[Federal Register Volume 76, Number 51 (Wednesday, March 16, 2011)]
[Rules and Regulations]
[Pages 14548-14559]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-5553]
[[Page 14548]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5, 8, 16, 18, and 38
[FAC 2005-50; FAR Case 2007-012; Item II; Docket 2011-0081, Sequence
01]
RIN 9000-AL93
Federal Acquisition Regulation; Requirements for Acquisitions
Pursuant to Multiple-Award Contracts
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule.
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SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement section 863 of the
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009.
Section 863, entitled ``Requirements for Purchase of Property and
Services Pursuant to Multiple-Award Contracts,'' mandates enhanced
competition for orders placed under multiple-award contracts, including
GSA's Federal Supply Schedules (FSS). If an individual order over the
simplified acquisition threshold does not follow the section 863
competitive procedures, section 863 requires that a notice of, and the
determination to waive competition for, the order be published in
FedBizOpps within 14 days after award. These FAR changes support the
Administration's commitment to strengthened competition and increased
transparency.
DATES: Effective Date: May 16, 2011.
Applicability Date: (1) The changes in this rule apply to
solicitations issued and contracts awarded on or after May 16, 2011
(see FAR 1.108(d)(1)). (2) The changes also apply to orders issued on
or after the effective date of this regulation, without regard to
whether the underlying contracts were awarded before May 16, 2011. (3)
The changes apply to Blanket Purchase Agreements (BPAs) established
under FSS contracts on or after May 16, 2011. (4) The ordering
procedures for BPAs in FAR 8.405-3(c) are mandatory for BPAs
established under FSS contracts on or after May 16, 2011 and
discretionary for BPAs established under FSS contracts prior to the
effective date.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before May 16, 2011 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-50, FAR Case 2007-
012, by any of the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2007-012'' under the heading ``Enter Keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``FAR Case 2007-012.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``FAR Case 2007-012'' on your attached
document.
Fax: (202) 501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE., 7th
Floor, Washington, DC 20417.
Instructions: Please submit comments only and cite FAC 2005-50, FAR
Case 2007-012, 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. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-50, FAR
Case 2007-012.
SUPPLEMENTARY INFORMATION:
I. Background
A. Overview
This interim rule amends the FAR to implement section 863 of the
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009
(Pub. L. 110-417) enacted on October 14, 2008. Section 863 mandated the
development and publication of regulations in the FAR to enhance
competition for the award of orders placed under multiple-award
contracts. Section 863 specified enhancements that include--
Strengthening competition rules for placing orders under
FSS and other multiple-award contracts to ensure both the provision of
fair notice to contract holders and the opportunity for contract
holders to respond (similar to the procedures implemented for section
803 of the National Defense Authorization Act for Fiscal Year 2002
(Pub. L. 107-107)); and
Providing notice in FedBizOpps of certain orders placed
under multiple-award contracts, including FSS.
The legislation builds on recommendations offered by the
Acquisition Advisory Panel, which was established by section 1423 of
the Services Acquisition Reform Act of 2003, (Pub. L. 108-136). The
final report of the Acquisition Advisory Panel, issued in January 2007,
can be accessed at http://acquisition.gov/comp/aap/index.html.
For each individual purchase of property or services in excess of
the simplified acquisition threshold (SAT) that is made under a
multiple-award contract, section 863 requires the provision of fair
notice of intent to make a purchase (including a description of the
work to be performed and the basis on which the selection will be made)
to all contractors offering such property or services under the
multiple-award contract. In addition, the statute requires that all
contractors responding to the notice be afforded a fair opportunity to
make an offer and have that offer fairly considered by the purchasing
official. A notice may be provided to fewer than all contractors
offering such property or services under a multiple-award contract if
the notice is provided to as many contractors as practicable. When
notice is provided to fewer than all the contractors, a purchase cannot
be made unless--
Offers were received from at least three qualified
contractors; or
A contracting officer determines in writing that no
additional qualified contractors were able to be identified despite
reasonable efforts to do so.
These requirements may be waived on the basis of a justification,
including a written determination identifying the statutory basis for
an exception to fair opportunity, that is prepared and approved at the
levels specified in the FAR.
In considering regulatory changes to strengthen the use of
competition in task- and delivery-order contracts, the Defense
Acquisition Regulations Council and Civilian Agency Acquisition Council
(Councils) sought to develop amendments that take increased and more
effective advantage of competition, consistent with the general
competition principles addressed in the President's March 4, 2009,
Memorandum on Government Contracting (available at http://www.whitehouse.gov/the_press_office/Memorandum-for-the-Heads-of-Executive-Departments-and-Agencies-Subject-Government), while still
preserving the efficiencies of these contract vehicles. For this
reason, the
[[Page 14549]]
rule addresses several issues that are not expressly addressed in
section 863, such as competition for the establishment and placement of
orders under FSS BPAs. The changes, however, are not applicable to BPAs
awarded pursuant to FAR part 13 or to orders awarded under FAR
procedures other than those in FAR subparts 8.4 and 16.5.
In particular, this interim rule--
Revises the ``fair opportunity'' competition requirements
in FAR 16.505(b) (applicable to multiple-award task- and delivery-order
contracts, other than FSS contracts) to require that, for orders
exceeding the SAT, agencies (i) provide fair notice of intent to make
the purchase to all contract holders, (ii) afford all contract holders
a fair opportunity to submit offers and have those offers fairly
considered, and (iii) justify an exception to fair opportunity with
appropriate documentation and approval;
Amends the procedures for ordering supplies and services
under FSS contracts at FAR 8.405-1 and 8.405-2, when the order is above
the SAT, to require that ordering activities--
--Receive at least three quotes, as a general matter, that can fulfill
the requirement and fairly consider all quotes received; and
--Document the file to explain efforts made to obtain quotes from at
least three FSS contractors that can fulfill the requirements if fewer
than three quotes were received and e-Buy, an electronic FSS
requirements posting tool, was not used;
Establishes new competition procedures at FAR 8.405-3 for
creating BPAs under FSS contracts and placing orders under the BPAs
that--
--Create a preference for multiple-award BPAs, rather than single-award
BPAs, generally modeled after the preference for multiple-award task-
and delivery-order contracts in FAR 16.505;
--Allow single-award BPAs if (i) the agency considered multiple awards
and the decision to make a single award is explained and documented in
the acquisition plan and contract file, (ii) the estimated value of the
BPA does not exceed $100 million (including any options), with limited
exception, and (iii) the ordering activity prepares a written
determination before exercising an option and secures the approval of
its competition advocate;
--Establish competition requirements for placing orders under multiple-
award BPAs that require the ordering activity to (i) provide a Request
for Quotation (RFQ) to all BPA holders offering the required supplies
or services under the BPA for orders over the SAT that includes a
description of the supplies to be delivered or the services to be
performed and the basis upon which the selection will be made, (ii)
afford all BPA holders an opportunity to submit a quote, (iii) fairly
consider all responses received, and (iv) make award in accordance with
the selection procedures; and
--Restrict the circumstances when a BPA may be established based on a
limited-source justification (see also FAR 8.405-6(a)(1)(i));
Amends the contract award synopsis provisions at FAR 5.301
(with conforming changes at FAR 5.406, 8.405-6(a)(2), and
16.505(b)(2)(ii)(D)) to require publication and posting of actions
supported by exceptions to fair opportunity at FAR 16.505(b)(2) for
non-FSS task- and delivery-order contracts and limited-sources
justifications at FAR 8.405-6 for FSS contracts, except when disclosure
would compromise national security or create other security risks;
Clarifies that ordering activities may seek a price
reduction under FSS contracts at any time and that they shall seek a
price reduction when placing an order or establishing a BPA that
exceeds the SAT (see FAR 8.405-4); and
Adds language explaining that the protest procedures found
at FAR subpart 33.1 are applicable to the issuance of an order or the
establishment of a BPA against an FSS contract.
