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[Federal Register: July 13, 2010 (Volume 75, Number 133)]
[Rules and Regulations]               
[Page 40714-40716]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13jy10-19]                         

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DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 205 and 210

 
Defense Federal Acquisition Regulation Supplement; Publication of 
Notification of Bundling of Contracts of the Department of Defense 
(DFARS Case 2009-D033)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Interim rule with request for comments.

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SUMMARY: DoD is issuing an interim rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to implement section 820 of 
the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 
111-84, enacted October 28, 2009).

DATES: Effective Date: July 13, 2010.
    Comment Date: Comments on the interim rule should be submitted in 
writing to the address shown below on or before September 13, 2010, to 
be considered in the formation of the final rule.

ADDRESSES: Submit comments identified by DFARS Case 2009-D033, using 
any of the following methods:
    [cir] Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
    [cir] E-mail: dfars@osd.mil. Include DFARS Case 2009-D033 in the 
subject line of the message.
    [cir] Fax: 703-602-0350.
    [cir] Mail: Defense Acquisition Regulations System, Attn: Ms. 
Meredith Murphy, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Meredith Murphy, Defense Acquisition 
Regulations System, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense 
Pentagon, Washington, DC 20301-3060. Telephone 703-602-1302; facsimile 
703-602-0350.

[[Page 40715]]

SUPPLEMENTARY INFORMATION:

A. Background

    This DFARS case implements section 820 of the National Defense 
Authorization Act for Fiscal Year 2010. Section 820 is entitled 
``Publication of Notification of Bundling of Contracts of the 
Department of Defense.''
    The new statute requires DoD contracting officers to publish a 
notification ``consistent with the requirements'' of FAR 10.001(c)(2) 
on FedBizOpps.gov, or any successor site, at least 30 days prior to the 
release of a solicitation for a bundled acquisition. In addition, if 
the DoD agency has determined that ``measurably substantial benefits 
are expected to be derived as a result of bundling,'' the notification 
must include a brief description of those benefits. The acquisitions 
covered by section 820 are defined at 820(b) as those that are funded 
entirely by DoD funds and covered by FAR 7.107, entitled ``Additional 
requirements for acquisitions involving bundling.''
    The statute, at section 820(c), provides that nothing in the new 
requirement shall be construed to--
    (a) Alter any other publication or synopsis requirement;
    (b) Require the public availability of information that is 
protected by the FOIA (5 U.S.C. 552(b)); or
    (c) Require contracting officers to delay the issuance of a 
solicitation in order to meet the 30-day period (between the 
notification and the release of the solicitation) if the expedited 
issuance of the solicitation is otherwise authorized under any other 
requirement of law or regulation.
    The FAR, at 10.001(c), addresses the market research requirements 
for agencies contemplating a bundled contract award. Currently, FAR 
10.001(c)(2) requires that the agency, at least 30 days before release 
of a solicitation for a potential bundled procurement or 30 days prior 
to placing a bundled order without a solicitation, must notify any 
affected incumbent small businesses of (a) the intention to bundle the 
requirement and (b) how the small businesses can contact the 
appropriate SBA representative. This requirement is somewhat different 
from that in section 820. Therefore, a cross-reference to the section 
820 requirement has been added at DFARS 210.001(c)(2).
    The notification requirement is added as a new DFARS 205.205-70. 
FAR 5.205 addresses special synopsis situations. It currently covers 
R&D advance notices, public-private competitions under OMB-Circular A-
76, and other requirements that differ somewhat from the general 
synopsis requirement at FAR 5.201. Therefore, this appears to be the 
proper location for the bundling notification. However, because the new 
requirement applies only when using DoD funds, it is proposed as a new 
DFARS section 205.205-70, entitled ``Notification of bundling of DoD 
contracts.'' The basic publication requirement is established here, but 
it was not deemed necessary to repeat the limitations and exclusions at 
section 820(c) of the statute because nothing in the new language 
states or implies that the opposite is, or could be, the case.
    This is not a significant regulatory action and, therefore, was not 
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.

