exceeded and 
additional price reductions can be obtained.
    b. Orders under multiple-award BPAs. This interim rule structures 
the ordering procedures for multiple-award BPAs according to dollar 
thresholds, i.e., orders under the micro-purchase threshold, orders 
over the micro-purchase threshold but under the SAT, and orders over 
the SAT. Orders at or below the micro-purchase threshold may be placed 
with any BPA holder that can meet the agency needs.
    When an order is over the micro-purchase threshold but less than 
the SAT, the ordering activity must provide each multiple-award BPA 
holder a fair opportunity to be considered unless one of the exceptions 
at FAR 8.405-6(a)(1)(i) applies. The ordering activity contracting 
officer must document the circumstances when limiting consideration to 
less than all the multiple-award BPA holders.
    For an order exceeding the SAT placed under a multiple-award BPA, 
the ordering activity shall provide an RFQ to all BPA holders offering 
the required supplies or services under the multiple-award BPA. The RFQ 
must include a description of the supplies to be delivered or the 
services to be performed and the basis upon which the selection will be 
made. The ordering activity shall: (1) Afford all BPA holders an 
opportunity to submit a quote; (2) fairly consider all responses 
received; and (3) make award in accordance with the selection 
procedures. The ordering activity must place orders using these 
procedures unless the requirement is waived on the basis of a 
justification that is prepared and approved in accordance with FAR 
8.405-6.
    The Councils note that the new competition standard for multiple-
award BPAs is not applicable to orders placed under BPAs that were 
established on or before the effective date of this interim rule.
    4. E-Buy. The Councils considered various methods for providing 
fair notice to all FSS contractors. FAR 8.402 currently requires the 
use of e-Buy, an electronic FSS requirements-posting tool, only when an 
order contains brand-name specifications. The Councils agreed that the 
use of e-Buy provides contracting officers with an efficient method of 
posting requirements to reach the widest audience of offerors that can 
fulfill the requirements, as well as a swift and easy means for 
contractors to submit responsive and responsible quotes. Therefore, 
this interim rule amends FAR 8.402(d) to identify e-Buy as one medium 
for providing fair notice while also providing offerors with a 
voluntary quoting system. The Councils agreed that posting the RFQ on 
e-Buy allows all FSS holders with the referenced FSS Special Item 
Number (SIN) to view the posting, thus satisfying the requirements for 
fair notice when placing an order or establishing a BPA under FAR 
subpart 8.4.
    As explained previously in this section, the procedures for 
ordering supplies and services under FSS contracts (FAR 8.405-1 and 
8.405-2) when the order is above the SAT, have been revised to require 
the receipt of at least three quotes that can fulfill the requirement 
and also require that all quotes received must be fairly considered. 
However, if e-Buy is used and fewer than three quotes are received, 
section 863 competition requirements are considered to have been met 
and the contracting officer may proceed with award. If e-Buy is not 
used and fewer than three quotes are received from schedule contractors 
that can fulfill the requirements, the contracting officer must 
document a determination that no additional contractors capable of 
fulfilling the requirements could be identified despite reasonable 
efforts to do so.
    5. Other FSS ordering issues. This interim rule retains current FAR

[[Page 14551]]

limitations that restrict the use of brand-name specifications to 
situations where a particular brand name, product, or feature is 
essential to the Government's requirements and market research 
indicates other companies' similar products, or products lacking the 
particular feature, do not meet, or cannot be modified to meet, the 
agency's needs. This interim rule also retains the list of factors to 
be considered when determining best value, such as past performance, 
special features required for effective program performance, delivery 
terms, and environmental and energy efficiency considerations, but adds 
a cross reference to FAR 8.405-4 to emphasize that ordering activities 
should seek price reductions when considering price.

C. Strengthening Competition Requirements for Task and Delivery Orders 
in FAR Subpart 16.5, Indefinite-Delivery Contracts

    The changes made by this interim rule to FAR subpart 16.5 are fully 
addressed in section I.1. Overview, of this Federal Register document.

II. 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.

III. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this interim 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 this rule does not revise or change existing regulations 
pertaining specifically to small business concerns seeking Government 
contracts. DoD, GSA, and NASA believe the rule will benefit small 
entities by encouraging and enhancing competition.
    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. 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 
2007-012), in correspondence.

IV. Paperwork Reduction Act

    The interim 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).

V. 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 Duncan Hunter National Defense Authorization 
Act for Fiscal Year 2009 (Pub. L. 110-417) was enacted on October 14, 
2008. Section 863 required the FAR to be revised no later than one year 
after enactment, or October 14, 2009. Absent implementation of this 
interim rule, section 863 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 5, 8, 16, 18, and 38

    Government procurement.

    Dated: March 4, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 8, 16, 18, and 
38 as set forth below:

0
1. The authority citation for 48 CFR parts 5, 8, 16, 18, and 38 
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 5--PUBLICIZING CONTRACT ACTIONS

0
2. Revise section 5.301 to read as follows:


5.301  General.

    (a) Except for contract actions described in paragraph (b) of this 
section and as provided in 5.003, contracting officers must synopsize 
through the GPE the following:
    (1) Contract awards exceeding $25,000 that are--
    (i) Covered by the World Trade Organization Government Procurement 
Agreement or a Free Trade Agreement (see subpart 25.4); or
    (ii) Likely to result in the award of any subcontracts. However, 
the dollar threshold is not a prohibition against publicizing an award 
of a smaller amount when publicizing would be advantageous to industry 
or to the Government.
    (2) Certain contract actions greater than the simplified 
acquisition threshold as follows--
    (i) Federal Supply Schedule (FSS) orders or Blanket Purchase 
Agreements supported by a limited-source justification (excluding brand 
name) in accordance with 8.405-6; or
    (ii) Task or delivery orders awarded without providing fair 
opportunity in accordance with 16.505(b)(2).
    (3) A notice is not required under this section if the notice would 
disclose the executive agency's needs and the disclosure of such needs 
would compromise the national security.
    (b) A notice is not required under paragraph (a)(1) of this section 
if--
    (1) The award results from acceptance of an unsolicited research 
proposal that demonstrates a unique and innovative research concept and 
publication of any notice would disclose the originality of thought or 
innovativeness of the proposed research or would disclose proprietary 
information associated with the proposal;
    (2) The award results from a proposal submitted under the Small 
Business Innovation Development Act of 1982 (Pub. L. 97-219);
    (3) The contract action is an order placed under subpart 16.5 or 
8.4, except see paragraph (a)(2) of this section;
    (4) The award is made for perishable subsistence supplies;
    (5) The award is for utility services, other than 
telecommunications services, and only one source is available;
    (6) The contract action--
    (i) Is for an amount not greater than the simplified acquisition 
threshold;
    (ii) Was made through a means where access to the notice of 
proposed contract action was provided through the GPE; and
    (iii) Permitted the public to respond to the solicitation 
electronically; or
    (7) The award is for the services of an expert to support the 
Federal Government in any current or anticipated litigation or dispute 
pursuant to the exception to full and open competition authorized at 
6.302-3.
    (c) With respect to acquisitions covered by the World Trade 
Organization Government Procurement Agreement or a Free Trade 
Agreement, contracting officers must submit synopses in sufficient time 
to permit