Additional background on changes to strengthen competition rules
under GSA's FSS is provided in the following section B.
B. Strengthening Competition Rules Under FSS
1. FAR 8.405-1, Ordering procedures for supplies, and services not
requiring a statement of work.
Current language at FAR 8.405-1 provides competition guidance and
ordering procedures for three categories of purchases:
Orders at or below the micro-purchase threshold.
Orders exceeding the micro-purchase threshold but not
exceeding the maximum-order threshold identified in the schedule
contract.
Orders exceeding the maximum-order threshold.
This interim rule retains three categories of purchases but no
longer employs the maximum-order threshold limitation as a point of
reference to define the boundaries of the categories. Instead, the
second and third categories are bounded by the SAT. This change is
required to ensure rules comply with the section 863 competition
requirements. With respect to the competition requirements, existing
requirements are retained in some instances and changed in others, as
follows:
a. Orders at or below the micro-purchase threshold. Because the
competition standards under section 863 begin at the SAT, the Councils
agreed that no changes were needed to the procedures for orders at or
below the micro-purchase threshold, i.e., orders may be placed with any
FSS contractor that can meet the agency's needs.
b. Orders exceeding the micro-purchase threshold but not exceeding
the SAT. In this category, an ordering activity may place an order with
the FSS contractor that represents the best value after surveying at
least three FSS contractors through GSA Advantage! by reviewing the
catalogs or price lists of at least three FSS contractors, or by
requesting quotations from at least three schedule contractors.
c. Orders exceeding the SAT. This interim rule changes competition
requirements in this category to conform to the section 863 competition
standards. The ordering activity must provide the RFQ to as many FSS
contractors as practicable, consistent with market research appropriate
to the circumstances, to reasonably ensure that quotes will be received
from at least three contractors that can fulfill the requirement and
further ensure that all quotes received are fairly considered and award
is made in accordance with the basis for selection in the RFQ. The
terminology set forth in the statute is tailored to conform with the
process under which the FSS Program operates. For example, section 863
uses language such as ``each individual purchase of property or
services,'' whereas this rule uses the term ``orders.'' The ordering
procedures at FAR 8.405-1(d) for orders exceeding the maximum-order
threshold have been deleted because the section 863 competition
standard supersedes those procedures. In addition, when an order
exceeds the SAT, an ordering activity is now required to document the
best-value determination with evidence of compliance with the ordering
procedures. For example, there should be documentation to show whether
at least three quotes were received. If fewer than three quotes were
received, and e-Buy was not used (see discussion on e-Buy at paragraph
4. of this section), then the contracting officer must clearly explain,
in the file documentation, the efforts made to obtain quotes from at
[[Page 14550]]
least three FSS contractors that can fulfill the requirement.
2. FAR 8.405-2, Ordering procedures for services requiring a
statement of work.
a. Orders at or below the micro-purchase threshold. The rules for
orders at or below the micro-purchase threshold remain unchanged.
b. Orders exceeding the micro-purchase threshold but not exceeding
the SAT. Consistent with current FAR requirements for orders of this
size, the ordering activity must provide the RFQ (including the
statement of work and evaluation criteria) to at least three FSS
contractors that offer services that will meet the agency's needs.
Otherwise, the ordering activity contracting officer must document the
circumstances for restricting consideration of fewer than three
schedule contractors that can fulfill the requirement, based on one of
the reasons at FAR 8.405-6(a) and select the corresponding reason in
FPDS.
c. Orders exceeding the SAT. This interim rule adds the new
competition standards in accordance with section 863 for orders over
the SAT that do not require statements of work. Here, the ordering
activity must include the statement of work and evaluation criteria
(e.g., experience and past performance) when providing the RFQ to FSS
contractors that offer services that will meet the agency's needs or
posting the RFQ on e-Buy.
3. FAR 8.405-3, Blanket Purchase Agreements (BPAs). This interim
rule consolidates FSS BPA procedures into one subsection, FAR 8.405-3,
and makes a number of changes to improve competition in the
establishment of FSS BPAs and the placement of orders under such BPAs.
(The Councils note that the rule addresses only FSS BPAs. This interim
rule is not applicable to BPAs established under FAR part 13.) Although
section 863 does not specifically address the treatment of BPAs
established under FSS contracts, the Councils, after careful
deliberation, decided to apply the basic competition procedures of
section 863 to the establishment of BPAs under FSS contracts.
Accordingly, if the anticipated value of the BPA is over the SAT, the
ordering activity either must seek quotes from as many schedule
contractors as practicable to reasonably ensure that quotes will be
received from at least three contractors that can fulfill the
requirements or post the RFQ on e-Buy, unless these requirements are
waived on the basis of a limited-sources justification that is prepared
and approved in accordance with FAR 8.405-6.
a. Single-award BPAs. To encourage and facilitate competition when
placing orders under BPAs, this interim rule establishes a preference
for multiple-award BPAs rather than single-award BPAs. The ordering
activity must consider several factors, including the benefits of on-
going competition, when deciding how many BPAs are appropriate and
document the decision in the acquisition plan or BPA file. A single-
award BPA may be established only under certain circumstances. To
further encourage the use of multiple-award BPAs, the Councils added a
limitation that no single-award BPA with an estimated value exceeding
$100 million (including any options) may be awarded unless, under
certain circumstances, the head of the agency makes a determination in
writing, and the Councils limited the duration of single-award BPAs to
one year. While a single-award BPA may include up to four one-year
options, the exercise of each option will now require a written
determination approved by the ordering activity competition advocate.
This determination, which is required for all BPAs at least once a
year, must address whether (1) the FSS contract upon which the BPA was
established is still in effect; (2) the BPA still represents the best
value; and (3) the estimated quantities/amounts have been exceeded and
additional price reductions can be obtained.
b. Orders under multiple-award BPAs. This interim rule structures
the ordering procedures for multiple-award BPAs according to dollar
thresholds, i.e., orders under the micro-purchase threshold, orders
over the micro-purchase threshold but under the SAT, and orders over
the SAT. Orders at or below the micro-purchase threshold may be placed
with any BPA holder that can meet the agency needs.
When an order is over the micro-purchase threshold but less than
the SAT, the ordering activity must provide each multiple-award BPA
holder a fair opportunity to be considered unless one of the exceptions
at FAR 8.405-6(a)(1)(i) applies. The ordering activity contracting
officer must document the circumstances when limiting consideration to
less than all the multiple-award BPA holders.
For an order exceeding the SAT placed under a multiple-award BPA,
the ordering activity shall provide an RFQ to all BPA holders offering
the required supplies or services under the multiple-award BPA. The RFQ
must include a description of the supplies to be delivered or the
services to be performed and the basis upon which the selection will be
made. The ordering activity shall: (1) Afford all BPA holders an
opportunity to submit a quote; (2) fairly consider all responses
received; and (3) make award in accordance with the selection
procedures. The ordering activity must place orders using these
procedures unless the requirement is waived on the basis of a
justification that is prepared and approved in accordance with FAR
8.405-6.
The Councils note that the new competition standard for multiple-
award BPAs is not applicable to orders placed under BPAs that were
established on or before the effective date of this interim rule.
4. E-Buy. The Councils considered various methods for providing
fair notice to all FSS contractors. FAR 8.402 currently requires the
use of e-Buy, an electronic FSS requirements-posting tool, only when an
order contains brand-name specifications. The Councils agreed that the
use of e-Buy provides contracting officers with an efficient method of
posting requirements to reach the widest audience of offerors that can
fulfill the requirements, as well as a swift and easy means for
contractors to submit responsive and responsible quotes. Therefore,
this interim rule amends FAR 8.402(d) to identify e-Buy as one medium
for providing fair notice while also providing offerors with a
voluntary quoting system. The Councils agreed that posting the RFQ on
e-Buy allows all FSS holders with the referenced FSS Special Item
Number (SIN) to view the posting, thus satisfying the requirements for
fair notice when placing an order or establishing a BPA under FAR
subpart 8.4.
