[Federal Register Volume 85, Number 81 (Monday, April 27, 2020)]
[Proposed Rules]
[Pages 23299-23302]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08005]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5 and 7
[FAR Case 2019-003; Docket No. FAR-2019-0029, Sequence No. 1]
RIN 9000-AN86
Federal Acquisition Regulation: Consolidation and Substantial
Bundling
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement a section of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2016, which
requires providing public notices of determinations for substantial
bundling and consolidation of contract requirements.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat Division at one of the addresses shown below on
or before June 26, 2020 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2019-003 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by
[[Page 23300]]
entering ``FAR Case 2019-003''. Select the link ``Comment Now'' that
corresponds with FAR Case 2019-003. Follow the instructions provided on
the screen. Please include your name, company name (if any), and ``FAR
Case 2019-003'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd
Floor, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2019-
003 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. To
confirm receipt of your comment(s), please check www.regulations.gov,
approximately two-to-three days after submission to verify posting
(except allow 30 days for posting of comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Mr. Kevin Funk, Procurement Analyst,
at 202-357-5805 or via email at [email protected] for clarification of
content. For information pertaining to status or publication schedules,
contact the Regulatory Secretariat Division at 202-501-4755. Please
cite ``FAR Case 2019-003''.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA are proposing to amend the FAR to implement
section 863 of the NDAA for FY 2016 (Pub. L. 114-92, codified at 15
U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and SBA's implementing
regulations. Section 863 requires public notification of an agency's
determination to substantially bundle or consolidate contract
requirements.
Specifically, publication of a notice is required when the head of
a contracting agency determines that an acquisition plan for a
procurement involves substantial bundling of contract requirements. The
head of the contracting agency must publish a notice on a public
website that such determination has been made not later than 7 days
after making the determination. Any solicitation for a procurement
related to the acquisition plan may not be published earlier than 7
days after such notice is published. A justification for the
determination must be published with the solicitation. The
justification must address the specific benefits anticipated, any
alternative approaches, impediments to participation by small business
concerns as prime contractors, and actions designed to maximize
participation of small business concerns as subcontractors. See 15
U.S.C. 644(e)(3)(A) through (C) for a list of the requirements.
Section 863 also requires publication of a notice when the senior
procurement executive (SPE) or chief acquisition officer (CAO) makes a
determination that an acquisition strategy involving consolidation of
contract requirements is necessary and justified under 15 U.S.C.
657q(c)(2)(A). The SPE or CAO must publish a notice on a public website
that such determination has been made not later than 7 days after
making the determination. Any solicitation for a procurement related to
the acquisition strategy may not be published earlier than 7 days after
such notice is published. A justification for the determination must be
published with the solicitation. The justification must include the
information in 15 U.S.C. 657q(c)(1)(A) through (E).
SBA published a rule to implement section 863 on November 29, 2019,
at 84 FR 65647. SBA's implementation is very similar to the statutory
language.
II. Discussion and Analysis
The proposed changes to the FAR are summarized in the following
paragraphs.
A. Notification of Substantial Bundling
At FAR 7.107-5, Notifications, a requirement is added for
publication of a notification of substantial bundling on the
Governmentwide point of entry (GPE). Any solicitation for a procurement
may not be published earlier than 7 days after a notice is published
concerning a determination that the procurement involves substantial
bundling of contract requirements. The head of the agency must also
publish in the GPE the rationale for substantial bundling with the
publication of the solicitation. The rationale must address the
information required at 7.107-4(b), such as the specific benefits
anticipated, any alternative approaches, impediments to participation
by small business concerns as prime contractors, and actions designed
to maximize participation of small business concerns as subcontractors.
A reference to the notification requirement at FAR 7.107-5 is added to
FAR 5.205, Special situations.
B. Notification of Consolidation
At 7.107-5, Notifications, a requirement is added for the SPE or
CAO to publish a notice on the GPE that a determination has been made
that a consolidation of contract requirements is necessary and
justified. The SPE or CAO must also publish the determination that
consolidation is necessary and justified with the publication of the
solicitation. A reference to the notification requirement at FAR 7.107-
5 is added to FAR 5.205, Special situations.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold and for Commercial Items, Including Commercially Available
Off-the-Shelf Items
This rule proposes to implement a statutory requirement for Federal
agencies to provide notifications to the public on consolidation and
substantial bundling of contract requirements. No solicitation
provisions or contract clauses are being created or revised in this
proposed rule.
IV. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is not a significant regulatory action and, therefore, was not
subject to review under section 6(b) of E.O. 12866, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
V. Executive Order 13771
This proposed rule is not expected to be subject to E.O. 13771,
Reducing Regulation and controlling Regulatory Costs, because this rule
is not a significant regulatory action under E.O. 12866.
VI. Regulatory Flexibility Act
The change 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. The Initial Regulatory
Flexibility Analysis (IRFA) has been performed and is summarized as
follows:
DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement section 863 of the
National Defense Authorization Act for 2016 (Pub. L. 114-92,
codified at 15 U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and the
[[Page 23301]]
Small Business Administration (SBA) implementing regulations.
Section 863 requires that, if the head of a contracting agency
determines that an acquisition plan involves a substantial bundling
of contract requirements, the head of the agency shall publish a
notice of such determination on a public website within 7 days of
making such determination. Additionally, section 863 requires, upon
determining that a consolidation of contract requirements is
necessary and justified, the senior procurement executive (SPE) or
chief acquisition officer (CAO) shall publish a notice on a public
website that such determination has been made and that an agency may
not issue the solicitation any earlier than 7 days after publication
of such notice. The SPE or CAO must also publish the justification
along with the solicitation.
