14346 Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Proposed Rules

for the purpose of computing allowable

cancellation charges.

(End of clause)

[FR Doc. 95–6438 Filed 3–15–95; 8:45 am]

BILLING CODE 6820–34–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 6, 16 and 52

[FAR Case 94–711]

Federal Acquisition Regulation; Task

and Delivery Order Contracts

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council are

proposing to amend Federal Acquisition

Regulations (FAR) to implement the

statutory requirements of the Federal

Acquisition Streamlining Act with

regard to task and delivery order

contracts. This regulatory action is

subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993.

DATES: Comment Due Date: Comments

should be submitted on or before May

15, 1995 to be considered in the

formulation of a final rule.

Public Meeting: A public meeting will

be held on April 13, 1995, at 1:00 p.m.

Oral/Written Statements: Views to be

presented at the public meeting should

be sent, in writing, to the FAR

Secretariat, at the address given below,

not later than April 10, 1995.

ADDRESSES: Interested parties should

submit written comments to: General

Services Administration, FAR

Secretariat (VRS), 18th & F Streets, NW,

Room 4037, Washington, DC 20405,

Telephone: (202) 501–4755.

The public meeting will be held at:

General Services Administration

Auditorium, 18th & F Streets, NW, First

Floor, Washington, DC 20405.

Please cite FAR case 94–711 in all

correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: Mr.

Ed McAndrew, Special Contracting

Team Leader, at (202) 501–1474 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4037, GSA Building,

Washington, DC 20405 (202) 501–4755.

Please cite FAR case 94–711.

SUPPLEMENTARY INFORMATION:

A. Background

The Federal Acquisition Streamlining

Act of 1994 (Pub. L. 103–355) (the Act)

provides authorities that streamline the

acquisition process and minimize

burdensome government-unique

requirements. Major changes can be

expected in the acquisition process as a

result of the Act’s implementation.

FAR Case 94–711

This notice announces FAR revisions

developed under FAR case 94–711

which implement the requirements of

sections 1004 and 1054, of the Act. Both

of these sections contain statutory

requirements for the award of task and

delivery order contracts, the issuance of

orders under such contracts and the

award of such contracts for advisory and

assistance services.

Public Meeting. The FAR Council is

interested in an exchange of ideas and

opinions on this rule. For that reason,

the FAR Council is conducting a series

of public meetings. A public meeting

will be held on April 13, 1995, to enable

the public to present its views on this

rule. This rule will only be discussed at

the public meeting session. Any

subsequent public meetings will be

devoted to other revisions to the FAR.

The public is encouraged to furnish its

views; the Council anticipates that

public comments will be very helpful in

formulating final rules.

Persons or organizations wishing to

make presentations will be allowed 10

minutes each, provided they notify the

FAR Secretariat at (202) 501–4755 and

submit written statements of the

presentation by April 10, 1995. Persons

or organizations with similar positions

are encouraged to select a common

spokesman for presentation of their

views. This meeting, in conjunction

with this Federal Register notice

soliciting public comments on the rule,

will be the only opportunity for the

public to present its views.

B. Regulatory Flexibility Act

The proposed changes may 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 may result in more

opportunities for small businesses to

compete for awards as a result of the

multiple award preference. There is a

potential negative impact resulting from

consolidation of contract requirements

under a task or delivery order contract;

however, it is expected that this

negative impact could be mitigated by

an increase in the opportunities for

small businesses to receive

subcontracts. Small businesses could

also form joint ventures to bid on larger

contract requirements. An Initial

Regulatory Flexibility Analysis (IRFA)

has been prepared and will be provided

to the Chief Counsel for Advocacy for

the Small Business Administration.

Comments from small entities

concerning the affected FAR subpart

will be considered in accordance with 5

U.S.C. 610. Such comments must be

submitted separately and should cite 5

U.S.C. 601, et seq. (FAR Case 94–711),

in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the proposed changes

to the FAR do not impose recordkeeping

or information collection requirements,

or collections of information from

offerors, contractors, or members of the

public which 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 6, 16

and 52

Government procurement.

Dated: March 9, 1995.

Barry Cohen,

Project Manager for the Implementation of

the Federal Acquisition Streamlining Act of

1994.