As explained previously in this section, the procedures for
ordering supplies and services under FSS contracts (FAR 8.405-1 and
8.405-2) when the order is above the SAT, have been revised to require
the receipt of at least three quotes that can fulfill the requirement
and also require that all quotes received must be fairly considered.
However, if e-Buy is used and fewer than three quotes are received,
section 863 competition requirements are considered to have been met
and the contracting officer may proceed with award. If e-Buy is not
used and fewer than three quotes are received from schedule contractors
that can fulfill the requirements, the contracting officer must
document a determination that no additional contractors capable of
fulfilling the requirements could be identified despite reasonable
efforts to do so.
5. Other FSS ordering issues. This interim rule retains current FAR
[[Page 14551]]
limitations that restrict the use of brand-name specifications to
situations where a particular brand name, product, or feature is
essential to the Government's requirements and market research
indicates other companies' similar products, or products lacking the
particular feature, do not meet, or cannot be modified to meet, the
agency's needs. This interim rule also retains the list of factors to
be considered when determining best value, such as past performance,
special features required for effective program performance, delivery
terms, and environmental and energy efficiency considerations, but adds
a cross reference to FAR 8.405-4 to emphasize that ordering activities
should seek price reductions when considering price.
C. Strengthening Competition Requirements for Task and Delivery Orders
in FAR Subpart 16.5, Indefinite-Delivery Contracts
The changes made by this interim rule to FAR subpart 16.5 are fully
addressed in section I.1. Overview, of this Federal Register document.
II. Executive Order 12866
This is a significant regulatory action and, therefore, was 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.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this interim 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 this rule does not revise or change existing regulations
pertaining specifically to small business concerns seeking Government
contracts. DoD, GSA, and NASA believe the rule will benefit small
entities by encouraging and enhancing competition.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. 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 the rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-50, FAR Case
2007-012), in correspondence.
IV. Paperwork Reduction Act
The interim 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).
V. 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 the Duncan Hunter National Defense Authorization
Act for Fiscal Year 2009 (Pub. L. 110-417) was enacted on October 14,
2008. Section 863 required the FAR to be revised no later than one year
after enactment, or October 14, 2009. Absent implementation of this
interim rule, section 863 will not be implemented in the FAR and
agencies will not be compliant with this provision. However, pursuant
to 41 U.S.C. 1707 and FAR 1.501-3(b), DoD, GSA, and NASA will consider
public comments received in response to this interim rule in the
formation of the final rule.
List of Subjects in 48 CFR Parts 5, 8, 16, 18, and 38
Government procurement.
Dated: March 4, 2011.
Millisa Gary,
Acting Director, Office of Governmentwide Acquisition Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 8, 16, 18, and
38 as set forth below:
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1. The authority citation for 48 CFR parts 5, 8, 16, 18, and 38
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 5--PUBLICIZING CONTRACT ACTIONS
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2. Revise section 5.301 to read as follows:
5.301 General.
(a) Except for contract actions described in paragraph (b) of this
section and as provided in 5.003, contracting officers must synopsize
through the GPE the following:
(1) Contract awards exceeding $25,000 that are--
(i) Covered by the World Trade Organization Government Procurement
Agreement or a Free Trade Agreement (see subpart 25.4); or
(ii) Likely to result in the award of any subcontracts. However,
the dollar threshold is not a prohibition against publicizing an award
of a smaller amount when publicizing would be advantageous to industry
or to the Government.
(2) Certain contract actions greater than the simplified
acquisition threshold as follows--
(i) Federal Supply Schedule (FSS) orders or Blanket Purchase
Agreements supported by a limited-source justification (excluding brand
name) in accordance with 8.405-6; or
(ii) Task or delivery orders awarded without providing fair
opportunity in accordance with 16.505(b)(2).
(3) A notice is not required under this section if the notice would
disclose the executive agency's needs and the disclosure of such needs
would compromise the national security.
(b) A notice is not required under paragraph (a)(1) of this section
if--
(1) The award results from acceptance of an unsolicited research
proposal that demonstrates a unique and innovative research concept and
publication of any notice would disclose the originality of thought or
innovativeness of the proposed research or would disclose proprietary
information associated with the proposal;
(2) The award results from a proposal submitted under the Small
Business Innovation Development Act of 1982 (Pub. L. 97-219);
(3) The contract action is an order placed under subpart 16.5 or
8.4, except see paragraph (a)(2) of this section;
(4) The award is made for perishable subsistence supplies;
(5) The award is for utility services, other than
telecommunications services, and only one source is available;
(6) The contract action--
(i) Is for an amount not greater than the simplified acquisition
threshold;
(ii) Was made through a means where access to the notice of
proposed contract action was provided through the GPE; and
(iii) Permitted the public to respond to the solicitation
electronically; or
(7) The award is for the services of an expert to support the
Federal Government in any current or anticipated litigation or dispute
pursuant to the exception to full and open competition authorized at
6.302-3.
(c) With respect to acquisitions covered by the World Trade
Organization Government Procurement Agreement or a Free Trade
Agreement, contracting officers must submit synopses in sufficient time
to permit
[[Page 14552]]
their publication in the GPE not later than 60 days after award.
(d) Posting is required of the justifications for--
(1) Contracts awarded using other than full and open competition in
accordance with 6.305;
(2) FSS orders or Blanket Purchase Agreements with an estimated
value greater than the simplified acquisition threshold and supported
by a limited-sources justification (see 8.405-6(a)); or
(3) Task or delivery orders greater than the simplified acquisition
threshold and awarded without providing for fair opportunity in
accordance with 16.505(b)(2)(ii)(B) and (D).
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3. Revise section 5.406 to read as follows:
5.406 Public disclosure of justification documents for certain
contract actions.
(a) Justifications and approvals for other than full and open
competition must be posted in accordance with 6.305.
(b) Limited-source justifications (excluding brand name) for FSS
orders or blanket purchase agreements with an estimated value greater
than the simplified acquisition threshold must be posted in accordance
with 8.405-6(a)(2).
(c) Justifications for task or delivery orders greater than the
simplified acquisition threshold and awarded without providing for fair
opportunity must be posted in accordance with 16.505(b)(2)(ii)(D).
5.705 [Amended]
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4. Amend section 5.705 by removing from the introductory paragraph
``5.301(b)(3) through (8)'' and adding ``5.301(b)(2) through (7)'' in
its place.
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
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5. Amend section 8.402 by revising paragraph (d) to read as follows:
8.402 General.
* * * * *
(d)(1) e-Buy, GSA's electronic Request for Quotation (RFQ) system,
is a part of a suite of on-line tools which complement GSA Advantage!.
E-Buy allows ordering activities to post requirements, obtain quotes,
and issue orders electronically. Posting an RFQ on e-Buy--
(i) Is one medium for providing fair notice to all schedule
contractors offering such supplies and services as required by 8.405-1,
8.405-2, and 8.405-3; and
(ii) Is required when an order contains brand-name specifications
(see 8.405-6).
(2) Ordering activities may access e-Buy at http://www.ebuy.gsa.gov. For more information or assistance on either GSA
Advantage! or e-Buy, contact GSA at Internet e-mail address
[email protected].
* * * * *
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6. Amend section 8.404 by--
0
a. Revising the last sentence in paragraph (a);
0
b. Redesignating paragraph (e) as paragraph (g);
0
c. Adding new paragraphs (e) and (f); and
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d. Revising the newly redesignated paragraph (g).
