[Federal Register Volume 72, Number 210 (Wednesday, October 31, 2007)]
[Proposed Rules]
[Pages 61603-61605]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-5405]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 7, 8, 12, and 39

[FAR Case 2005-014; Docket 2007-0001; Sequence 9]
RIN 9000-AK83


Federal Acquisition Regulation; FAR Case 2005-014, SmartBUY

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to implement the Governmentwide 
Enterprise Software Licensing Program,

[[Page 61604]]

also known as SmartBUY. This action is necessary to comply with Office 
of Management and Budget Memorandum M-04-08, Maximizing Use of SmartBuy 
and Avoiding Duplication of Agency Activities with the President's 24 
E-Gov Initiatives, dated February 25, 2004. By leveraging the Federal 
Government Enterprise Software Licensing Program, the Government will 
achieve the maximum cost savings and favorable terms and conditions for 
acquiring software and software maintenance. This rule impacts 
contracting officers and other acquisition officials responsible for 
reviewing the terms, conditions, and prices for the acquisition of 
commercial software and software maintenance.

DATES: Interested parties should submit written comments to the FAR 
Secretariat on or before December 31, 2007 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAR case 2005-014, by any of 
the following methods:
    Federal eRulemaking Portal: http://www.regulations.gov.
    <bullet> To search for any document, first select under ``Step 1,'' 
``Documents with an Open Comment Period'' and select under ``Optional 
Step 2,'' ``Federal Acquisition Regulation'' as the agency of choice. 
Under ``Optional Step 3,'' select ``Proposed Rules''. Under ``Optional 
Step 4,'' from the drop down list, select ``Document Title'' and type 
the FAR case number ``2005-014''. Click the ``Submit'' button. Please 
include your name and company name (if any) inside the document. You 
may also search for any document by clicking on the ``Search for 
Documents'' tab at the top of the screen. Select from the agency field 
``Federal Acquisition Regulation'', and type ``2005-014'' in the 
``Document Title'' field. Select the ``Submit'' button.
    <bullet> Fax: 202-501-4067.
    <bullet> Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2005-
014, 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 Ms. Jeritta Parnell, Procurement 
Analyst, at (202) 501-4082 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat at (202) 501-4755. Please cite FAR case 2005-014.

SUPPLEMENTARY INFORMATION:

A. Background

    Pursuant to Section 5112 of the Clinger-Cohen Act of 1996 (40 
U.S.C. 11302), the Office of Management and Budget (OMB) is responsible 
for improving the acquisition and use of information technology (IT) by 
the Federal Government and designating Executive Agents for 
Governmentwide acquisitions of IT. To ensure that the Federal 
Government is maximizing its buying power to achieve the cost savings 
and favorable terms and conditions for commercial software, OMB created 
the SmartBUY initiative. GSA is designated as the Executive Agent for 
the SmartBUY initiative.
    This rule proposes to amend the FAR to ensure SmartBUY is 
considered during acquisition planning, and prescribes the policies and 
procedures for using SmartBUY enterprise agreements.
    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 Councils do not expect this proposed 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 the rule applies to commercial agreements under the SmartBUY 
Program that are based on existing negotiated contracts. These 
agreements direct contracting officers to consider established 
contracting vehicles. Small businesses have participated in the 
SmartBuy Program to date. In fact, three of the six existing agreements 
are with small businesses.
    An Initial Regulatory Flexibility Analysis has, therefore, not been 
performed. We invite comments from small businesses and other 
interested parties. The Councils will consider comments from small 
entities concerning the affected FAR Part 7, 8, 12, and 39 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. (FAR case 
2005-014), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 7, 8, 12, and 39

    Government procurement.

    Dated: October 22, 2007.
Al Matera,
Director, Office of Acquisition Policy.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 7, 8, 
12, and 39 as set forth below:
    1. The authority citation for 48 CFR parts 7, 8, 12, and 39 
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 7--ACQUISITION PLANNING

    2. Amend section 7.103 by adding paragraph (v) to read as follows:


7.103   Agency-head responsibilities.

* * * * *
    (v) Ensuring that agency planners fulfill requirements for 
commercial software or related services, such as software maintenance, 
in accordance with the SmartBUY program (see FAR Subpart 8.9).
    3. Amend section 7.105 by adding paragraph (b)(4)(ii)(B)(3) to read 
as follows:


7.105   Contents of written acquisition plans.

* * * * *
    (b) * * *
    (4) * * *
    (ii) * * *
    (B) * * *
    (3) Ordering through a SmartBUY agreement leverages Government user 
volume and achieves a substantial price discount.
* * * * *

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

    4. Add subpart 8.9 to read as follows:

Subpart 8.9--Acquisition of Commercial Software

Sec.
8.900 Scope of subpart.
8.901 Definitions.
8.902 General.
8.903 Policy.
8.904 Acquisition procedures.
8.905 Approval and Notification.


8.900   Scope of subpart.

    This subpart prescribes the policies and procedures for acquisition 
of commercial software or related services, such as software 
maintenance, through

[[Page 61605]]

the Governmentwide Enterprise Software Program, also known as SmartBUY.