[[Page 14552]]

their publication in the GPE not later than 60 days after award.
    (d) Posting is required of the justifications for--
    (1) Contracts awarded using other than full and open competition in 
accordance with 6.305;
    (2) FSS orders or Blanket Purchase Agreements with an estimated 
value greater than the simplified acquisition threshold and supported 
by a limited-sources justification (see 8.405-6(a)); or
    (3) Task or delivery orders greater than the simplified acquisition 
threshold and awarded without providing for fair opportunity in 
accordance with 16.505(b)(2)(ii)(B) and (D).

0
3. Revise section 5.406 to read as follows:


5.406  Public disclosure of justification documents for certain 
contract actions.

    (a) Justifications and approvals for other than full and open 
competition must be posted in accordance with 6.305.
    (b) Limited-source justifications (excluding brand name) for FSS 
orders or blanket purchase agreements with an estimated value greater 
than the simplified acquisition threshold must be posted in accordance 
with 8.405-6(a)(2).
    (c) Justifications for task or delivery orders greater than the 
simplified acquisition threshold and awarded without providing for fair 
opportunity must be posted in accordance with 16.505(b)(2)(ii)(D).


5.705  [Amended]

0
4. Amend section 5.705 by removing from the introductory paragraph 
``5.301(b)(3) through (8)'' and adding ``5.301(b)(2) through (7)'' in 
its place.

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
5. Amend section 8.402 by revising paragraph (d) to read as follows:


8.402  General.

* * * * *
    (d)(1) e-Buy, GSA's electronic Request for Quotation (RFQ) system, 
is a part of a suite of on-line tools which complement GSA Advantage!. 
E-Buy allows ordering activities to post requirements, obtain quotes, 
and issue orders electronically. Posting an RFQ on e-Buy--
    (i) Is one medium for providing fair notice to all schedule 
contractors offering such supplies and services as required by 8.405-1, 
8.405-2, and 8.405-3; and
    (ii) Is required when an order contains brand-name specifications 
(see 8.405-6).
    (2) Ordering activities may access e-Buy at http://www.ebuy.gsa.gov. For more information or assistance on either GSA 
Advantage! or e-Buy, contact GSA at Internet e-mail address 
<a href="/cdn-cgi/l/email-protection#a9cedac887c8cddfc8c7ddc8cecce9cedac887cec6df"><span class="__cf_email__" data-cfemail="e2859183cc838694838c96838587a2859183cc858d94">[email protected]</span></a>.
* * * * *

0
6. Amend section 8.404 by--
0
a. Revising the last sentence in paragraph (a);
0
b. Redesignating paragraph (e) as paragraph (g);
0
c. Adding new paragraphs (e) and (f); and
0
d. Revising the newly redesignated paragraph (g).
    The revised and added text reads as follows:


8.404  Use of Federal Supply Schedules.

    (a) * * * Therefore, when establishing a BPA (as authorized by 
13.303-2(c)(3)), or placing orders under Federal Supply Schedule 
contracts using the procedures of 8.405, ordering activities shall not 
seek competition outside of the Federal Supply Schedules or synopsize 
the requirement; but see paragraph (g) of this section.
* * * * *
    (e) The procedures under subpart 33.1 are applicable to the 
issuance of an order or the establishment of a BPA against a schedule 
contract.
    (f) If the ordering activity issues an RFQ, the ordering activity 
shall provide the RFQ to any schedule contractor that requests a copy 
of it.
    (g)(1) Ordering activities shall publicize contract actions funded 
in whole or in part by the American Recovery and Reinvestment Act of 
2009 (Pub. L. 111-5):
    (i) Notices of proposed MAS orders (including orders issued under 
BPAs) that are for ``informational purposes only'' exceeding $25,000 
shall follow the procedures in 5.704 for posting orders.
    (ii) Award notices for MAS orders (including orders issued under 
BPAs) shall follow the procedures in 5.705.
    (2) When an order is awarded or a Blanket Purchase Agreement is 
established with an estimated value greater than the simplified 
acquisition threshold and supported by a limited-source justification 
at 8.405-6(a), the ordering activity contracting officer must--
    (i) Publicize the action (see 5.301); and
    (ii) Post the justification in accordance with 8.405-6(a)(2).

0
7. Amend section 8.405 by adding a sentence to the end of the 
paragraph.


8.405  Ordering procedures for Federal Supply Schedules.

    * * * For establishing BPAs and for orders under BPAs see 8.405-3.

0
8. Amend section 8.405-1 by--
0
a. Adding to the end of paragraph (a) ``For establishing BPAs and for 
orders under BPAs see 8.405-3.''
0
b. Revising paragraphs (c) and (d);
0
c. Redesignating paragraph (e) as paragraph (g);
0
d. Adding new paragraphs (e) and (f); and
0
e. Revising newly redesignated paragraph (g).
    The added and revised text reads as follows:


8.405-1  Ordering procedures for supplies, and services not requiring a 
statement of work.