Therefore, it is proposed that 48 CFR

Parts 6, 16 and 52 be amended as set

forth below:

PART 6—COMPETITION

REQUIREMENTS

1. The authority citation for 48 CFR

Parts 6, 16 and 52 continues to read as

follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

2. Section 6.001 is amended by

adding paragraph (f) to read as follows:

6.001 Applicability.

* * * * *

(f) Orders placed against task order

and delivery order contracts entered

into pursuant to 48 CFR (FAR) part 16,

subpart 16.5.

PART 16—TYPES OF CONTRACTS

3. Section 16.500 is added to read as

follows:

16.500 Scope of subpart.

This subpart prescribes policies and

procedures for making awards of

indefinite delivery contracts and

establishes a preference scheme for
Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Proposed Rules 14347

making multiple awards of delivery

order contracts and task order contracts.

This subpart does not limit the use of

other than full and open competitive

procedures authorized by 48 CFR (FAR)

part 6. The preference scheme

established by this subpart and the

limitations on the use of contracts for

advisory and assistance services do not

apply to contracts subject to the

procedures of 48 CFR (FAR) parts 36,

38, 39 and 41.

16.501 [Redesignated and amended]

4. Section 16.501 is redesignated as

16.501–1 and is amended by removing

paragraph (c).

5. Section 16.501–2 is added to read

as follows:

16.501–2 Definitions.

As used in this subpart—

Advisory and assistance services has

the same meaning as set forth in 48 CFR

(FAR) 37.201.

Delivery order contract means a

contract for supplies that does not

procure or specify a firm quantity of

supplies (other than a minimum or

maximum quantity) and that provides

for the issuance of orders for the

delivery of supplies during the period of

the contract.

Task order contract means a contract

for services that does not procure or

specify a firm quantity of services (other

than a minimum or maximum quantity)

and that provides for the issuance of

orders for the performance of tasks

during the period of the contract.

6. Section 16.503 is amended in the

introductory text of paragraph (a) by

removing the word ‘‘specific’’, and by

revising paragraphs (a)(2) and (b) and

adding (a)(3) and (d) to read as follows:

16.503 Requirements contracts.

(a) * * *

(2) In addition to other required

provisions and clauses, a solicitation for

a requirements contract shall—

(i) Specify the period of the contract

including the number of options and the

period for which the contract may be

extended under each option, if any;

(ii) Specify the maximum quantity or

dollar value of services or supplies to be

acquired under the contract;

(iii) Include a statement of work,

specifications or other description that

reasonably describes the general scope,

nature, complexity, and purpose of the

supplies or services to be acquired

under the contract in a manner that will

enable a prospective offeror to decide

whether to submit an offer; and

(iv) State the procedures that will be

used in issuing orders.

(3) The contract may specify

maximum or minimum quantities that

the Government may order under each

individual order and the maximum that

it may order during a specified period

of time.

(b) Application. A requirements

contract may be appropriate for

acquiring any supplies or services when

the Government anticipates recurring

requirements but cannot predetermine

the precise quantities of supplies or

services that designated Government

activities will need during a definite

period. Funds are obligated by each

delivery order, not by the contract itself.

* * * * *

(d) Limitations on use of requirements

contracts for advisory and assistance

services in excess of three years and

$10,000,000. (1) Except as provided in

16.503(d)(2), no solicitation may be

issued for a requirements contract for

advisory and assistance services in

excess of three years and $10,000,000

(including all options) which does not

provide for multiple awards, unless the

head of the agency or designee

determines in writing that the services

required are so unique or highly

specialized that it is not practicable to

award more than one contract.

(2) The limitation at 16.503(d)(1) is

not applicable to the acquisition of

supplies or services that includes the

acquisition of advisory and assistance

services if the head of an agency or

designee determines that the advisory

and assistance services are necessarily

incident to, and not a significant

component of, the contract.

