54008 Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 

12.503 Applicability of certain laws to 

Executive agency contracts for the 

acquisition of commercial items. 

(a) * * * 

(7) Section 806(a)(3) of Pub. L. 102– 

190, as amended by Sections 2091 and 

8105 of Pub. L. 103–355, Payment 

Protections for Subcontractors and 

Suppliers (see 28.106–6). 

* * * * * 

■ 3. Amend section 12.504 by adding 

paragraph (a)(13) to read as follows: 

12.504 Applicability of certain laws to 

subcontracts for the acquisition of 

commercial items. 

(a) * * * 

(13) Section 806(a)(3) of Pub. L. 102– 

190, as amended by Sections 2091 and 

8105 of Pub. L. 103–355, Payment 

Protections for Subcontractors and 

Suppliers (see 28.106–6). 

* * * * * 

[FR Doc. E8–21381 Filed 9–16–08; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 13 

[FAC 2005–27; FAR Case 2008–002; Item 

VIII; Docket 2008–0001; Sequence 11] 

RIN 9000–AL02 

Federal Acquisition Regulation; FAR 

Case 2008–002, Extension of Authority 

for Use of Simplified Acquisition 

Procedures for Certain Commercial 

Items 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on a final rule 

amending the Federal Acquisition 

Regulation (FAR) to implement Section 

822 of the National Defense 

Authorization Act for Fiscal Year 2008 

(Pub. L. 110–181). 

DATES: Effective Date: September 17, 

2008. 

FOR FURTHER INFORMATION CONTACT Mr. 

Michael Jackson, Procurement Analyst, 

at (202) 208–4949 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–27, FAR case 

2008–002. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule amends the FAR to 

implement Section 822 of the National 

Defense Authorization Act for Fiscal 

Year 2008 (Pub. L. 110–181). Section 

822 amends Section 4202(e) of the 

Clinger-Cohen Act of 1996 (division D 

of Pub. L. 104–106; 110 Stat. 652; 10 

U.S.C. 2304 note) by extending until 

January 1, 2010, the timeframe in which 

an agency may use simplified 

procedures to purchase commercial 

items in amounts greater than the 

simplified acquisition threshold, but not 

exceeding $5,500,000 ($11 million for 

acquisitions as described in 13.500(e)). 

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 Regulatory Flexibility Act does 

not apply to this rule. This final rule 

does not constitute a significant FAR 

revision within the meaning of FAR 

1.501 and Pub. L. 98–577, and 

publication for public comments is not 

required. However, the Councils will 

consider comments from small entities 

concerning the affected FAR Part 13 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 2005–27, FAR case 2008– 

002), in all correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the 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 Part 13 

Government procurement. 

Dated: September 9, 2008. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 13 as set forth 

below: 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 1. The authority citation for 48 CFR 

part 13 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). 

13.500 [Amended] 

■ 2. Amend section 13.500 by removing 

from paragraph (d) ‘‘January 1, 2008’’ 

and adding ‘‘January 1, 2010’’ in its 

place. 

[FR Doc. E8–21380 Filed 9–16–08; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 16 

[FAC 2005–27; FAR Case 2008–006; Item 

IX; Docket 2008–01, Sequence 5] 

RIN 9000–AL05 

Federal Acquisition Regulation; FAR 

Case 2008–006, Enhanced Competition 

for Task and Delivery Order 

Contracts—Section 843 of the Fiscal 

Year 2008 National Defense 

Authorization Act 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Interim rule with request for 

comments. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement the 

Fiscal Year 2008 National Defense 

Authorization Act, Section 843 

‘‘Enhanced Competition for Task and 

Delivery Order Contracts’’ (FY08 

NDAA). Section 843 of the FY08 NDAA 

stipulates several requirements 

regarding enhancing competition within 

Federal contracting. 

DATES: Effective Date: September 17, 

2008. 

Applicability date: FAR 16.503 and 

16.504, as amended by this rule, are 

applicable to single award task or 

delivery order contracts awarded on or 

after May 27, 2008. FAR 16.505, as 

amended by this rule, is applicable to 

orders awarded on or after May 27, 2008 

on existing contracts as well as new 

contracts. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before November 

17, 2008 to be considered in the 

formulation of a final rule. 


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Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 54009 

ADDRESSES: Submit comments 

identified by FAC 2005–27, FAR case 

2008–006, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–006’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2008– 

006. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2008–006’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4041, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–27, FAR case 

2008–006, 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. Please cite FAC 2005–27, FAR 

case 2008–006. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Fiscal Year 2008 National 

Defense Authorization Act (Pub. L. 110– 

181), Section 843 ‘‘Enhanced 

Competition for Task and Delivery 

Order Contracts’’ includes several 

requirements regarding enhancing 

competition within the Federal 

contracting framework. The provisions 

of Section 843 include: (1) Limitation on 

single award task and delivery order 

contracts greater than $100 million; (2) 

Enhanced competition for task and 

delivery orders in excess of $5 million; 

and (3) Protest on orders on the grounds 

that the order increases the scope, 

period, maximum value of the contract 

under which the order is issued; or 

valued in excess of $10 million. 