* * * * *
    (c) Orders exceeding the micro-purchase threshold but not exceeding 
the simplified acquisition threshold. Ordering activities shall place 
orders with the schedule contractor that can provide the supply or 
service that represents the best value. Before placing an order, an 
ordering activity shall:
    (1) Consider reasonably available information about the supply or 
service offered under MAS contracts by surveying at least three 
schedule contractors through the GSA Advantage! on-line shopping 
service, by reviewing the catalogs or pricelists of at least three 
schedule contractors, or by requesting quotations from at least three 
schedule contractors (see 8.405-5); or
    (2) Document the circumstances for restricting consideration to 
fewer than three schedule contractors based on one of the reasons at 
8.405-6(a).
    (d) For proposed orders exceeding the simplified acquisition 
threshold. (1) Each order shall be placed on a competitive basis in 
accordance with (d)(2) and (3) of this section, unless this requirement 
is waived on the basis of a justification that is prepared and approved 
in accordance with 8.405-6.
    (2) The ordering activity contracting officer shall provide an RFQ 
that includes a description of the supplies to be delivered or the 
services to be performed and the basis upon which the selection will be 
made (see 8.405-1(f)).
    (3) The ordering activity contracting officer shall--
    (i) Post the RFQ on e-Buy to afford all schedule contractors 
offering the required supplies or services under the appropriate 
multiple award schedule(s) an opportunity to submit a quote; or
    (ii) Provide the RFQ to as many schedule contractors as 
practicable, consistent with market research appropriate to the 
circumstances, to

[[Page 14553]]

reasonably ensure that quotes will be received from at least three 
contractors that can fulfill the requirements. When fewer than three 
quotes are received from schedule contractors that can fulfill the 
requirement, the contracting officer shall prepare a written 
determination explaining that no additional contractors capable of 
fulfilling the requirement could be identified despite reasonable 
efforts to do so. The determination must clearly explain efforts made 
to obtain quotes from at least three schedule contractors.
    (4) The ordering activity contracting officer shall ensure that all 
quotes received are fairly considered and award is made in accordance 
with the basis for selection in the RFQ.
    (e) When an order contains brand-name specifications, the 
contracting officer shall post the RFQ on e-Buy along with the 
justification or documentation as required by 8.405-6.
    (f) In addition to price (see 8.404(d) and 8.405-4), when 
determining best value, the ordering activity may consider, among other 
factors, the following:
    (1) Past performance.
    (2) Special features of the supply or service required for 
effective program performance.
    (3) Trade-in considerations.
    (4) Probable life of the item selected as compared with that of a 
comparable item.
    (5) Warranty considerations.
    (6) Maintenance availability.
    (7) Environmental and energy efficiency considerations.
    (8) Delivery terms.
    (g) Minimum documentation. The ordering activity shall document--
    (1) The schedule contracts considered, noting the contractor from 
which the supply or service was purchased;
    (2) A description of the supply or service purchased;
    (3) The amount paid;
    (4) When an order exceeds the simplified acquisition threshold, 
evidence of compliance with the ordering procedures at 8.405-1(d); and
    (5) The basis for the award decision.

0
9. Amend section 8.405-2 by--
0
a. Adding a sentence to the end of paragraph (a);
0
b. Removing from the first sentence in paragraph (b) ``include the 
work'' and adding ``include a description of work'' in its place;
0
c. Revising the heading to paragraph (c)(2), and paragraphs (c)(2)(ii), 
(c)(2)(iii) and (c)(3);
0
d. Revising the third sentence of paragraph (d);
0
e. Removing from the end of paragraph (e)(6) the word ``and'';
0
f. Removing from the end of paragraph (e)(7)(ii) ``order.'' and adding 
``order; and'' in its place; and
0
g. Adding paragraph (e)(8).
    The revised and added text reads as follows:


8.405-2  Ordering procedures for services requiring a statement of 
work.

    (a) * * * ``For establishing BPAs and for orders under BPAs see 
8.405-3.''
* * * * *
    (c) * * *
    (2) For orders exceeding the micro-purchase threshold, but not 
exceeding the simplified acquisition threshold.
* * * * *
    (ii) The ordering activity shall provide the RFQ (including the 
statement of work and evaluation criteria) to at least three schedule 
contractors that offer services that will meet the agency's needs or 
document the circumstances for restricting consideration to fewer than 
three schedule contractors based on one of the reasons at 8.405-6(a).
    (iii) The ordering activity shall specify the type of order (i.e., 
firm-fixed-price, labor-hour) for the services identified in the 
statement of work. The contracting officer should establish firm-fixed-
prices, as appropriate.
    (3) For proposed orders exceeding the simplified acquisition 
threshold. In addition to meeting the requirements of 8.405-2(c)(2)(i) 
and (iii), the following procedures apply:
    (i) Each order shall be placed on a competitive basis in accordance 
with (c)(3)(ii) and (iii) of this section, unless this requirement is 
waived on the basis of a justification that is prepared and approved in 
accordance with 8.405-6.
    (ii) The ordering activity contracting officer shall provide an RFQ 
that includes a statement of work and the evaluation criteria.
    (iii) The ordering activity contracting officer shall--
    (A) Post the RFQ on e-Buy to afford all schedule contractors 
offering the required services under the appropriate multiple-award 
schedule(s) an opportunity to submit a quote; or
    (B) Provide the RFQ to as many schedule contractors as practicable, 
consistent with market research appropriate to the circumstances, to 
reasonably ensure that quotes will be received from at least three 
contractors that can fulfill the requirements. When fewer than three 
quotes are received from schedule contractors that can fulfill the 
requirements, the contracting officer shall prepare a written 
determination to explain that no additional contractors capable of 
fulfilling the requirements could be identified despite reasonable 
efforts to do so. The determination must clearly explain efforts made 
to obtain quotes from at least three schedule contractors.
    (C) Ensure all quotes received are fairly considered and award is 
made in accordance with the evaluation criteria in the RFQ.
    (d) * * * Place the order with the schedule contractor that 
represents the best value (see 8.404(d) and 8.405-4). * * *
    (e) * * *
    (8) When an order exceeds the simplified acquisition threshold, 
evidence of compliance with the ordering procedures at 8.405-2(c).

0
10. Revise section 8.405-3 to read as follows:


8.405-3  Blanket purchase agreements (BPAs).