7. Section 16.504 is amended in the

introductory text of paragraph (a) by

removing the word ‘‘specific’’, and by

adding paragraphs (a)(4) and (c) to read

as follows:

16.504 Indefinite-quantity contracts.

(a) * * *

(4) In addition to other required

provisions and clauses, a solicitation for

an indefinite-quantity contract shall—

(i) Specify the period of the contract

including the number of options and the

period for which the contract may be

extended under each option, if any;

(ii) Specify the total minimum and

maximum quantity or dollar value of

services or supplies to be acquired

under the contract;

(iii) Include a statement of work,

specifications, or other description, that

reasonably describes the general scope,

nature, complexity, and purpose of the

supplies or services to be acquired

under the contract in a manner that will

enable a prospective offeror to decide

whether to submit an offer;

(iv) State the procedures that will be

used in issuing orders;

(v) If multiple awards may be made,

include the provision at 48 CFR (FAR)

52.216–27, Election to Award Single or

Multiple Task Order Contracts or

Delivery Order Contracts, to notify

offerors that more than one contract may

be awarded; and

(vi) If an award of a task order

contract for advisory and assistance

services in excess of three years and

$10,000,000 (including all options) is

anticipated, include the provision at 48

CFR (FAR) 52.216–28, Notice of Intent

to Make Multiple Awards Under a Task

Order Contract for Advisory and

Assistance Services That Exceeds Three

Years and $10,000,000, unless a

determination to make a single award is

made under 16.504(c)(2)(i)(A).

* * * * *

(c) Multiple award preference—(1)

General preference. Except for

indefinite quantity contracts for

advisory and assistance services as

provided in 16.504(c)(2), the contracting

officer shall, to the maximum extent

practicable, give preference to making

multiple awards of indefinite-quantity

contracts under a single solicitation for

the same or similar supplies or services

to two or more sources. In making a

determination as to whether multiple

awards are appropriate, the contracting

officer shall exercise sound business

judgment as part of acquisition

planning. Multiple awards should not

be made when—

(i) Only one contractor is capable of

providing performance at the level of

quality required because the supplies or

services are unique or highly

specialized;

(ii) Based on the contracting officer’s

knowledge of the market and

consideration of the cost to the

Government of administration of

multiple contracts, more favorable terms

and conditions, including pricing, will

be provided if a single award is made;

(iii) The nature of the work to be

performed under each order is integrally

related;

(iv) Making multiple awards would be

inconsistent with other provisions of

law;

(v) The total estimated value of the

contract is less than the simplified

acquisition threshold; or

(vi) The contracting officer determines

that multiple awards would not be in

the best interests of the Government.

(2) Contracts for advisory and

assistance services. (i) Except as

provided in 16.504(c)(2)(ii), if an

indefinite quantity contract for advisory

and assistance services will not exceed

three years and $10,000,000, including

all options, a contracting officer need
14348 Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Proposed Rules

not give preference to making multiple

awards. If an indefinite quantity

contract for advisory and assistance

services is to exceed three years and

$10,000,000, including all options,

multiple awards shall be made unless—

(A) The head of the agency or

designee determines in writing, prior to

the issuance of the solicitation, that the

services required under the task order

contract are so unique or highly

specialized that it is not practicable to

award more than one contract;

(B) The head of the agency or

designee determines in writing, after the

evaluation of offers, that only one

offeror is capable of providing the

services required at the level of quality

required; or

(C) Only one offer is received.

(ii) The requirements of 16.504(c)(2)(i)

are not applicable to the acquisition of

supplies or services that includes the

acquisition of advisory and assistance

services if the head of an agency or

designee determines that the advisory

and assistance services are necessarily

incident to, and not a significant

component of, the contract.

8. Sections 16.505 and 16.506 are

redesignated as 16.506 and 16.505,

respectively, and the newlyredesignated 16.505 is revised and the

newly-redesignated 16.506 is amended

by revising the heading and adding

paragraphs (f) and (g) to read as follows:

16.505 Ordering.

(a) General. (1) When placing orders

under this subpart, a separate notice

under 48 CFR (FAR) 5.201 is not

required.

(2) The ordering officer shall ensure

that individual orders clearly describe

all services to be performed or supplies

to be delivered. The ordering officer

shall also ensure that orders are within

the scope, period, or maximum value of

the contract.

(3) The contracting officer shall

include in the contract Schedule the

names of the activity or activities

authorized to issue orders.

(4) If appropriate, authorization for

placing oral orders may be included in

the contract Schedule; provided, that

procedures have been established for

obligating funds and that oral orders are

confirmed in writing.

(5) Orders may be placed by written

telecommunication or other electronic

means, if provided for in the contract.

(6) Orders placed under indefinitedelivery contracts shall contain the

following information:

(i) Date of order.