The FAR changes are applicable to 

Indefinite-Delivery Requirements, and 

Indefinite-Quantity, type contracts 

where issuance of a task or delivery 

order is placed pursuant to FAR Subpart 

16.5. The purpose of this statute is to 

improve opportunities for competition 

through fair opportunity, transparency 

and accountability in contracting. 

1. Limitation on single award task or 

delivery order contracts greater than 

$100 million. Section 843 states that no 

task or delivery order contract in an 

amount estimated to exceed $100 

million (including all options) may be 

awarded to a single source unless the 

head of the agency determines in 

writing that— 

a. The task or delivery orders 

expected under the contract are so 

integrally related that only a single 

source can reasonably perform the work; 

b. The contract provides only for firmfixed price task or delivery orders; 

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 contract to a single source 

due to exceptional circumstances. 

The agency head must also notify 

Congress within 30 days after making 

the determination in the public interest. 

The objective of this provision is to 

place greater emphasis on awarding 

multiple award contracts and enhancing 

the fair opportunity provisions within 

FAR Subpart 16.5. Competition of 

orders leads to improved contractor 

performance, stimulation of 

technological solutions, and reduction 

of costs over time. The tenets of this 

provision strike at the core of enhancing 

competition and ensuring competition 

continues to exist even after award of 

the initial contract vehicles. 

Notwithstanding the limitation on 

single awards, there are occasions when 

a single award is necessary. For these 

occasions, Section 843 authorizes 

exceptions for awarding single award 

task or delivery order contracts that 

exceed $100 million. 

2. Enhanced competition for orders in 

excess of $5 million. This Section 843 

requirement emphasizes the importance 

of following certain specified 

procedures in the competitive 

placement of task or delivery orders 

with an expected value in excess of $5 

million (including options) placed 

against multiple award contracts. All 

awardees are to be given a fair 

opportunity to be considered for each 

order, at a minimum, a notice of the 

order with a clear statement of 

requirements, a reasonable response 

period, disclosure of the significant 

evaluation factors and subfactors, and 

where award is made on a best value 

basis, a statement documenting the basis 

for award and the relative importance of 

quality and price or cost factors. Section 

843 also provides an opportunity for a 

vendor to request a debriefing on orders 

valued over $5 million. The goal is to 

improve the transparency and 

accountability of agency award 

decisions. The new requirements apply 

to orders on existing contracts, as well 

as on new contracts. 

3. Protest of orders greater than $10 

million. This Section 843 requirement 

provides a mechanism to protest task or 

delivery orders valued in excess of $10 

million (including options) under 

multiple award contracts and states that 

the Comptroller General shall have 

exclusive jurisdiction over such 

protests. In particular, protests are 

authorized on the grounds that— 

(a) The order increases the scope, 

period, or maximum value of the 

contract under which the order is 

issued; or 

(b) As a matter of right for orders 

valued in excess of $10 million. This 

provision provides for greater 

accountability, oversight and discipline 

within the Federal acquisition 

framework, when coupled with the 

requirement of post award debriefings. 

The existing requirement to protest 

orders under section 16.505(a)(9) and 

the newly added requirement for orders 

greater than $10 million expire May 27, 

2011, unless extended by a new statute. 

The protest authority applies to orders 

on existing contracts, as well as on new 

contracts. 

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 rule does not revise or 

change existing regulations pertaining to 

small business concerns seeking 

Government contracts. Therefore, an 

Initial Regulatory Flexibility Analysis 

has not been performed. The Councils 

will consider comments from small 

entities concerning the affected FAR 

Part 16 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 2005–27, FAR 

case 2008–006), in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the changes to the 

FAR do not impose information 

collection requirements that require the 

approval of the Office of Management 


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54010 Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations 

and Budget under 44 U.S.C. 3501, et 

seq. 

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 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because provisions 

of the Fiscal Year 2008 National Defense 

Authorization Act Section 843 go into 

effect on May 27, 2008. The Councils 

believe that the interim rule in the FAR 

will provide the contracting officer the 

relevant regulatory guidance needed 

when addressing requirements outlined 

in this notice. The rule will also benefit 

industry in regards to the requirements 

for strengthening competition among 

orders, and the ability to protest orders. 

However, pursuant to Pub. L. 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 16 

Government procurement. 