    (a) Establishment. (1) Ordering activities may establish BPAs under 
any schedule contract to fill repetitive needs for supplies or 
services. Ordering activities shall establish the BPA with the schedule 
contractor(s) that can provide the supply or service that represents 
the best value.
    (2) In addition to price (see 8.404(d) and 8.405-4), when 
determining best value, the ordering activity may consider, among other 
factors, the following:
    (i) Past performance.
    (ii) Special features of the supply or service required for 
effective program performance.
    (iii) Trade-in considerations.
    (iv) Probable life of the item selected as compared with that of a 
comparable item.
    (v) Warranty considerations.
    (vi) Maintenance availability.
    (vii) Environmental and energy efficiency considerations.
    (viii) Delivery terms.
    (3)(i) The ordering activity contracting officer shall, to the 
maximum extent practicable, give preference to establishing multiple-
award BPAs, rather than establishing a single-award BPA.
    (ii) No single-award BPA with an estimated value exceeding $103 
million (including any options), may be awarded unless the head of the 
agency determines in writing that--
    (A) The orders expected under the BPA are so integrally related 
that only a single source can reasonably perform the work;
    (B) The BPA provides only for firm-fixed priced orders for--
    (1) Products with unit prices established in the BPA; or

[[Page 14554]]

    (2) Services with prices established in the BPA for specific tasks 
to be performed;
    (C) Only one source is qualified and capable of performing the work 
at a reasonable price to the Government; or
    (D) It is necessary in the public interest to award the BPA to a 
single source for exceptional circumstances.
    (iii) The requirement for a determination for a single-award BPA 
greater than $103 million is in addition to any applicable requirement 
for a limited-source justification at 8.405-6. However, the two 
documents may be combined into one document.
    (iv) In determining how many multiple-award BPAs to establish or 
that a single-award BPA is appropriate, the contracting officer should 
consider the following factors and document the decision in the 
acquisition plan or BPA file:
    (A) The scope and complexity of the requirement(s);
    (B) The benefits of on-going competition and the need to 
periodically compare multiple technical approaches or prices;
    (C) The administrative costs of BPAs; and
    (D) The technical qualifications of the schedule contractor(s).
    (4) BPAs shall address the frequency of ordering, invoicing, 
discounts, requirements (e.g., estimated quantities, work to be 
performed), delivery locations, and time.
    (5) When establishing multiple-award BPAs, the ordering activity 
shall specify the procedures for placing orders under the BPAs in 
accordance with 8.405-3(c)(2).
    (6) Establishment of a multi-agency BPA against a Federal Supply 
Schedule contract is permitted if the multi-agency BPA identifies the 
participating agencies and their estimated requirements at the time the 
BPA is established.
    (7) Minimum documentation. The ordering activity contracting 
officer shall include in the BPA file documentation the--
    (i) Schedule contracts considered, noting the contractor to which 
the BPA was awarded;
    (ii) Description of the supply or service purchased;
    (iii) Price;
    (iv) Required justification for a limited-source BPA (see 8.405-6), 
if applicable;
    (v) Determination for a single-award BPA exceeding $100 million, if 
applicable (see (a)(3)(ii));
    (vi) Documentation supporting the decision to establish multiple-
award BPAs or a single-award BPA (see (a)(3)(iv));
    (vii) Evidence of compliance with paragraph (b) of this section, 
for competitively awarded BPAs, if applicable; and
    (viii) Basis for the award decision. This should include the 
evaluation methodology used in selecting the contractor, the rationale 
for any tradeoffs in making the selection, and a price reasonableness 
determination for services requiring a statement of work.
    (b) Competitive procedures for establishing a BPA. This paragraph 
applies to the establishment of a BPA, in addition to applicable 
instructions in paragraph (a).
    (1) For supplies, and for services not requiring a statement of 
work. The procedures of this paragraph apply when establishing a BPA 
for supplies and services that are listed in the schedule contract at a 
fixed price for the performance of a specific task, where a statement 
of work is not required (e.g., installation, maintenance, and repair).
    (i) If the estimated value of the BPA does not exceed the 
simplified acquisition threshold. (A) The ordering activity shall:
    (1) Consider reasonably available information about the supply or 
service offered under MAS contracts by surveying at least three 
schedule contractors through the GSA Advantage! on-line shopping 
service, by reviewing the catalogs or pricelists of at least three 
schedule contractors, or by requesting quotations from at least three 
schedule contractors (see 8.405-5); or
    (2) Document the circumstances for restricting consideration to 
fewer than three schedule contractors based on one of the reasons at 
8.405-6(a).
    (B) The ordering activity shall establish the BPA with the schedule 
contractor(s) that can provide the best value.
    (ii) If the estimated value of the BPA exceeds the simplified 
acquisition threshold. The ordering activity contracting officer:
    (A) Shall provide an RFQ that includes a description of the 
supplies to be delivered or the services to be performed and the basis 
upon which the selection will be made.
    (B)(1) Shall post the RFQ on e-Buy to afford all schedule 
contractors offering the required supplies or services under the 
appropriate multiple award schedule(s) an opportunity to submit a 
quote; or
    (2) Shall provide the RFQ to as many schedule contractors as 
practicable, consistent with market research appropriate to the 
circumstances, to reasonably ensure that quotes will be received from 
at least three contractors that can fulfill the requirements. When 
fewer than three quotes are received from schedule contractors that can 
fulfill the requirements, the contracting officer shall prepare a 
written determination explaining that no additional contractors capable 
of fulfilling the requirements could be identified despite reasonable 
efforts to do so. The determination must clearly explain efforts made 
to obtain quotes from at least three schedule contractors.
    (C) Shall ensure all quotes received are fairly considered and 
award is made in accordance with the basis for selection in the RFQ. 
After seeking price reductions (see 8.405-4), establish the BPA with 
the schedule contractor(s) that provides the best value.
    (D) The BPA must be established in accordance with paragraphs 
(b)(1)(ii)(B) and (C) of this section, unless the requirement is waived 
on the basis of a justification that is prepared and approved in 
accordance with 8.405-6.
    (2) For services requiring a statement of work. This applies when 
establishing a BPA that requires services priced at hourly rates, as 
provided by the schedule contract. The applicable services will be 
identified in the Federal Supply Schedule publications and the 
contractor's pricelists.
    (i) Statements of Work (SOWs). The ordering activity shall develop 
a statement of work. All Statements of Work shall include a description 
of work to be performed; location of work; period of performance; 
deliverable schedule; applicable performance standards; and any special 
requirements (e.g., security clearances, travel, and special 
knowledge). To the maximum extent practicable, agency requirements 
shall be performance-based statements (see subpart 37.6).
    (ii) Type-of-order preference. The ordering activity shall specify 
the order type (i.e., firm-fixed price, labor-hour) for the services 
identified in the statement of work. The contracting officer should 
establish firm-fixed prices, as appropriate.
    (iii) Request for Quotation procedures. The ordering activity must 
provide a RFQ, which includes the statement of work and evaluation 
criteria (e.g., experience and past performance), to schedule 
contractors that offer services that will meet the agency's needs. The 
RFQ may be posted to GSA's electronic RFQ system, e-Buy (see 8.402(d)).
    (iv) If the estimated value of the BPA does not exceed the 
simplified acquisition threshold. The ordering activity shall provide 
the RFQ (including the statement of work and evaluation criteria) to at 
least three