(ii) Contract number and order

number.

(iii) Item number and description,

quantity, and unit price.

(iv) Delivery or performance date.

(v) Place of delivery or performance

(including consignee).

(vi) Packaging, packing, and shipping

instructions, if any.

(vii) Accounting and appropriation

data.

(viii) Any other pertinent information.

(7) No protest under 48 CFR (FAR)

part 33 is authorized in connection with

the issuance or proposed issuance of an

order under a task order contract or

delivery order contract except for a

protest on the grounds that the order

increases the scope, period or maximum

value of the contract.

(b) Orders under multiple award task

or delivery order contracts. (1) Except as

provided for in 16.505(b)(2), for orders

issued under multiple delivery order

contracts or multiple task order

contracts, each awardee shall be

provided a fair opportunity to be

considered for each order in excess of

$2,500. In determining the procedures

for providing awardees a fair

opportunity to be considered for each

order, contracting officers shall exercise

broad discretion and may consider

factors such as past performance,

quality of deliverables, cost control,

price, cost, or other factors that the

contracting officer, in the exercise of

sound business judgment, believes are

relevant to the placement of orders.

Such procedures need not comply with

the competition requirements of 48 CFR

(FAR) part 6. The contracting officer

need not request written proposals or

conduct discussions with multiple

contractors before issuing orders unless

the contracting officer determines such

actions to be necessary.

(2) Awardees need not be given a fair

opportunity to be considered for a

particular order in excess of $2,500 if

the contracting officer determines that—

(i) The agency need for such services

or supplies is of such urgency that

providing such opportunity would

result in unacceptable delays;

(ii) Only one such contractor is

capable of providing such services or

supplies required at the level of quality

required because the services or

supplies ordered are unique or highly

specialized;

(iii) The order should be issued on a

sole-source basis in the interest of

economy and efficiency as a logical

follow-on to an order already issued

under the contract; or

(iv) It is necessary to place an order

to satisfy a minimum guarantee.

(3) Soliciting offers from one or more

awardees under a multiple award task

order contract or delivery order contract

shall satisfy the ‘‘competing

independently’’ requirements of 48 CFR

(FAR) 15.804–3(b)(3).

(4) The head of the agency shall

designate a task order contract and

delivery order contract ombudsman

who shall be responsible for reviewing

complaints from contractors on task

order contracts and delivery order

contracts. The ombudsman shall review

complaints from the contractors and

ensure that all contractors are afforded

a fair opportunity to be considered,

consistent with the procedures in the

contract. The ombudsman shall be a

senior agency official who is

independent of the contracting officer

and may be the agency’s competition

advocate.

(c) Limitation on ordering period for

task order contracts for advisory and

assistance services. (1) Except as

provided for in 16.505(c)(2), the

ordering period of a task order contract

for advisory and assistance services,

including all options or modifications,

may not exceed five years unless a

longer period is specifically authorized

in a law that is applicable to such a

contract. Notwithstanding the five year

limitation or the requirements of 48 CFR

(FAR) part 6, a task order contract for

advisory and assistance services may be

extended on a sole-source basis only

once for a period not to exceed six

months if—

(i) The head of the agency or designee

determines that the award of a followon contract is delayed by circumstances

that were not reasonably foreseeable at

the time the initial contract was entered

into; and

(ii) The extension is necessary to

ensure continuity of services pending

the award of the follow-on contract.

(2) The limitation on ordering period

contained in 16.505(c)(1) is not

applicable to the acquisition of supplies

or services that includes the acquisition

of advisory and assistance services if the

head of an agency or designee

determines that the advisory and

assistance services are necessarily

incident to, and not a significant

component of, the contract.

16.506 Solicitation provisions and

contract clauses.

* * * * *

(f) The contracting officer shall insert

the provision at 48 CFR (FAR) 52.216–

27, Election to Award Single or Multiple

Task Order Contracts or Delivery Order

Contracts, in solicitations for task or

delivery order contracts that may result

in multiple contract awards. This

provision shall not be used for advisory

and assistance services contracts.