The revised and added text reads as follows:
8.404 Use of Federal Supply Schedules.
(a) * * * Therefore, when establishing a BPA (as authorized by
13.303-2(c)(3)), or placing orders under Federal Supply Schedule
contracts using the procedures of 8.405, ordering activities shall not
seek competition outside of the Federal Supply Schedules or synopsize
the requirement; but see paragraph (g) of this section.
* * * * *
(e) The procedures under subpart 33.1 are applicable to the
issuance of an order or the establishment of a BPA against a schedule
contract.
(f) If the ordering activity issues an RFQ, the ordering activity
shall provide the RFQ to any schedule contractor that requests a copy
of it.
(g)(1) Ordering activities shall publicize contract actions funded
in whole or in part by the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5):
(i) Notices of proposed MAS orders (including orders issued under
BPAs) that are for ``informational purposes only'' exceeding $25,000
shall follow the procedures in 5.704 for posting orders.
(ii) Award notices for MAS orders (including orders issued under
BPAs) shall follow the procedures in 5.705.
(2) When an order is awarded or a Blanket Purchase Agreement is
established with an estimated value greater than the simplified
acquisition threshold and supported by a limited-source justification
at 8.405-6(a), the ordering activity contracting officer must--
(i) Publicize the action (see 5.301); and
(ii) Post the justification in accordance with 8.405-6(a)(2).
0
7. Amend section 8.405 by adding a sentence to the end of the
paragraph.
8.405 Ordering procedures for Federal Supply Schedules.
* * * For establishing BPAs and for orders under BPAs see 8.405-3.
0
8. Amend section 8.405-1 by--
0
a. Adding to the end of paragraph (a) ``For establishing BPAs and for
orders under BPAs see 8.405-3.''
0
b. Revising paragraphs (c) and (d);
0
c. Redesignating paragraph (e) as paragraph (g);
0
d. Adding new paragraphs (e) and (f); and
0
e. Revising newly redesignated paragraph (g).
The added and revised text reads as follows:
8.405-1 Ordering procedures for supplies, and services not requiring a
statement of work.
* * * * *
(c) Orders exceeding the micro-purchase threshold but not exceeding
the simplified acquisition threshold. Ordering activities shall place
orders with the schedule contractor that can provide the supply or
service that represents the best value. Before placing an order, an
ordering activity shall:
(1) Consider reasonably available information about the supply or
service offered under MAS contracts by surveying at least three
schedule contractors through the GSA Advantage! on-line shopping
service, by reviewing the catalogs or pricelists of at least three
schedule contractors, or by requesting quotations from at least three
schedule contractors (see 8.405-5); or
(2) Document the circumstances for restricting consideration to
fewer than three schedule contractors based on one of the reasons at
8.405-6(a).
(d) For proposed orders exceeding the simplified acquisition
threshold. (1) Each order shall be placed on a competitive basis in
accordance with (d)(2) and (3) of this section, unless this requirement
is waived on the basis of a justification that is prepared and approved
in accordance with 8.405-6.
(2) The ordering activity contracting officer shall provide an RFQ
that includes a description of the supplies to be delivered or the
services to be performed and the basis upon which the selection will be
made (see 8.405-1(f)).
(3) The ordering activity contracting officer shall--
(i) Post the RFQ on e-Buy to afford all schedule contractors
offering the required supplies or services under the appropriate
multiple award schedule(s) an opportunity to submit a quote; or
(ii) Provide the RFQ to as many schedule contractors as
practicable, consistent with market research appropriate to the
circumstances, to
[[Page 14553]]
reasonably ensure that quotes will be received from at least three
contractors that can fulfill the requirements. When fewer than three
quotes are received from schedule contractors that can fulfill the
requirement, the contracting officer shall prepare a written
determination explaining that no additional contractors capable of
fulfilling the requirement could be identified despite reasonable
efforts to do so. The determination must clearly explain efforts made
to obtain quotes from at least three schedule contractors.
(4) The ordering activity contracting officer shall ensure that all
quotes received are fairly considered and award is made in accordance
with the basis for selection in the RFQ.
(e) When an order contains brand-name specifications, the
contracting officer shall post the RFQ on e-Buy along with the
justification or documentation as required by 8.405-6.
(f) In addition to price (see 8.404(d) and 8.405-4), when
determining best value, the ordering activity may consider, among other
factors, the following:
(1) Past performance.
(2) Special features of the supply or service required for
effective program performance.
(3) Trade-in considerations.
(4) Probable life of the item selected as compared with that of a
comparable item.
(5) Warranty considerations.
(6) Maintenance availability.
(7) Environmental and energy efficiency considerations.
(8) Delivery terms.
(g) Minimum documentation. The ordering activity shall document--
(1) The schedule contracts considered, noting the contractor from
which the supply or service was purchased;
(2) A description of the supply or service purchased;
(3) The amount paid;
(4) When an order exceeds the simplified acquisition threshold,
evidence of compliance with the ordering procedures at 8.405-1(d); and
(5) The basis for the award decision.
0
9. Amend section 8.405-2 by--
0
a. Adding a sentence to the end of paragraph (a);
0
b. Removing from the first sentence in paragraph (b) ``include the
work'' and adding ``include a description of work'' in its place;
0
c. Revising the heading to paragraph (c)(2), and paragraphs (c)(2)(ii),
(c)(2)(iii) and (c)(3);
0
d. Revising the third sentence of paragraph (d);
0
e. Removing from the end of paragraph (e)(6) the word ``and'';
0
f. Removing from the end of paragraph (e)(7)(ii) ``order.'' and adding
``order; and'' in its place; and
0
g. Adding paragraph (e)(8).
The revised and added text reads as follows:
8.405-2 Ordering procedures for services requiring a statement of
work.
(a) * * * ``For establishing BPAs and for orders under BPAs see
8.405-3.''
* * * * *
(c) * * *
(2) For orders exceeding the micro-purchase threshold, but not
exceeding the simplified acquisition threshold.
* * * * *
(ii) The ordering activity shall provide the RFQ (including the
statement of work and evaluation criteria) to at least three schedule
contractors that offer services that will meet the agency's needs or
document the circumstances for restricting consideration to fewer than
three schedule contractors based on one of the reasons at 8.405-6(a).
(iii) The ordering activity shall specify the type of order (i.e.,
firm-fixed-price, labor-hour) for the services identified in the
statement of work. The contracting officer should establish firm-fixed-
prices, as appropriate.
(3) For proposed orders exceeding the simplified acquisition
threshold. In addition to meeting the requirements of 8.405-2(c)(2)(i)
and (iii), the following procedures apply:
(i) Each order shall be placed on a competitive basis in accordance
with (c)(3)(ii) and (iii) of this section, unless this requirement is
waived on the basis of a justification that is prepared and approved in
accordance with 8.405-6.
(ii) The ordering activity contracting officer shall provide an RFQ
that includes a statement of work and the evaluation criteria.
(iii) The ordering activity contracting officer shall--
(A) Post the RFQ on e-Buy to afford all schedule contractors
offering the required services under the appropriate multiple-award
schedule(s) an opportunity to submit a quote; or
(B) Provide the RFQ to as many schedule contractors as practicable,
consistent with market research appropriate to the circumstances, to
reasonably ensure that quotes will be received from at least three
contractors that can fulfill the requirements. When fewer than three
quotes are received from schedule contractors that can fulfill the
requirements, the contracting officer shall prepare a written
determination to explain that no additional contractors capable of
fulfilling the requirements could be identified despite reasonable
efforts to do so. The determination must clearly explain efforts made
to obtain quotes from at least three schedule contractors.
(C) Ensure all quotes received are fairly considered and award is
made in accordance with the evaluation criteria in the RFQ.