[[Page 14555]]

schedule contractors that offer services that will meet the agency's 
needs.
    (v) If estimated value of the BPA exceeds the simplified 
acquisition threshold. The ordering activity contracting officer--
    (A) Shall post the RFQ on e-Buy to afford all schedule contractors 
offering the required supplies or services under the appropriate 
multiple-award schedule an opportunity to submit a quote; or
    (B) Shall provide the RFQ, which includes the statement of work and 
evaluation criteria, to as many schedule contractors as practicable, 
consistent with market research appropriate to the circumstances, to 
reasonably ensure that quotes will be received from at least three 
contractors that can fulfill the requirements. When fewer than three 
quotes are received from schedule contractors that can fulfill the 
requirements, the contracting officer shall document the file. The 
contracting officer shall prepare a written determination explaining 
that no additional contractors capable of fulfilling the requirements 
could be identified despite reasonable efforts to do so. The 
determination must clearly explain efforts made to obtain quotes from 
at least three schedule contractors.
    (vi) The ordering activity contracting officer shall ensure all 
quotes received are fairly considered and award is made in accordance 
with the basis for selection in the RFQ. The ordering activity is 
responsible for considering the level of effort and the mix of labor 
proposed to perform, and for determining that the proposed price is 
reasonable.
    (vii) The BPA must be established in accordance with paragraph 
(b)(2)(iv) or (v), and with paragraph (b)(2)(vi) of this section, 
unless the requirement is waived on the basis of a justification that 
is prepared and approved in accordance with 8.405-6.
    (viii) The ordering activity contracting officer shall establish 
the BPA with the schedule contractor(s) that represents the best value 
(see 8.404(d) and 8.405-4).
    (3) After award, ordering activities should provide timely 
notification to unsuccessful offerors. If an unsuccessful offeror 
requests information on an award that was based on factors other than 
price alone, a brief explanation of the basis for the award decision 
shall be provided.
    (c) Ordering from BPAs. The procedures in this paragraph (c) are 
not required for BPAs established on or before May 16, 2011. However, 
ordering activities are encouraged to use the procedures for such BPAs.
    (1) Single-award BPA. If the ordering activity establishes a 
single-award BPA, authorized users may place the order directly under 
the established BPA when the need for the supply or service arises.
    (2) Multiple-award BPAs. (i) Orders at or below the micro-purchase 
threshold. The ordering activity may place orders at or below the 
micro-purchase threshold with any BPA holder that can meet the agency 
needs. The ordering activity should attempt to distribute any such 
orders among the BPA holders.
    (ii) Orders exceeding the micro-purchase threshold but not 
exceeding the simplified acquisition threshold. (A) The ordering 
activity must provide each multiple-award BPA holder a fair opportunity 
to be considered for each order exceeding the micro-purchase threshold, 
but not exceeding the simplified acquisition threshold unless one of 
the exceptions at 8.405-6(a)(1)(i) applies.
    (B) The ordering activity need not contact each of the multiple-
award BPA holders before placing an order if information is available 
to ensure that each BPA holder is provided a fair opportunity to be 
considered for each order.
    (C) The ordering activity contracting officer shall document the 
circumstances when restricting consideration to less than all multiple-
award BPA holders offering the required supplies and services.
    (iii) Orders exceeding the simplified acquisition threshold. (A) 
The ordering activity shall place an order in accordance with 
paragraphs (c)(2)(iii)(A)(1), (2) and (3) of this paragraph, unless the 
requirement is waived on the basis of a justification that is prepared 
and approved in accordance with 8.405-6. The ordering activity shall--
    (1) Provide an RFQ to all BPA holders offering the required 
supplies or services under the multiple-award BPAs, to include a 
description of the supplies to be delivered or the services to be 
performed and the basis upon which the selection will be made;
    (2) Afford all BPA holders responding to the RFQ an opportunity to 
submit a quote; and
    (3) Fairly consider all responses received and make award in 
accordance with the selection procedures.
    (B) The ordering activity shall document evidence of compliance 
with these procedures and the basis for the award decision.
    (3) BPAs for hourly-rate services. If the BPA is for hourly-rate 
services, the ordering activity shall develop a statement of work for 
each order covered by the BPA. Ordering activities should place these 
orders on a firm-fixed price basis to the maximum extent practicable. 
All orders under the BPA shall specify a price for the performance of 
the tasks identified in the statement of work.
    (d) Duration of BPAs. (1) Multiple-award BPAs generally should not 
exceed five years in length, but may do so to meet program 
requirements.
    (2) A single-award BPA shall not exceed one year. It may have up to 
four one-year options. See paragraph (e) of this section for 
requirements associated with option exercise.
    (3) Contractors may be awarded BPAs that extend beyond the current 
term of their GSA Schedule contract, so long as there are option 
periods in their GSA Schedule contract that, if exercised, will cover 
the BPA's period of performance.
    (e) Review of BPAs. (1) The ordering activity contracting officer 
shall review the BPA and determine in writing, at least once a year 
(e.g., at option exercise), whether--
    (i) The schedule contract, upon which the BPA was established, is 
still in effect;
    (ii) The BPA still represents the best value (see 8.404(d)); and
    (iii) Estimated quantities/amounts have been exceeded and 
additional price reductions can be obtained.
    (2) The determination shall be included in the BPA file 
documentation.
    (3) If a single-award BPA is established, the ordering activity 
contracting officer's annual determination must be approved by the 
ordering activity's competition advocate prior to the exercise of an 
option to extend the term of the BPA.
0
11. Revise section 8.405-4 to read as follows:


8.405-4  Price reductions.