(g) In accordance with

16.504(a)(4)(vi), the contracting officer
Federal Register / Vol. 60, No. 51 / Thursday, March 16, 1995 / Proposed Rules 14349

shall insert the provision at 48 CFR

(FAR) 52.216–28, Notice of Intent to

Make Multiple Awards Under a Task

Order Contract for Advisory and

Assistance Services That Exceeds Three

Years and $10,000,000, in solicitations

for task order contracts for advisory and

assistance services that exceed three

years and $10,000,000 (including all

options) provided that no determination

is made under 16.504(c)(2)(i)(A).

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

9. Section 52.216–18 is amended in

the introductory text by removing

‘‘16.505(a)’’ and inserting ‘‘16.506(a)’’ in

its place, and revising the clause date

and paragraphs (b) and (c) to read as

follows:

52.216–18 Ordering.

* * * * *

ORDERING (XXX 1995)

* * * * *

(b) All delivery orders or task orders are

subject to the terms and conditions of this

contract. In the event of conflict between a

delivery order or task order and this contract,

the contract shall control.

(c) If mailed, a delivery order or task order

is considered ‘‘issued’’ when the Government

deposits the order in the mail. Orders may be

issued orally, by written

telecommunications, or by other electronic

means only if authorized in the Schedule.

(End of clause)

10. Section 52.216–19 is amended by

revising the section heading,

introductory text and clause heading

and date to read as follows:

52.216–19 Order Limitations.

As prescribed in 16.506(b), insert a

clause substantially the same as follows

in solicitations and contracts when a

definite-quantity contract, a

requirements contract, or an indefinitequantity contract is contemplated:

ORDER LIMITATIONS (XXX 1995)

* * * * *

52.216–20 [Amended]

11. Section 52.216–20 is amended in

the introductory text by removing

‘‘16.505(c)’’ and inserting ‘‘16.506(c)’’ in

its place, revising the clause date to read

‘‘(XXX 1995)’’, and in the first sentence

of paragraph (c) by removing the word

‘‘Delivery-’’.

52.216–21 [Amended]

12. Section 52.216–21 is amended in

the introductory text by removing

‘‘16.505(d)’’ and inserting ‘‘16.506(d)’’

in its place; in the clause heading by

removing the date ‘‘(APR 1984)’’ and

inserting ‘‘(XXX 1995);’’ in the second

sentence of paragraph (b) by removing

the word ‘‘Delivery-’’; and in the

introductory texts of Alternates III and

IV by removing the phrase ‘‘or labor

surplus area’’ and revising the Alternate

dates to read ‘‘(XXX 1995)’’.

52.216–22 [Amended]

13. Section 52.216–22 is amended in

the introductory text by removing

‘‘16.505(e)’’ and inserting ‘‘16.506(e)’’ in

its place; in the clause heading by

removing the date ‘‘(APR 1984)’’ and

inserting ‘‘(XXX 1995)’’ in its place; and

in the first sentence of paragraph (c) by

removing the word ‘‘Delivery-’’.

14. Section 52.216–27 is added to

read as follows:

52.216–27 Election to Award Single or

Multiple Task Order Contracts or Delivery

Order Contracts.

As prescribed in 16.506(f), insert the

following provision:

ELECTION TO AWARD SINGLE OR

MULTIPLE TASK ORDER CONTRACTS OR

DELIVERY ORDER CONTRACTS (XXX 1995)

The Government may elect to award a

single delivery order contract or task order

contract or to award multiple task order

contracts or delivery order contracts for the

same or similar services or supplies to two

or more sources under this solicitation.

(End of provision)

15. Section 52.216–28 is added to

read as follows:

52.216–28 Notice of Intent to Make

Multiple Awards Under a Task Order

Contract for Advisory and Assistance

Services That Exceeds Three Years and

$10,000,000.

As prescribed in 16.506(g), insert the

following provision:

NOTICE OF INTENT TO MAKE MULTIPLE

AWARDS UNDER A TASK ORDER

CONTRACT FOR ADVISORY AND

ASSISTANCE SERVICES THAT EXCEEDS

THREE YEARS AND $10,000,000 (XXX 1995)

The Government intends to award multiple

contracts for the same or similar advisory and

assistance services to two or more sources

under this solicitation unless the

Government determines, after evaluation of

offers, that only one offeror is capable of

providing the services at the level of quality

required.

(End of provision)

[FR Doc. 95–6439 Filed 3–15–95; 8:45 am]

BILLING CODE 6820–34–P