(d) * * * Place the order with the schedule contractor that
represents the best value (see 8.404(d) and 8.405-4). * * *
(e) * * *
(8) When an order exceeds the simplified acquisition threshold,
evidence of compliance with the ordering procedures at 8.405-2(c).
0
10. Revise section 8.405-3 to read as follows:
8.405-3 Blanket purchase agreements (BPAs).
(a) Establishment. (1) Ordering activities may establish BPAs under
any schedule contract to fill repetitive needs for supplies or
services. Ordering activities shall establish the BPA with the schedule
contractor(s) that can provide the supply or service that represents
the best value.
(2) In addition to price (see 8.404(d) and 8.405-4), when
determining best value, the ordering activity may consider, among other
factors, the following:
(i) Past performance.
(ii) Special features of the supply or service required for
effective program performance.
(iii) Trade-in considerations.
(iv) Probable life of the item selected as compared with that of a
comparable item.
(v) Warranty considerations.
(vi) Maintenance availability.
(vii) Environmental and energy efficiency considerations.
(viii) Delivery terms.
(3)(i) The ordering activity contracting officer shall, to the
maximum extent practicable, give preference to establishing multiple-
award BPAs, rather than establishing a single-award BPA.
(ii) No single-award BPA with an estimated value exceeding $103
million (including any options), may be awarded unless the head of the
agency determines in writing that--
(A) The orders expected under the BPA are so integrally related
that only a single source can reasonably perform the work;
(B) The BPA provides only for firm-fixed priced orders for--
(1) Products with unit prices established in the BPA; or
[[Page 14554]]
(2) Services with prices established in the BPA for specific tasks
to be performed;
(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 BPA to a
single source for exceptional circumstances.
(iii) The requirement for a determination for a single-award BPA
greater than $103 million is in addition to any applicable requirement
for a limited-source justification at 8.405-6. However, the two
documents may be combined into one document.
(iv) In determining how many multiple-award BPAs to establish or
that a single-award BPA is appropriate, the contracting officer should
consider the following factors and document the decision in the
acquisition plan or BPA file:
(A) The scope and complexity of the requirement(s);
(B) The benefits of on-going competition and the need to
periodically compare multiple technical approaches or prices;
(C) The administrative costs of BPAs; and
(D) The technical qualifications of the schedule contractor(s).
(4) BPAs shall address the frequency of ordering, invoicing,
discounts, requirements (e.g., estimated quantities, work to be
performed), delivery locations, and time.
(5) When establishing multiple-award BPAs, the ordering activity
shall specify the procedures for placing orders under the BPAs in
accordance with 8.405-3(c)(2).
(6) Establishment of a multi-agency BPA against a Federal Supply
Schedule contract is permitted if the multi-agency BPA identifies the
participating agencies and their estimated requirements at the time the
BPA is established.
(7) Minimum documentation. The ordering activity contracting
officer shall include in the BPA file documentation the--
(i) Schedule contracts considered, noting the contractor to which
the BPA was awarded;
(ii) Description of the supply or service purchased;
(iii) Price;
(iv) Required justification for a limited-source BPA (see 8.405-6),
if applicable;
(v) Determination for a single-award BPA exceeding $100 million, if
applicable (see (a)(3)(ii));
(vi) Documentation supporting the decision to establish multiple-
award BPAs or a single-award BPA (see (a)(3)(iv));
(vii) Evidence of compliance with paragraph (b) of this section,
for competitively awarded BPAs, if applicable; and
(viii) Basis for the award decision. This should include the
evaluation methodology used in selecting the contractor, the rationale
for any tradeoffs in making the selection, and a price reasonableness
determination for services requiring a statement of work.
(b) Competitive procedures for establishing a BPA. This paragraph
applies to the establishment of a BPA, in addition to applicable
instructions in paragraph (a).
(1) For supplies, and for services not requiring a statement of
work. The procedures of this paragraph apply when establishing a BPA
for supplies and services that are listed in the schedule contract at a
fixed price for the performance of a specific task, where a statement
of work is not required (e.g., installation, maintenance, and repair).
(i) If the estimated value of the BPA does not exceed the
simplified acquisition threshold. (A) The ordering activity shall:
(1) Consider reasonably available information about the supply or
service offered under MAS contracts by surveying at least three
schedule contractors through the GSA Advantage! on-line shopping
service, by reviewing the catalogs or pricelists of at least three
schedule contractors, or by requesting quotations from at least three
schedule contractors (see 8.405-5); or
(2) Document the circumstances for restricting consideration to
fewer than three schedule contractors based on one of the reasons at
8.405-6(a).
(B) The ordering activity shall establish the BPA with the schedule
contractor(s) that can provide the best value.
(ii) If the estimated value of the BPA exceeds the simplified
acquisition threshold. The ordering activity contracting officer:
(A) Shall provide an RFQ that includes a description of the
supplies to be delivered or the services to be performed and the basis
upon which the selection will be made.
(B)(1) Shall post the RFQ on e-Buy to afford all schedule
contractors offering the required supplies or services under the
appropriate multiple award schedule(s) an opportunity to submit a
quote; or
(2) Shall provide the RFQ to as many schedule contractors as
practicable, consistent with market research appropriate to the
circumstances, to reasonably ensure that quotes will be received from
at least three contractors that can fulfill the requirements. When
fewer than three quotes are received from schedule contractors that can
fulfill the requirements, the contracting officer shall prepare a
written determination explaining that no additional contractors capable
of fulfilling the requirements could be identified despite reasonable
efforts to do so. The determination must clearly explain efforts made
to obtain quotes from at least three schedule contractors.
(C) Shall ensure all quotes received are fairly considered and
award is made in accordance with the basis for selection in the RFQ.
After seeking price reductions (see 8.405-4), establish the BPA with
the schedule contractor(s) that provides the best value.
(D) The BPA must be established in accordance with paragraphs
(b)(1)(ii)(B) and (C) of this section, unless the requirement is waived
on the basis of a justification that is prepared and approved in
accordance with 8.405-6.
(2) For services requiring a statement of work. This applies when
establishing a BPA that requires services priced at hourly rates, as
provided by the schedule contract. The applicable services will be
identified in the Federal Supply Schedule publications and the
contractor's pricelists.
(i) Statements of Work (SOWs). The ordering activity shall develop
a statement of work. All Statements of Work shall include a description
of work to be performed; location of work; period of performance;
deliverable schedule; applicable performance standards; and any special
requirements (e.g., security clearances, travel, and special
knowledge). To the maximum extent practicable, agency requirements
shall be performance-based statements (see subpart 37.6).
(ii) Type-of-order preference. The ordering activity shall specify
the order type (i.e., firm-fixed price, labor-hour) for the services
identified in the statement of work. The contracting officer should
establish firm-fixed prices, as appropriate.
(iii) Request for Quotation procedures. The ordering activity must
provide a RFQ, which includes the statement of work and evaluation
criteria (e.g., experience and past performance), to schedule
contractors that offer services that will meet the agency's needs. The
RFQ may be posted to GSA's electronic RFQ system, e-Buy (see 8.402(d)).
(iv) If the estimated value of the BPA does not exceed the
simplified acquisition threshold. The ordering activity shall provide
the RFQ (including the statement of work and evaluation criteria) to at
least three
[[Page 14555]]
schedule contractors that offer services that will meet the agency's
needs.
(v) If estimated value of the BPA exceeds the simplified
acquisition threshold. The ordering activity contracting officer--
(A) Shall post the RFQ on e-Buy to afford all schedule contractors
offering the required supplies or services under the appropriate
multiple-award schedule an opportunity to submit a quote; or
(B) Shall provide the RFQ, which includes the statement of work and
evaluation criteria, to as many schedule contractors as practicable,
consistent with market research appropriate to the circumstances, to
reasonably ensure that quotes will be received from at least three
contractors that can fulfill the requirements. When fewer than three
quotes are received from schedule contractors that can fulfill the
requirements, the contracting officer shall document the file. The
contracting officer shall prepare a written determination explaining
that no additional contractors capable of fulfilling the requirements
could be identified despite reasonable efforts to do so. The
determination must clearly explain efforts made to obtain quotes from
at least three schedule contractors.
