14548 Federal Register / Vol. 76, No. 51 / Wednesday, March 16, 2011 / Rules and Regulations 

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. 

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: 

• 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. 

• 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 

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 multipleaward contracts. Section 863 specified 

enhancements that include— 

• 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 

• Providing notice in FedBizOpps of 

certain orders placed under multipleaward contracts, including FSS. 

• 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— 

• Offers were received from at least 

three qualified contractors; or 

• 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-ofExecutive-Departments-and-AgenciesSubject-Government), while still 

preserving the efficiencies of these 

contract vehicles. For this reason, the 


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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— 

• 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; 

• 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; 

• 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 multipleaward BPAs, rather than single-award 

BPAs, generally modeled after the 

preference for multiple-award taskand 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 multipleaward 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)); 

• 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 nonFSS 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; 

• 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 

• 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: 

• Orders at or below the micropurchase threshold. 

• Orders exceeding the micropurchase threshold but not exceeding 

the maximum-order threshold identified 

in the schedule contract. 

• Orders exceeding the maximumorder 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 micropurchase 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 micropurchase 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 


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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 micropurchase threshold. The rules for orders 

at or below the micro-purchase 

threshold remain unchanged. 

b. Orders exceeding the micropurchase 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 eBuy, 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 multipleaward 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 multipleaward 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 micropurchase 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 micropurchase 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 multipleaward 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 multipleaward 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 


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limitations that restrict the use of brandname 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, IndefiniteDelivery 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: 

■ 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 

■ 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 


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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 limitedsources 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). 

■ 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] 

■ 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 

■ 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 eBuy 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 

gsa.advantage@gsa.gov. 

* * * * * 

■ 6. Amend section 8.404 by— 

■ a. Revising the last sentence in 

paragraph (a); 

■ b. Redesignating paragraph (e) as 

paragraph (g); 

■ c. Adding new paragraphs (e) and (f); 

and 

■ 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 limitedsource 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). 

■ 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. 

■ 8. Amend section 8.405–1 by— 

■ a. Adding to the end of paragraph (a) 

‘‘For establishing BPAs and for orders 

under BPAs see 8.405–3.’’ 

■ b. Revising paragraphs (c) and (d); 

■ c. Redesignating paragraph (e) as 

paragraph (g); 

■ d. Adding new paragraphs (e) and (f); 

and 

■ 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 micropurchase 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 


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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 brandname 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. 

■ 9. Amend section 8.405–2 by— 

■ a. Adding a sentence to the end of 

paragraph (a); 

■ b. Removing from the first sentence in 

paragraph (b) ‘‘include the work’’ and 

adding ‘‘include a description of work’’ 

in its place; 

■ c. Revising the heading to paragraph 

(c)(2), and paragraphs (c)(2)(ii), (c)(2)(iii) 

and (c)(3); 

■ d. Revising the third sentence of 

paragraph (d); 

■ e. Removing from the end of 

paragraph (e)(6) the word ‘‘and’’; 

■ f. Removing from the end of paragraph 

(e)(7)(ii) ‘‘order.’’ and adding ‘‘order; 

and’’ in its place; and 

■ 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 micropurchase 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-fixedprices, 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). 

■ 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 firmfixed priced orders for— 

(1) Products with unit prices 

established in the BPA; or 


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(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 


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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 micropurchase 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 multipleaward 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 firmfixed 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) Multipleaward 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. 

■ 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. 

■ 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 


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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 solesource 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 limitedsources 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. 


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(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. 

■ 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 agencyprescribed 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 

■ 14. Amend section 16.505 by— 

■ a. Revising paragraph (a)(1) and the 

fourth sentence of paragraph (b)(1)(ii); 

■ b. Redesignating paragraphs (b)(1)(iii) 

and (b)(1)(iv) as paragraphs (b)(1)(iv) 

and (b)(1)(v), respectively; 

■ c. Adding a new paragraph (b)(1)(iii); 

and 

■ 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. 


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(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 


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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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