    Ordering activities may request a price reduction at any time 
before placing an order, establishing a BPA, or in conjunction with the 
annual BPA review. However, the ordering activity shall seek a price 
reduction when the order or BPA exceeds the simplified acquisition 
threshold. Schedule contractors are not required to pass on to all 
schedule users a price reduction extended only to an individual 
ordering activity for a specific order or BPA.
0
12. Revise section 8.405-6 to read as follows:


8.405-6  Limiting sources.

    Orders placed or BPAs established under Federal Supply Schedules 
are exempt from the requirements in part 6. However, an ordering 
activity must justify its action when restricting

[[Page 14556]]

consideration in accordance with paragraphs (a) or (b) of this 
section--
    (a) Orders or BPAs exceeding the micro-purchase threshold based on 
a limited sources justification. (1) Circumstances justifying limiting 
the source. (i) For a proposed order or BPA with an estimated value 
exceeding the micro-purchase threshold not placed or established in 
accordance with the procedures in 8.405-1, 8.405-2, or 8.405-3, the 
only circumstances that may justify the action are--
    (A) An urgent and compelling need exists, and following the 
procedures would result in unacceptable delays;
    (B) Only one source is capable of providing the supplies or 
services required at the level of quality required because the supplies 
or services are unique or highly specialized; or
    (C) In the interest of economy and efficiency, the new work is a 
logical follow-on to an original Federal Supply Schedule order provided 
that the original order was placed in accordance with the applicable 
Federal Supply Schedule ordering procedures. The original order or BPA 
must not have been previously issued under sole-source or limited-
sources procedures.
    (ii) See 8.405-6(c) for the content of the justification for an 
order or BPA exceeding the simplified acquisition threshold.
    (2) Posting. (i) Within 14 days after placing an order or 
establishing a BPA exceeding the simplified acquisition threshold that 
is supported by a limited-sources justification permitted under any of 
the circumstances under paragraph (a)(1) of this section, the ordering 
activity shall--
    (A) Publish a notice in accordance with 5.301; and
    (B) Post the justification--
    (1) At the GPE http://www.fedbizopps.gov;
    (2) On the Web site of the ordering activity agency, which may 
provide access to the justification by linking to the GPE; and
    (3) For a minimum of 30 days.
    (ii) In the case of an order or BPA permitted under paragraph 
(a)(1)(i)(A) of this section, the justification shall be posted within 
30 days after award.
    (iii) Contracting officers shall carefully screen all 
justifications for contractor proprietary data and remove all such 
data, and such references and citations as are necessary to protect the 
proprietary data, before making the justifications available for public 
inspection. Contracting officers shall also be guided by the exemptions 
to disclosure of information contained in the Freedom of Information 
Act (5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in 
determining whether other data should be removed. Although the 
submitter notice process set out in Executive Order 12600 
``Predisclosure Notification Procedures for Confidential Commercial 
Information'' does not apply, if the justification appears to contain 
proprietary data, the contracting officer should provide the contractor 
that submitted the information an opportunity to review the 
justification for proprietary data before making the justification 
available for public inspection, redacted as necessary. This process 
must not prevent or delay the posting of the justification in 
accordance with the timeframes required in paragraphs (a)(2)(i) and 
(ii) of this section.
    (iv) This posting requirement does not apply when disclosure would 
compromise the national security (e.g., would result in disclosure of 
classified information) or create other security risks.
    (b) Items peculiar to one manufacturer. An item peculiar to one 
manufacturer can be a particular brand name, product, or a feature of a 
product, peculiar to one manufacturer. A brand name item, whether 
available on one or more schedule contracts, is an item peculiar to one 
manufacturer.
    (1) Brand name specifications shall not be used unless the 
particular brand name, product, or feature is essential to the 
Government's requirements, and market research indicates other 
companies' similar products, or products lacking the particular 
feature, do not meet, or cannot be modified to meet, the agency's 
needs.
    (2) Documentation. (i) For proposed orders or BPAs with an 
estimated value exceeding the micro-purchase threshold, but not 
exceeding the simplified acquisition threshold, the ordering activity 
contracting officer shall document the basis for restricting 
consideration to an item peculiar to one manufacturer.
    (ii) For proposed orders or BPAs with an estimated value exceeding 
the simplified acquisition threshold see paragraph (c) of this section.
    (3) Posting. (i) The ordering activity shall post the following 
information along with the Request for Quotation (RFQ) to e-Buy (http://www.ebuy.gsa.gov):
    (A) For proposed orders or BPAs with an estimated value exceeding 
$25,000, but not exceeding the simplified acquisition threshold, the 
documentation required by paragraph (b)(2)(i) of this section.
    (B) For proposed orders or BPAs with an estimated value exceeding 
the simplified acquisition threshold, the justification required by 
paragraph (c) of this section.
    (ii) The posting requirement of paragraph (b)(3)(i) of this section 
does not apply when--
    (A) Disclosure would compromise the national security (e.g., would 
result in disclosure of classified information) or create other 
security risks. The fact that access to classified matter may be 
necessary to submit a proposal or perform the contract does not, in 
itself, justify use of this exception;
    (B) The nature of the file (e.g., size, format) does not make it 
cost-effective or practicable for contracting officers to provide 
access through e-Buy; or
    (C) The agency's senior procurement executive makes a written 
determination that access through e-Buy is not in the Government's 
interest.
    (c) An order or BPA with an estimated value exceeding the 
simplified acquisition threshold. (1) For a proposed order or BPA 
exceeding the simplified acquisition threshold, the requiring activity 
shall assist the ordering activity contracting officer in the 
preparation of the justification. The justification shall cite that the 
acquisition is conducted under the authority of the Multiple-Award 
Schedule Program (see 8.401).
    (2) At a minimum, each justification shall include the following 
information:
    (i) Identification of the agency and the contracting activity, and 
specific identification of the document as a ``Limited-Sources 
Justification.''
    (ii) Nature and/or description of the action being approved.
    (iii) A description of the supplies or services required to meet 
the agency's needs (including the estimated value).
    (iv) The authority and supporting rationale (see 8.405-6(a)(1)(i) 
and (b)(1)) and, if applicable, a demonstration of the proposed 
contractor's unique qualifications to provide the required supply or 
service.
    (v) A determination by the ordering activity contracting officer 
that the order represents the best value consistent with 8.404(d).
    (vi) A description of the market research conducted among schedule 
holders and the results or a statement of the reason market research 
was not conducted.
    (vii) Any other facts supporting the justification.
    (viii) A statement of the actions, if any, the agency may take to 
remove or overcome any barriers that led to the restricted 
consideration before any subsequent acquisition for the supplies or 
services is made.

