[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52852-52853]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24570]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 15

[FAC 2005-37; FAR Case 2008-034; Item IV; Docket 2009-0035, Sequence 1]
RIN 9000-AL44


Federal Acquisition Regulation; FAR Case 2008-034, Use of 
Commercial Services Item Authority

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

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are issuing an interim rule 
amending the Federal Acquisition Regulation (FAR) to implement section 
868 of the Duncan Hunter National Defense Authorization Act for Fiscal 
Year 2009. Section 868 provides that purchases of commercial services 
that are not offered and sold competitively in substantial quantities 
in the commercial marketplace may only be considered commercial items 
for the purposes of the FAR if the contracting officer determines in 
writing that the offeror has submitted sufficient information to 
evaluate, through price analysis, the reasonableness of the price of 
such services.

DATES: Effective Date: October 14, 2009.
    Comment Date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before December 14, 2009 to be 
considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-37, FAR case 2008-
034, by any of the following methods:
    <bullet> Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2008-034'' into the field ``Keyword''. Select the link that 
corresponds with FAR Case 2008-034. Follow the instructions provided to 
submit your comment. Please include your name, company name (if any), 
and ``FAR Case 2008-034'' on your attached document.
    <bullet> Fax: 202-501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-37, FAR 
case 2008-034, 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. Edward N. Chambers, Procurement 
Analyst, at (202) 501-3221 for clarification of content. Please cite 
FAC 2005-37, FAR case 2008-034. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat at (202) 501-
4755.

SUPPLEMENTARY INFORMATION:

A. Background

    Section 868 of the Duncan Hunter National Defense Authorization Act 
for Fiscal Year 2009 (Pub. L. 110-417) states that the FAR shall be 
amended with respect to the procurement of commercial services, 
specifically services that are not offered and sold competitively in 
substantial quantities in the commercial marketplace, but are of a type 
offered and sold competitively in substantial quantities in the 
commercial marketplace. These services may be considered commercial 
items only if the contracting officer has determined in writing that 
the offeror has submitted sufficient information to evaluate, through 
price analysis, the reasonableness of the price for such services. The 
rule details the information the contracting officer may consider in 
order to make this determination.
    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

    The interim rule is not expected 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 
interim rule primarily impacts actions required on the part of the 
Government by requiring a new written determination by the contracting 
officer. Since the current 15.403-3(a)(1) provides for contracting 
officers to obtain the information necessary to evaluate price 
reasonableness, this interim rule places no additional requirements on 
contractors. Therefore, an Initial Regulatory Flexibility Analysis has 
not been performed. The Councils will consider comments from small 
entities concerning the affected FAR part 15 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C. 601, et seq. (FAC 2005-37, FAR case 2008-034), in 
all correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Number 9000-
0013.

D. 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

[[Page 52853]]

compelling reasons exist to promulgate this interim rule without prior 
opportunity for public comment. This action is necessary because the 
rule implements section 868 of the Duncan Hunter National Defense 
Authorization Act (Pub. L. 110-417), which was signed on October 14, 
2008, and requires amending the FAR not later than 180 days after the 
date of enactment of the Act. However, pursuant to Public Law 98-577 
and FAR 1.501, the Councils will consider public comments received in 
response to this interim rule in the formation of the final rule.

List of Subjects in 48 CFR Part 15

    Government procurement.

    Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 15 as set forth below:

PART 15--CONTRACTING BY NEGOTIATION

0
1. The authority citation for 48 CFR part 15 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).


0
2. Amend section 15.403-1 by redesignating paragraphs (c)(3)(ii) and 
(c)(3)(iii) as (c)(3)(iii) and (c)(3)(iv), respectively, and adding a 
new paragraph (c)(3)(ii) to read as follows:


15.403-1  Prohibition on obtaining cost or pricing data (10 U.S.C. 
2306a and 41 U.S.C. 254b).

* * * * *
    (c) * * *
    (3) * * *
    (ii) In accordance with section 868 of Pub. L. 110-417:
    (A) When purchasing services that are not offered and sold 
competitively in substantial quantities in the commercial marketplace, 
but are of a type offered and sold competitively in substantial 
quantities in the commercial marketplace, they may be considered 
commercial items (thus meeting the purpose of 41 U.S.C 254b and 10 
U.S.C. 2306a for truth in negotiations) only if the contracting officer 
determines in writing that the offeror has submitted sufficient 
information to evaluate, through price analysis, the reasonableness of 
the price of such services.
    (B) In order to make this determination, the contracting officer 
may request the offeror to submit prices paid for the same or similar 
commercial items under comparable terms and conditions by both 
Government and commercial customers; and
     (C) If the contracting officer determines that the information 
described in paragraph (c)(3)(ii)(B) of this section is not sufficient 
to determine the reasonableness of price, other relevant information 
regarding the basis for price or cost, including information on labor 
costs, material costs and overhead rates may be requested.
* * * * *

0
3. Amend section 15.403-3 by adding paragraph (c)(3) to read as 
follows:


15.403-3  Requiring information other than cost or pricing data.

* * * * *
    (c) * * *
    (3) For services that are not offered and sold competitively in 
substantial quantities in the commercial marketplace, but are of a type 
offered and sold competitively in substantial quantities in the 
commercial marketplace, see 15.403-1(c)(3)(ii).
[FR Doc. E9-24570 Filed 10-13-09; 8:45 am]
BILLING CODE 6820-EP-S