Dated: September 9, 2008. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 16 as set forth 

below: 

PART 16—TYPES OF CONTRACTS 

■ 1. The authority citation for 48 CFR 

part 16 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). 

■ 2. Amend section 16.503 by revising 

paragraph (b) to read as follows: 

16.503 Requirements contracts. 

* * * * * 

(b) Application. (1) 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. 

(2) No requirements contract in an 

amount estimated to exceed $100 

million (including all options) may be 

awarded to a single source unless a 

determination is executed in accordance 

with 16.504(c)(1)(ii)(D). 

* * * * * 

■ 3. Amend section 16.504 by removing 

from paragraph (a)(4)(v) ‘‘16.505(b)(5)’’ 

and adding ‘‘16.505(b)(6)’’ in its place; 

and adding paragraph (c)(1)(ii)(D) to 

read as follows: 

16.504 Indefinite-quantity contracts. 

* * * * * 

(c) * * * 

(1) * * * 

(ii) * * * 

(D)(1) No task or delivery order 

contract in an amount estimated to 

exceed $100 million (including all 

options) may be awarded to a single 

source unless the head of the agency 

determines in writing that— 

(i) The task or delivery orders 

expected under the contract are so 

integrally related that only a single 

source can reasonably perform the work; 

(ii) The contract provides only for 

firm-fixed price (see 16.202) task or 

delivery orders for— 

(A) Products for which unit prices are 

established in the contract; or 

(B) Services for which prices are 

established in the contract for the 

specific tasks to be performed; 

(iii) Only one source is qualified and 

capable of performing the work at a 

reasonable price to the Government; or 

(iv) It is necessary in the public 

interest to award the contract to a single 

source due to exceptional 

circumstances. 

(2) The head of the agency must notify 

Congress within 30 days after any 

determination under paragraph 

(c)(1)(ii)(D)(1)(iv) of this section. 

(3) The requirement for a 

determination for a single award 

contract greater than $100 million 

applies in addition to the requirements 

of Subpart 6.3. 

* * * * * 

■ 4. Amend section 16.505 by— 

■ a. Revising paragraph (a)(9); 

■ b. Adding to the end of the fourth 

sentence before the period of paragraph 

(b)(1)(ii) ‘‘and the order does not exceed 

$5 million’’; 

■ c. Redesignating paragraph (b)(1)(iii) 

as (b)(1)(iv); and adding a new 

paragraph (b)(1)(iii); and 

■ d. Redesignating paragraphs (b)(4) and 

(b)(5) as paragraphs (b)(5) and (b)(6); 

and adding a new paragraph (b)(4). 

■ The revised text reads as follows: 

16.505 Ordering. 

(a) * * * 

(9)(i) No protest under Subpart 33.1 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) A protest on the grounds that the 

order increases the scope, period, or 

maximum value of the contract; or 

(B) A protest of an order valued in 

excess of $10 million. Protests of orders 

in excess of $10 million may only be 

filed with the Government 

Accountability Office, in accordance 

with the procedures at 33.104. 

(ii) The authority to protest the 

placement of an order under this 

subpart expires on May 27, 2011. (10 

U.S.C. 2304a(d) and 2304c(d), and 41 

U.S.C. 253h(d) and 253j(d)). 

(b) * * * 

(1) * * * 

(iii) Orders exceeding $5 million. For 

task or delivery orders in excess of $5 

million, the requirement to provide all 

awardees a fair opportunity to be 

considered for each order shall include, 

at a minimum— 

(A) A notice of the task or delivery 

order that includes a clear statement of 

the agency’s requirements; 

(B) A reasonable response period; 

(C) Disclosure of the significant 

factors and subfactors, including cost or 

price, that the agency expects to 

consider in evaluating proposals, and 

their relative importance; 

(D) Where award is made on a best 

value basis, a written statement 

documenting the basis for award and 

the relative importance of quality and 

price or cost factors; and 

(E) An opportunity for a postaward 

debriefing in accordance with paragraph 

(b)(4) of this section. 

* * * * * 

(4) Postaward Notices and Debriefing 

of Awardees for Orders Exceeding $5 

million. The contracting officer shall 

notify unsuccessful awardees when the 

total price of a task or delivery order 

exceeds $5 million. 

(i) The procedures at 15.503(b)(1) 

shall be followed when providing 

postaward notification to unsuccessful 

awardees. 

(ii) The procedures at 15.506 shall be 

followed when providing postaward 

debriefing to unsuccessful awardees. 

(iii) A summary of the debriefing shall 

be included in the task or delivery order 

file. 

* * * * * 

[FR Doc. E8–21379 Filed 9–16–08; 8:45 am] 

BILLING CODE 6820–EP–S 


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