[[Page 14557]]

    (ix) The ordering activity contracting officer's certification that 
the justification is accurate and complete to the best of the 
contracting officer's knowledge and belief.
    (x) Evidence that any supporting data that is the responsibility of 
technical or requirements personnel (e.g., verifying the Government's 
minimum needs or requirements or other rationale for limited sources) 
and which form a basis for the justification have been certified as 
complete and accurate by the technical or requirements personnel.
    (xi) For justifications under 8.405-6(a)(1), a written 
determination by the approving official identifying the circumstance 
that applies.
    (d) Justification approvals. (1) For a proposed order or BPA with 
an estimated value exceeding the simplified acquisition threshold, but 
not exceeding $650,000, the ordering activity contracting officer's 
certification that the justification is accurate and complete to the 
best of the ordering activity contracting officer's knowledge and 
belief will serve as approval, unless a higher approval level is 
established in accordance with agency procedures.
    (2) For a proposed order or BPA with an estimated value exceeding 
$650,000, but not exceeding $12.5 million, the justification must be 
approved by the competition advocate of the activity placing the order, 
or by an official named in paragraph (d)(3) or (d)(4) of this section. 
This authority is not delegable.
    (3) For a proposed order or BPA with an estimated value exceeding 
$12.5 million, but not exceeding $62.5 million (or, for DoD, NASA, and 
the Coast Guard, not exceeding $85.5 million), the justification must 
be approved by--
    (i) The head of the procuring activity placing the order;
    (ii) A designee who--
    (A) If a member of the armed forces, is a general or flag officer;
    (B) If a civilian, is serving in a position in a grade above GS-15 
under the General Schedule (or in a comparable or higher position under 
another schedule); or
    (iii) An official named in paragraph (d)(4) of this section.
    (4) For a proposed order or BPA with an estimated value exceeding 
$62.5 million (or, for DoD, NASA, and the Coast Guard, over $85.5 
million), the justification must be approved by the senior procurement 
executive of the agency placing the order. This authority is not 
delegable, except in the case of the Under Secretary of Defense for 
Acquisition, Technology, and Logistics, acting as the senior 
procurement executive for the Department of Defense.

0
13. Revise section 8.406-1 to read as follows:


8.406-1  Order placement.

    (a) Ordering activities may place orders orally, except for--
    (1) Supplies and services not requiring a statement of work 
exceeding the simplified acquisition threshold;
    (2) Services requiring a statement of work (SOW); and
    (3) Orders containing brand-name specifications that exceed 
$25,000.
    (b) Ordering activities may use Optional Form 347, an agency-
prescribed form, or an established electronic communications format to 
order supplies or services from schedule contracts.
    (c) The ordering activity shall place an order directly with the 
contractor in accordance with the terms and conditions of the 
pricelists (see 8.402(b)). Prior to placement of the order, the 
ordering activity shall ensure that the regulatory and statutory 
requirements of the requiring agency have been applied.
    (d) Orders shall include the following information in addition to 
any information required by the schedule contract:
    (1) Complete shipping and billing addresses.
    (2) Contract number and date.
    (3) Agency order number.
    (4) F.o.b. delivery point; i.e., origin or destination.
    (5) Discount terms.
    (6) Delivery time or period of performance.
    (7) Special item number or national stock number.
    (8) A statement of work for services, when required, or a brief, 
complete description of each item (when ordering by model number, 
features and options such as color, finish, and electrical 
characteristics, if available, must be specified).
    (9) Quantity and any variation in quantity.
    (10) Number of units.
    (11) Unit price.
    (12) Total price of order.
    (13) Points of inspection and acceptance.
    (14) Other pertinent data; e.g., delivery instructions or receiving 
hours and size-of-truck limitation.
    (15) Marking requirements.
    (16) Level of preservation, packaging, and packing.

PART 16--TYPES OF CONTRACTS

0
14. Amend section 16.505 by--
0
a. Revising paragraph (a)(1) and the fourth sentence of paragraph 
(b)(1)(ii);
0
b. Redesignating paragraphs (b)(1)(iii) and (b)(1)(iv) as paragraphs 
(b)(1)(iv) and (b)(1)(v), respectively;
0
c. Adding a new paragraph (b)(1)(iii); and
0
d. Revising paragraphs (b)(2) and (b)(5).
    The revised and added text reads as follows:


16.505  Ordering.

    (a) General. (1) In general, the contracting officer does not 
synopsize orders under indefinite-delivery contracts; except see 
16.505(a)(10) and 16.505(b)(2)(ii)(D).
* * * * *
    (b) * * *
    (1) * * *
    (ii) * * * If the order does not exceed the simplified acquisition 
threshold, the contracting officer need not contact each of the 
multiple awardees under the contract before selecting an order awardee 
if the contracting officer has information available to ensure that 
each awardee is provided a fair opportunity to be considered for each 
order. * * *
    (iii) Orders exceeding the simplified acquisition threshold. (A) 
Each order exceeding the simplified acquisition threshold shall be 
placed on a competitive basis in accordance with paragraph 
(b)(1)(iii)(B) of this section, unless supported by a written 
determination that one of the circumstances described at 
16.505(b)(2)(i) applies to the order and the requirement is waived on 
the basis of a justification that is prepared in accordance with 
16.505(b)(2)(ii)(B);
    (B) The contracting officer shall--
    (1) Provide a fair notice of the intent to make a purchase, 
including a clear description of the supplies to be delivered or the 
services to be performed and the basis upon which the selection will be 
made to all contractors offering the required supplies or services 
under the multiple-award contract; and
    (2) Afford all contractors responding to the notice a fair 
opportunity to submit an offer and have that offer fairly considered.
* * * * *
    (2) Exceptions to the fair opportunity process. (i) The contracting 
officer shall give every awardee a fair opportunity to be considered 
for a delivery-order or task-order exceeding $3,000 unless one of the 
following statutory exceptions applies:
    (A) The agency need for the supplies or services is so urgent that 
providing a fair opportunity would result in unacceptable delays.