(vi) The ordering activity contracting officer shall ensure all
quotes received are fairly considered and award is made in accordance
with the basis for selection in the RFQ. The ordering activity is
responsible for considering the level of effort and the mix of labor
proposed to perform, and for determining that the proposed price is
reasonable.
(vii) The BPA must be established in accordance with paragraph
(b)(2)(iv) or (v), and with paragraph (b)(2)(vi) of this section,
unless the requirement is waived on the basis of a justification that
is prepared and approved in accordance with 8.405-6.
(viii) The ordering activity contracting officer shall establish
the BPA with the schedule contractor(s) that represents the best value
(see 8.404(d) and 8.405-4).
(3) After award, ordering activities should provide timely
notification to unsuccessful offerors. If an unsuccessful offeror
requests information on an award that was based on factors other than
price alone, a brief explanation of the basis for the award decision
shall be provided.
(c) Ordering from BPAs. The procedures in this paragraph (c) are
not required for BPAs established on or before May 16, 2011. However,
ordering activities are encouraged to use the procedures for such BPAs.
(1) Single-award BPA. If the ordering activity establishes a
single-award BPA, authorized users may place the order directly under
the established BPA when the need for the supply or service arises.
(2) Multiple-award BPAs. (i) Orders at or below the micro-purchase
threshold. The ordering activity may place orders at or below the
micro-purchase threshold with any BPA holder that can meet the agency
needs. The ordering activity should attempt to distribute any such
orders among the BPA holders.
(ii) Orders exceeding the micro-purchase threshold but not
exceeding the simplified acquisition threshold. (A) The ordering
activity must provide each multiple-award BPA holder a fair opportunity
to be considered for each order exceeding the micro-purchase threshold,
but not exceeding the simplified acquisition threshold unless one of
the exceptions at 8.405-6(a)(1)(i) applies.
(B) The ordering activity need not contact each of the multiple-
award BPA holders before placing an order if information is available
to ensure that each BPA holder is provided a fair opportunity to be
considered for each order.
(C) The ordering activity contracting officer shall document the
circumstances when restricting consideration to less than all multiple-
award BPA holders offering the required supplies and services.
(iii) Orders exceeding the simplified acquisition threshold. (A)
The ordering activity shall place an order in accordance with
paragraphs (c)(2)(iii)(A)(1), (2) and (3) of this paragraph, unless the
requirement is waived on the basis of a justification that is prepared
and approved in accordance with 8.405-6. The ordering activity shall--
(1) Provide an RFQ to all BPA holders offering the required
supplies or services under the multiple-award BPAs, to include a
description of the supplies to be delivered or the services to be
performed and the basis upon which the selection will be made;
(2) Afford all BPA holders responding to the RFQ an opportunity to
submit a quote; and
(3) Fairly consider all responses received and make award in
accordance with the selection procedures.
(B) The ordering activity shall document evidence of compliance
with these procedures and the basis for the award decision.
(3) BPAs for hourly-rate services. If the BPA is for hourly-rate
services, the ordering activity shall develop a statement of work for
each order covered by the BPA. Ordering activities should place these
orders on a firm-fixed price basis to the maximum extent practicable.
All orders under the BPA shall specify a price for the performance of
the tasks identified in the statement of work.
(d) Duration of BPAs. (1) Multiple-award BPAs generally should not
exceed five years in length, but may do so to meet program
requirements.
(2) A single-award BPA shall not exceed one year. It may have up to
four one-year options. See paragraph (e) of this section for
requirements associated with option exercise.
(3) Contractors may be awarded BPAs that extend beyond the current
term of their GSA Schedule contract, so long as there are option
periods in their GSA Schedule contract that, if exercised, will cover
the BPA's period of performance.
(e) Review of BPAs. (1) The ordering activity contracting officer
shall review the BPA and determine in writing, at least once a year
(e.g., at option exercise), whether--
(i) The schedule contract, upon which the BPA was established, is
still in effect;
(ii) The BPA still represents the best value (see 8.404(d)); and
(iii) Estimated quantities/amounts have been exceeded and
additional price reductions can be obtained.
(2) The determination shall be included in the BPA file
documentation.
(3) If a single-award BPA is established, the ordering activity
contracting officer's annual determination must be approved by the
ordering activity's competition advocate prior to the exercise of an
option to extend the term of the BPA.
0
11. Revise section 8.405-4 to read as follows:
8.405-4 Price reductions.
Ordering activities may request a price reduction at any time
before placing an order, establishing a BPA, or in conjunction with the
annual BPA review. However, the ordering activity shall seek a price
reduction when the order or BPA exceeds the simplified acquisition
threshold. Schedule contractors are not required to pass on to all
schedule users a price reduction extended only to an individual
ordering activity for a specific order or BPA.
0
12. Revise section 8.405-6 to read as follows:
8.405-6 Limiting sources.
Orders placed or BPAs established under Federal Supply Schedules
are exempt from the requirements in part 6. However, an ordering
activity must justify its action when restricting
[[Page 14556]]
consideration in accordance with paragraphs (a) or (b) of this
section--
(a) Orders or BPAs exceeding the micro-purchase threshold based on
a limited sources justification. (1) Circumstances justifying limiting
the source. (i) For a proposed order or BPA with an estimated value
exceeding the micro-purchase threshold not placed or established in
accordance with the procedures in 8.405-1, 8.405-2, or 8.405-3, the
only circumstances that may justify the action are--
(A) An urgent and compelling need exists, and following the
procedures would result in unacceptable delays;
(B) Only one source is capable of providing the supplies or
services required at the level of quality required because the supplies
or services are unique or highly specialized; or
(C) In the interest of economy and efficiency, the new work is a
logical follow-on to an original Federal Supply Schedule order provided
that the original order was placed in accordance with the applicable
Federal Supply Schedule ordering procedures. The original order or BPA
must not have been previously issued under sole-source or limited-
sources procedures.
(ii) See 8.405-6(c) for the content of the justification for an
order or BPA exceeding the simplified acquisition threshold.
(2) Posting. (i) Within 14 days after placing an order or
establishing a BPA exceeding the simplified acquisition threshold that
is supported by a limited-sources justification permitted under any of
the circumstances under paragraph (a)(1) of this section, the ordering
activity shall--
(A) Publish a notice in accordance with 5.301; and
(B) Post the justification--
(1) At the GPE http://www.fedbizopps.gov;
(2) On the Web site of the ordering activity agency, which may
provide access to the justification by linking to the GPE; and
(3) For a minimum of 30 days.
(ii) In the case of an order or BPA permitted under paragraph
(a)(1)(i)(A) of this section, the justification shall be posted within
30 days after award.
(iii) Contracting officers shall carefully screen all
justifications for contractor proprietary data and remove all such
data, and such references and citations as are necessary to protect the
proprietary data, before making the justifications available for public
inspection. Contracting officers shall also be guided by the exemptions
to disclosure of information contained in the Freedom of Information
Act (5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in
determining whether other data should be removed. Although the
submitter notice process set out in Executive Order 12600
``Predisclosure Notification Procedures for Confidential Commercial
Information'' does not apply, if the justification appears to contain
proprietary data, the contracting officer should provide the contractor
that submitted the information an opportunity to review the
justification for proprietary data before making the justification
available for public inspection, redacted as necessary. This process
must not prevent or delay the posting of the justification in
accordance with the timeframes required in paragraphs (a)(2)(i) and
(ii) of this section.