B. Regulatory Flexibility Act

    DoD does not expect that this interim rule will 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 the rule does not impose any additional requirements on small 
businesses. In fact, availability of the notice of potential bundling 
may enable small businesses to compete for more work of which the firms 
might otherwise have been unaware. Prior to enactment of this statute, 
FAR 10.001(c)(2) required notification of incumbent small businesses 
only in circumstances where one of the requirements to be bundled is 
currently held by a small business. Such notification of incumbent 
small businesses is designed to afford them the opportunity to react 
prior to a final decision on bundling existing requirements, thus 
providing these small businesses with an opportunity to engage with 
Government requirements officials in the interest of retaining 
unbundled business (if bundled, the small business might not have the 
necessary capability to enable it to bid). However, the new provision 
enables any small businesses, whether or not an incumbent contractor, 
to become aware of a potential bundled opportunity, generally 30 days 
prior to the release of the solicitation. This broader notification 
requirement will provide a much wider segment of the small-business 
community awareness of upcoming business opportunities and then to 
either (1) submit a proposal for the bundled procurement or (2) 
interact with the requiring agency to request unbundling before the 
solicitation is finalized. Because of the potential for positive impact 
on small businesses, an Initial Regulatory Flexibility Analysis has 
been performed and is summarized above.
    DoD invites comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD will also consider comments from small entities concerning the 
existing regulations in subparts affected by this rule in accordance 
with 5 U.S.C. 610. Interested parties must submit such comments 
separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D033) in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the interim rule 
does not contain any information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
chapter 35, et seq.

D. Determination To Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD) that urgent and compelling circumstances exist to 
promulgate this interim rule without prior opportunity for public 
comments pursuant to 41 U.S.C. 418b and FAR 1.501-3(b). This action is 
necessary because section 820 of the National Defense Authorization Act 
for Fiscal Year 2010 became effective upon enactment, October 28, 2009. 
The rule implements section 820's requirement for contracting officers 
to publish a notification on FedBizOpps.gov at least 30 days prior to 
the release of a solicitation for a bundled acquisition. It is 
imperative that DoD contracting officers be made aware of this 
requirement as quickly as possible so that small businesses may have 
the benefit of the procurement planning information and the agency can 
comply with the statutory requirement. DoD 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 205 and 210

    Government procurement.

Ynette R. Shelkin,
Editor, Defense Acquisition Regulations System.

0
Therefore, 48 CFR parts 205 and 210 are amended as follows:
0
1. The authority citation for 48 CFR parts 205 and 210 continues to 
read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

[[Page 40716]]

PART 205--PUBLICIZING CONTRACT ACTIONS

0
2. Section 205.205 is added to read as follows:

205.205  Special situations.

205.205-70  Notification of bundling of DoD contracts.

    (a) When a proposed acquisition is funded entirely using DoD funds 
and potentially involves bundling, the contracting officer shall, at 
least 30 days prior to the release of a solicitation or 30 days prior 
to placing an order without a solicitation, publish in FedBizOpps.gov 
(or any successor site) a notification of the intent to bundle the 
requirement. In addition, if the agency has determined that measurably 
substantial benefits are expected to be derived as a result of 
bundling, the notification shall include a brief description of those 
benefits (see FAR 7.107).
    (b) This requirement is in addition to the notification 
requirements at FAR 10.001(c)(2)(i) and (ii).

PART 210--MARKET RESEARCH

0
3. Paragraph (c)(2) is added to section 210.001 to read as follows:

210.001  Policy.

* * * * *
    (c)(2) In addition to the notification requirements at FAR 
10.001(c)(2)(i) and (ii), see 205.205-70 for the bundling notification 
publication requirement.

[FR Doc. 2010-16898 Filed 7-12-10; 8:45 am]
BILLING CODE 5001-08-P
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