The objective of this rule is to implement section 863 of the
NDAA for FY 2016 and SBA's implementing regulations. The legal basis
for the rule is section 863 of the NDAA for FY 2016.
This rule may have a positive economic impact on any small
entity that is interested in participating in Federal procurement.
By posting justifications and notices of upcoming procurements which
are planned to be substantially bundled or consolidated, small
business concerns are made aware of potential subcontracting
opportunities and possibilities for participating in joint ventures
or small business teaming arrangements, which will help small
businesses increase their competitiveness. The System for Award
Management (SAM) shows 315,655 entities which are small business
concerns under at least one North American Industry Classification
System code.
This proposed rule does not include any new reporting,
recordkeeping, or other compliance requirements for small entities.
This proposed rule does not duplicate, overlap, or conflict with
any other Federal rules.
There are no known significant alternative approaches that would
accomplish the stated objectives of the applicable statute.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the SBA. A copy of the IRFA
may be obtained from the Regulatory Secretariat Division. DoD, GSA, and
NASA invite comments from small business concerns and other interested
parties on the expected impact of this rule on small entities.
DoD, GSA, and NASA 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
comments separately and should cite 5 U.S.C. 610 (FAR case 2019-003) in
correspondence.
VII. Paperwork Reduction Act
This rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Parts 5 and 7
Government procurement.
William F. Clark,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA are proposing to amend 48 CFR part(s)
5 and 7, as set forth below:
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1. The authority citation for 48 CFR part(s) 5 and 7 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 5--PUBLICIZING CONTRACT ACTIONS
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2. Amend section 5.205 by revising paragraph (g) to read as follows:
5.205 Special Situations.
* * * * *
(g) Notifications to the public regarding consolidation, bundling,
or substantial bundling. (1) For the requirement to publish a
notification of consolidation or substantial bundling of contract
requirements, see 7.107-5(c) and (d).
(2) The agency is encouraged to provide notification of the
rationale for any bundled requirement to the GPE before issuing the
solicitation of any bundled requirement (see 7.107-5(b)).
PART 7--ACQUISITION PLANNING
7.105 [Amended]
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3. Amend section 7.105 by removing from paragraph (b)(16) ``GPE'' and
adding ``Governmentwide point of entry (GPE)'' in its place.
7.107-1 [Amended]
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4. Amend section 7.107-1 by removing from paragraph (a) ``7.107-3 and
7.107-4'' and adding ``7.107-3, 7.107-4, and 7.107-5'' in its place.
7.107-2 [Amended]
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5. Amend section 7.107-2 by:
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a. In paragraph (a) introductory text removing the words ``procurement
executive'' and ``acquisition officer'' and adding in their place
``procurement executive (SPE)'' and ``acquisition officer (CAO)'',
respectively;
0
b. In from paragraph (b) removing the words ``senior procurement
executive or chief acquisition officer'' and ``subsection'' and adding
in their place ``SPE or CAO'' and ``section'', respectively;
0
c. In from paragraph (d)(3) removing the words ``senior procurement
executive or chief acquisition officer'' and adding in their place
``SPE or CAO'';
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d. In paragraph (e)(1) introductory text removing the word
``subsection'' wherever it appears and adding in its place ``section'';
0
e. In paragraph (e)(1)(i) removing the word ``subsection'' and adding
in its place the word ``section''; and
0
f. In paragraph (e)(2)(i) removing the words ``senior procurement
executive'' and adding in their place ``SPE''.
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6. Amend section 7.107-5 by:
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a. Revising paragraph (b);
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b. Redesignating paragraphs (c) and (d) as paragraphs (e) and (g), and
adding new paragraphs (c), (d), and (f); and
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c. In newly redesignated paragraph (g) removing the words ``Public
notification'' and adding in their place ``Notification to public''.
The revision and additions read as follows:
7.107-5 Notifications.
* * * * *
(b) Notification to public of rationale for bundled requirement.
The agency is encouraged to provide notification of the rationale for
any bundled requirement to the GPE, before issuance of the solicitation
(see 5.201).
(c) Notification to public of consolidation of contract
requirements. The SPE or CAO shall publish in the GPE--
(1) A notice that the agency has determined a consolidation of
contract requirements is necessary and justified (see 7.107-2) no later
than 7 days after making the determination; the solicitation may not be
publicized prior to 7 days after publication of the notice of the
determination; and
(2) The determination that consolidation is necessary and justified
with the publication of the solicitation. See 7.107-2 for the required
content of the determination.
(d) Notification to public of substantial bundling of contract
requirements. The head of the agency shall publish in the GPE--
(1) A notice that the agency has determined that a procurement
involves substantial bundling (see 7.107-4) no later than 7 days after
such determination has been made; the solicitation may not be
publicized prior to 7 days after publication of the notice of the
determination; and
(2) The rationale for substantial bundling with the publication of
the solicitation. The rationale is the
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information required for inclusion in the acquisition strategy at
7.107-4(b).
* * * * *
(f) Annual notification to public of rationale for bundled
requirements. The agency shall publish on its website a list and
rationale for any bundled requirement for which the agency solicited
offers or issued an award. The notification shall be made annually
within 30 days of the agency's data certification regarding the
validity and verification of data entered in the Federal Procurement
Data System to the Office of Federal Procurement Policy (see 4.604).
* * * * *
[FR Doc. 2020-08005 Filed 4-24-20; 8:45 am]
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