[[Page 14558]]

    (B) Only one awardee is capable of providing the supplies or 
services required at the level of quality required because the supplies 
or services ordered are unique or highly specialized.
    (C) The order must be issued on a sole-source basis in the interest 
of economy and efficiency because it is a logical follow-on to an order 
already issued under the contract, provided that all awardees were 
given a fair opportunity to be considered for the original order.
    (D) It is necessary to place an order to satisfy a minimum 
guarantee.
    (E) For orders exceeding the simplified acquisition threshold, a 
statute expressly authorizes or requires that the purchase be made from 
a specified source.
    (ii) The justification for an exception to fair opportunity shall 
be in writing as specified in paragraphs (b)(2)(ii)(A) or (B) of this 
section.
    (A) Orders exceeding $3,000, but not exceeding the simplified 
acquisition threshold. The contracting officer shall document the basis 
for using an exception to the fair opportunity process. If the 
contracting officer uses the logical follow-on exception, the rationale 
shall describe why the relationship between the initial order and the 
follow-on is logical (e.g., in terms of scope, period of performance, 
or value).
    (B) Orders exceeding the simplified acquisition threshold. As a 
minimum, each justification shall include the following information and 
be approved in accordance with paragraph (b)(2)(ii)(C) of this section:
    (1) Identification of the agency and the contracting activity, and 
specific identification of the document as a ``Justification for an 
Exception to Fair Opportunity.''
    (2) Nature and/or description of the action being approved.
    (3) A description of the supplies or services required to meet the 
agency's needs (including the estimated value).
    (4) Identification of the exception to fair opportunity (see 
16.505(b)(2)) and the supporting rationale, including a demonstration 
that the proposed contractor's unique qualifications or the nature of 
the acquisition requires use of the exception cited. If the contracting 
officer uses the logical follow-on exception, the rationale shall 
describe why the relationship between the initial order and the follow-
on is logical (e.g., in terms of scope, period of performance, or 
value).
    (5) A determination by the contracting officer that the anticipated 
cost to the Government will be fair and reasonable.
    (6) Any other facts supporting the justification.
    (7) A statement of the actions, if any, the agency may take to 
remove or overcome any barriers that led to the exception to fair 
opportunity before any subsequent acquisition for the supplies or 
services is made.
    (8) The contracting officer's certification that the justification 
is accurate and complete to the best of the contracting officer's 
knowledge and belief.
    (9) Evidence that any supporting data that is the responsibility of 
technical or requirements personnel (e.g., verifying the Government's 
minimum needs or requirements or other rationale for an exception to 
fair opportunity) and which form a basis for the justification have 
been certified as complete and accurate by the technical or 
requirements personnel.
    (10) A written determination by the approving official that one of 
the circumstances in (b)(2)(i)(A) through (E) of this section applies 
to the order.
    (C) Approval. (1) For proposed orders exceeding the simplified 
acquisition threshold, but not exceeding $650,000, the ordering 
activity contracting officer's certification that the justification is 
accurate and complete to the best of the ordering activity contracting 
officer's knowledge and belief will serve as approval, unless a higher 
approval level is established in accordance with agency procedures.
    (2) For a proposed order exceeding $650,000, but not exceeding 
$12.5 million, the justification must be approved by the competition 
advocate of the activity placing the order, or by an official named in 
paragraph (b)(2)(ii)(C)(3) or (4) of this section. This authority is 
not delegable.
    (3) For a proposed order exceeding $12.5 million, but not exceeding 
$62.5 million (or, for DoD, NASA, and the Coast Guard, not exceeding 
$85.5 million), the justification must be approved by--
    (i) The head of the procuring activity placing the order;
    (ii) A designee who--
    (A) If a member of the armed forces, is a general or flag officer;
    (B) If a civilian, is serving in a position in a grade above GS-15 
under the General Schedule (or in a comparable or higher position under 
another schedule); or
    (iii) An official named in paragraph (b)(2)(ii)(C)(4) of this 
section.
    (4) For a proposed order exceeding $62.5 million (or, for DoD, 
NASA, and the Coast Guard, over $85.5 million), the justification must 
be approved by the senior procurement executive of the agency placing 
the order. This authority is not delegable, except in the case of the 
Under Secretary of Defense for Acquisition, Technology, and Logistics, 
acting as the senior procurement executive for the Department of 
Defense.
    (D) Posting. (1) Except as provided in paragraph (b)(2)(ii)(D)(5) 
of this section, within 14 days after placing an order exceeding the 
simplified acquisition threshold that does not provide for fair 
opportunity in accordance with 16.505(b), the contract officer shall--
    (i) Publish a notice in accordance with 5.301; and
    (ii) Make publicly available the justification required at 
(b)(2)(ii)(B) of this section.
    (2) The justification shall be made publicly available--
    (i) At the GPE http://www.fedbizopps.gov;
    (ii) On the Web site of the agency, which may provide access to the 
justifications by linking to the GPE; and
    (iii) Must remain posted for a minimum of 30 days.
    (3) In the case of an order permitted under paragraph (b)(2)(i)(A) 
of this subsection, the justification shall be posted within 30 days 
after award of the order.
    (4) Contracting officers shall carefully screen all justifications 
for contractor proprietary data and remove all such data, and such 
references and citations as are necessary to protect the proprietary 
data, before making the justifications available for public inspection. 
Contracting officers shall also be guided by the exemptions to 
disclosure of information contained in the Freedom of Information Act 
(5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in 
determining whether other data should be removed. Although the 
submitter notice process set out in Executive Order 12600 
``Predisclosure Notification Procedures for Confidential Commercial 
Information'' does not apply, if the justification appears to contain 
proprietary data, the contracting officer should provide the contractor 
that submitted the information an opportunity to review the 
justification for proprietary data before making the justification 
available for public inspection, redacted as necessary. This process 
must not prevent or delay the posting of the justification in 
accordance with the timeframes required in paragraphs (1) and (3).
    (5) The posting requirement of this section does not apply when 
disclosure would compromise the national security (e.g., would result 
in disclosure of

[[Page 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]

0
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

0
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


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