(iv) This posting requirement does not apply when disclosure would
compromise the national security (e.g., would result in disclosure of
classified information) or create other security risks.
(b) Items peculiar to one manufacturer. An item peculiar to one
manufacturer can be a particular brand name, product, or a feature of a
product, peculiar to one manufacturer. A brand name item, whether
available on one or more schedule contracts, is an item peculiar to one
manufacturer.
(1) Brand name specifications shall not be used unless the
particular brand name, product, or feature is essential to the
Government's requirements, and market research indicates other
companies' similar products, or products lacking the particular
feature, do not meet, or cannot be modified to meet, the agency's
needs.
(2) Documentation. (i) For proposed orders or BPAs with an
estimated value exceeding the micro-purchase threshold, but not
exceeding the simplified acquisition threshold, the ordering activity
contracting officer shall document the basis for restricting
consideration to an item peculiar to one manufacturer.
(ii) For proposed orders or BPAs with an estimated value exceeding
the simplified acquisition threshold see paragraph (c) of this section.
(3) Posting. (i) The ordering activity shall post the following
information along with the Request for Quotation (RFQ) to e-Buy (http://www.ebuy.gsa.gov):
(A) For proposed orders or BPAs with an estimated value exceeding
$25,000, but not exceeding the simplified acquisition threshold, the
documentation required by paragraph (b)(2)(i) of this section.
(B) For proposed orders or BPAs with an estimated value exceeding
the simplified acquisition threshold, the justification required by
paragraph (c) of this section.
(ii) The posting requirement of paragraph (b)(3)(i) of this section
does not apply when--
(A) Disclosure would compromise the national security (e.g., would
result in disclosure of classified information) or create other
security risks. The fact that access to classified matter may be
necessary to submit a proposal or perform the contract does not, in
itself, justify use of this exception;
(B) The nature of the file (e.g., size, format) does not make it
cost-effective or practicable for contracting officers to provide
access through e-Buy; or
(C) The agency's senior procurement executive makes a written
determination that access through e-Buy is not in the Government's
interest.
(c) An order or BPA with an estimated value exceeding the
simplified acquisition threshold. (1) For a proposed order or BPA
exceeding the simplified acquisition threshold, the requiring activity
shall assist the ordering activity contracting officer in the
preparation of the justification. The justification shall cite that the
acquisition is conducted under the authority of the Multiple-Award
Schedule Program (see 8.401).
(2) At a minimum, each justification shall include the following
information:
(i) Identification of the agency and the contracting activity, and
specific identification of the document as a ``Limited-Sources
Justification.''
(ii) Nature and/or description of the action being approved.
(iii) A description of the supplies or services required to meet
the agency's needs (including the estimated value).
(iv) The authority and supporting rationale (see 8.405-6(a)(1)(i)
and (b)(1)) and, if applicable, a demonstration of the proposed
contractor's unique qualifications to provide the required supply or
service.
(v) A determination by the ordering activity contracting officer
that the order represents the best value consistent with 8.404(d).
(vi) A description of the market research conducted among schedule
holders and the results or a statement of the reason market research
was not conducted.
(vii) Any other facts supporting the justification.
(viii) A statement of the actions, if any, the agency may take to
remove or overcome any barriers that led to the restricted
consideration before any subsequent acquisition for the supplies or
services is made.
[[Page 14557]]
(ix) The ordering activity contracting officer's certification that
the justification is accurate and complete to the best of the
contracting officer's knowledge and belief.
(x) Evidence that any supporting data that is the responsibility of
technical or requirements personnel (e.g., verifying the Government's
minimum needs or requirements or other rationale for limited sources)
and which form a basis for the justification have been certified as
complete and accurate by the technical or requirements personnel.
(xi) For justifications under 8.405-6(a)(1), a written
determination by the approving official identifying the circumstance
that applies.
(d) Justification approvals. (1) For a proposed order or BPA with
an estimated value exceeding the simplified acquisition threshold, but
not exceeding $650,000, the ordering activity contracting officer's
certification that the justification is accurate and complete to the
best of the ordering activity contracting officer's knowledge and
belief will serve as approval, unless a higher approval level is
established in accordance with agency procedures.
(2) For a proposed order or BPA with an estimated value exceeding
$650,000, but not exceeding $12.5 million, the justification must be
approved by the competition advocate of the activity placing the order,
or by an official named in paragraph (d)(3) or (d)(4) of this section.
This authority is not delegable.
(3) For a proposed order or BPA with an estimated value exceeding
$12.5 million, but not exceeding $62.5 million (or, for DoD, NASA, and
the Coast Guard, not exceeding $85.5 million), the justification must
be approved by--
(i) The head of the procuring activity placing the order;
(ii) A designee who--
(A) If a member of the armed forces, is a general or flag officer;
(B) If a civilian, is serving in a position in a grade above GS-15
under the General Schedule (or in a comparable or higher position under
another schedule); or
(iii) An official named in paragraph (d)(4) of this section.
(4) For a proposed order or BPA with an estimated value exceeding
$62.5 million (or, for DoD, NASA, and the Coast Guard, over $85.5
million), the justification must be approved by the senior procurement
executive of the agency placing the order. This authority is not
delegable, except in the case of the Under Secretary of Defense for
Acquisition, Technology, and Logistics, acting as the senior
procurement executive for the Department of Defense.
0
13. Revise section 8.406-1 to read as follows:
8.406-1 Order placement.
(a) Ordering activities may place orders orally, except for--
(1) Supplies and services not requiring a statement of work
exceeding the simplified acquisition threshold;
(2) Services requiring a statement of work (SOW); and
(3) Orders containing brand-name specifications that exceed
$25,000.
(b) Ordering activities may use Optional Form 347, an agency-
prescribed form, or an established electronic communications format to
order supplies or services from schedule contracts.
(c) The ordering activity shall place an order directly with the
contractor in accordance with the terms and conditions of the
pricelists (see 8.402(b)). Prior to placement of the order, the
ordering activity shall ensure that the regulatory and statutory
requirements of the requiring agency have been applied.
(d) Orders shall include the following information in addition to
any information required by the schedule contract:
(1) Complete shipping and billing addresses.
(2) Contract number and date.
(3) Agency order number.
(4) F.o.b. delivery point; i.e., origin or destination.
(5) Discount terms.
(6) Delivery time or period of performance.
(7) Special item number or national stock number.
(8) A statement of work for services, when required, or a brief,
complete description of each item (when ordering by model number,
features and options such as color, finish, and electrical
characteristics, if available, must be specified).
(9) Quantity and any variation in quantity.
(10) Number of units.
(11) Unit price.
(12) Total price of order.
(13) Points of inspection and acceptance.
(14) Other pertinent data; e.g., delivery instructions or receiving
hours and size-of-truck limitation.
(15) Marking requirements.
(16) Level of preservation, packaging, and packing.
PART 16--TYPES OF CONTRACTS
0
14. Amend section 16.505 by--
0
a. Revising paragraph (a)(1) and the fourth sentence of paragraph
(b)(1)(ii);
0
b. Redesignating paragraphs (b)(1)(iii) and (b)(1)(iv) as paragraphs
(b)(1)(iv) and (b)(1)(v), respectively;
0
c. Adding a new paragraph (b)(1)(iii); and
0
d. Revising paragraphs (b)(2) and (b)(5).
The revised and added text reads as follows:
16.505 Ordering.
(a) General. (1) In general, the contracting officer does not
synopsize orders under indefinite-delivery contracts; except see
16.505(a)(10) and 16.505(b)(2)(ii)(D).