8.901   Definitions.

    As used in this subpart--
    Enterprise software agreement (ESA) means an agreement established 
for agencies to use to acquire designated commercial software or 
related services, such as software maintenance.
    Software maintenance means activities performed and/or services 
provided by the original equipment manufacturer (OEM) as standard 
services to keep software functioning to the commercial specification, 
at established catalog or market prices, e.g., the right to receive and 
use upgraded versions of software, updates, and revisions.
    Software product manager means the Government official who manages 
an enterprise software agreement.


8.902   General.

    SmartBUY is a consolidated purchasing program for the acquisition 
of commercial software or related services, such as software 
maintenance. SmartBUY is designed to provide all agencies, regardless 
of their size, the greatest price discounts available to the Federal 
Government. The SmartBUY Software Program (see website at http://www.gsa.gov/smartbuy) promotes the use of Enterprise Software 
Agreements (ESAs) with contractors, called SmartBUY agreements, that 
allow the Government to obtain favorable terms and pricing for 
commercial software or related services, such as software maintenance.


8.903   Policy.

    Prior to issuing contracts for commercial software or related 
services, such as software maintenance, agencies shall review the 
SmartBUY agreements at http://www.gsa.gov/smartbuy or http://www.esi.mil. Federal agencies shall place an order to fulfill 
requirements for commercial software or related services, such as 
software maintenance, when a SmartBUY agreement is available and is 
applicable to the agency's requirement and volume.


8.904   Acquisition procedures.

    (a) The contracting officer or other ordering official must review 
the terms, conditions, and prices using market research or other 
procurement practices to determine if commercial software or related 
services, such as software maintenance, is available through a SmartBUY 
agreement.
    (b) When the terms, conditions, and prices represent a best value 
to the Government, the contracting officer or other ordering official 
shall place an order to fulfill the requirement for commercial software 
or related services, such as software maintenance, through a SmartBUY 
agreement.
    (c) When an existing SmartBUY agreement does not represent the best 
value to the Government, the contracting officer or other ordering 
official should allow the contractor an opportunity to provide the same 
or a better value under the SmartBUY agreement before using alternate 
procurement methods. In such cases, the contracting officer or other 
ordering official should notify the SmartBUY program office Software 
Product Manager of specific concerns, so that the SPM can take action 
to potentially improve an existing SmartBUY agreement's terms, 
conditions or prices through the SmartBUY website.
    (d) When an available SmartBUY agreement will not be used, the 
contracting officer or other ordering official must comply with the 
approval and notification procedures in 8.905.
    (e) When the required commercial software or related services, such 
as software maintenance, is no[0]t covered by a SmartBUY agreement, the 
contracting officer may fulfill a requirement using other procurement 
methods.


8.905   Approval and Notification.

    (a) The contracting officer or ordering official must get approval 
from the agency Senior Procurement Executive and the agency Chief 
Information Officer, or as provided by agency procedures, when not 
using an available SmartBUY agreement. The approval shall--
    (1) Describe the agency's requirement;
    (2) Explain the reason for not using an existing SmartBUY 
agreement; and
    (3) Describe how the agency will satisfy its needs for commercial 
software and negotiate a fair and reasonable price.
    (b) The contracting officer or ordering official must notify GSA 
when an available SmartBUY agreement is not used to acquire commercial 
software or related services, such as software maintenance, by sending 
a copy of the approval to GSA at-- General Services Administration, 
Deputy Associate Administrator, Office of Technology Strategy (ME), 
1800 F Street, NW, Washington, DC 20406; or send via e-mail to 
<a href="/cdn-cgi/l/email-protection#e0b38d819294a2b5b9978189968592a0879381ce878f96"><span class="__cf_email__" data-cfemail="dd8eb0bcafa99f8884aabcb4abb8af9dbaaebcf3bab2ab">[email protected]</span></a>.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

    5. Amend section 12.212 by adding paragraph (c) to read as follows:


12.212   Computer software.

* * * * *
    (c) Acquisition officials shall consider using SmartBUY Enterprise 
Software Agreements when acquiring commercial software or related 
services, such as software maintenance (see FAR Subpart 8.9).

PART 39--ACQUISITION OF INFORMATION TECHNOLOGY

    6. Amend section 39.101 by revising paragraph (b) to read as 
follows:


39.101   Policy.

* * * * *
    (b)(1) In acquiring information technology, agencies shall identify 
their requirements pursuant to--
    (i) OMB Circular A-130, including consideration of security of 
resources, protection of privacy, national security and emergency 
preparedness, accommodations for individual with disabilities, and 
energy efficiency; and
    (ii) FAR 8.903 and the availability of a SmartBUY Agreement.
    (2) When developing an acquisition strategy, contracting officers 
should consider the rapidly changing nature of information technology 
through market research (see Part 10) and the application of technology 
refreshment techniques.
* * * * *
[FR Doc. 07-5405 Filed 10-30-07; 8:45 am]
BILLING CODE 6820-EP-S


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