* * * * *
(b) * * *
(1) * * *
(ii) * * * If the order does not exceed the simplified acquisition
threshold, the contracting officer need not contact each of the
multiple awardees under the contract before selecting an order awardee
if the contracting officer has information available to ensure that
each awardee is provided a fair opportunity to be considered for each
order. * * *
(iii) Orders exceeding the simplified acquisition threshold. (A)
Each order exceeding the simplified acquisition threshold shall be
placed on a competitive basis in accordance with paragraph
(b)(1)(iii)(B) of this section, unless supported by a written
determination that one of the circumstances described at
16.505(b)(2)(i) applies to the order and the requirement is waived on
the basis of a justification that is prepared in accordance with
16.505(b)(2)(ii)(B);
(B) The contracting officer shall--
(1) Provide a fair notice of the intent to make a purchase,
including a clear description of the supplies to be delivered or the
services to be performed and the basis upon which the selection will be
made to all contractors offering the required supplies or services
under the multiple-award contract; and
(2) Afford all contractors responding to the notice a fair
opportunity to submit an offer and have that offer fairly considered.
* * * * *
(2) Exceptions to the fair opportunity process. (i) The contracting
officer shall give every awardee a fair opportunity to be considered
for a delivery-order or task-order exceeding $3,000 unless one of the
following statutory exceptions applies:
(A) The agency need for the supplies or services is so urgent that
providing a fair opportunity would result in unacceptable delays.
[[Page 14558]]
(B) Only one awardee is capable of providing the supplies or
services required at the level of quality required because the supplies
or services ordered are unique or highly specialized.
(C) The order must be issued on a sole-source basis in the interest
of economy and efficiency because it is a logical follow-on to an order
already issued under the contract, provided that all awardees were
given a fair opportunity to be considered for the original order.
(D) It is necessary to place an order to satisfy a minimum
guarantee.
(E) For orders exceeding the simplified acquisition threshold, a
statute expressly authorizes or requires that the purchase be made from
a specified source.
(ii) The justification for an exception to fair opportunity shall
be in writing as specified in paragraphs (b)(2)(ii)(A) or (B) of this
section.
(A) Orders exceeding $3,000, but not exceeding the simplified
acquisition threshold. The contracting officer shall document the basis
for using an exception to the fair opportunity process. If the
contracting officer uses the logical follow-on exception, the rationale
shall describe why the relationship between the initial order and the
follow-on is logical (e.g., in terms of scope, period of performance,
or value).
(B) Orders exceeding the simplified acquisition threshold. As a
minimum, each justification shall include the following information and
be approved in accordance with paragraph (b)(2)(ii)(C) of this section:
(1) Identification of the agency and the contracting activity, and
specific identification of the document as a ``Justification for an
Exception to Fair Opportunity.''
(2) Nature and/or description of the action being approved.
(3) A description of the supplies or services required to meet the
agency's needs (including the estimated value).
(4) Identification of the exception to fair opportunity (see
16.505(b)(2)) and the supporting rationale, including a demonstration
that the proposed contractor's unique qualifications or the nature of
the acquisition requires use of the exception cited. If the contracting
officer uses the logical follow-on exception, the rationale shall
describe why the relationship between the initial order and the follow-
on is logical (e.g., in terms of scope, period of performance, or
value).
(5) A determination by the contracting officer that the anticipated
cost to the Government will be fair and reasonable.
(6) Any other facts supporting the justification.
(7) A statement of the actions, if any, the agency may take to
remove or overcome any barriers that led to the exception to fair
opportunity before any subsequent acquisition for the supplies or
services is made.
(8) The contracting officer's certification that the justification
is accurate and complete to the best of the contracting officer's
knowledge and belief.
(9) Evidence that any supporting data that is the responsibility of
technical or requirements personnel (e.g., verifying the Government's
minimum needs or requirements or other rationale for an exception to
fair opportunity) and which form a basis for the justification have
been certified as complete and accurate by the technical or
requirements personnel.
(10) A written determination by the approving official that one of
the circumstances in (b)(2)(i)(A) through (E) of this section applies
to the order.
(C) Approval. (1) For proposed orders exceeding the simplified
acquisition threshold, but not exceeding $650,000, the ordering
activity contracting officer's certification that the justification is
accurate and complete to the best of the ordering activity contracting
officer's knowledge and belief will serve as approval, unless a higher
approval level is established in accordance with agency procedures.
(2) For a proposed order exceeding $650,000, but not exceeding
$12.5 million, the justification must be approved by the competition
advocate of the activity placing the order, or by an official named in
paragraph (b)(2)(ii)(C)(3) or (4) of this section. This authority is
not delegable.
(3) For a proposed order exceeding $12.5 million, but not exceeding
$62.5 million (or, for DoD, NASA, and the Coast Guard, not exceeding
$85.5 million), the justification must be approved by--
(i) The head of the procuring activity placing the order;
(ii) A designee who--
(A) If a member of the armed forces, is a general or flag officer;
(B) If a civilian, is serving in a position in a grade above GS-15
under the General Schedule (or in a comparable or higher position under
another schedule); or
(iii) An official named in paragraph (b)(2)(ii)(C)(4) of this
section.
(4) For a proposed order exceeding $62.5 million (or, for DoD,
NASA, and the Coast Guard, over $85.5 million), the justification must
be approved by the senior procurement executive of the agency placing
the order. This authority is not delegable, except in the case of the
Under Secretary of Defense for Acquisition, Technology, and Logistics,
acting as the senior procurement executive for the Department of
Defense.
(D) Posting. (1) Except as provided in paragraph (b)(2)(ii)(D)(5)
of this section, within 14 days after placing an order exceeding the
simplified acquisition threshold that does not provide for fair
opportunity in accordance with 16.505(b), the contract officer shall--
(i) Publish a notice in accordance with 5.301; and
(ii) Make publicly available the justification required at
(b)(2)(ii)(B) of this section.
(2) The justification shall be made publicly available--
(i) At the GPE http://www.fedbizopps.gov;
(ii) On the Web site of the agency, which may provide access to the
justifications by linking to the GPE; and
(iii) Must remain posted for a minimum of 30 days.
(3) In the case of an order permitted under paragraph (b)(2)(i)(A)
of this subsection, the justification shall be posted within 30 days
after award of the order.
(4) Contracting officers shall carefully screen all justifications
for contractor proprietary data and remove all such data, and such
references and citations as are necessary to protect the proprietary
data, before making the justifications available for public inspection.
Contracting officers shall also be guided by the exemptions to
disclosure of information contained in the Freedom of Information Act
(5 U.S.C. 552) and the prohibitions against disclosure in 24.202 in
determining whether other data should be removed. Although the
submitter notice process set out in Executive Order 12600
``Predisclosure Notification Procedures for Confidential Commercial
Information'' does not apply, if the justification appears to contain
proprietary data, the contracting officer should provide the contractor
that submitted the information an opportunity to review the
justification for proprietary data before making the justification
available for public inspection, redacted as necessary. This process
must not prevent or delay the posting of the justification in
accordance with the timeframes required in paragraphs (1) and (3).
(5) The posting requirement of this section does not apply when
disclosure would compromise the national security (e.g., would result
in disclosure of
[[Page 14559]]
classified information) or create other security risks.
* * * * *
(5) Decision documentation for orders. (i) The contracting officer
shall document in the contract file the rationale for placement and
price of each order, including the basis for award and the rationale
for any tradeoffs among cost or price and non-cost considerations in
making the award decision. This documentation need not quantify the
tradeoffs that led to the decision.
(ii) The contract file shall also identify the basis for using an
exception to the fair opportunity process (see paragraph (b)(2)).
* * * * *
PART 18--EMERGENCY ACQUISITIONS
18.105 [Amended]
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15. Amend section 18.105 by removing ``(See 8.405-3(a)(4))'' and adding
``(see 8.405-3(a)(6))'' in its place.
PART 38--FEDERAL SUPPLY SCHEDULE CONTRACTING
0
16. Amend section 38.101 by revising the second sentence in paragraph
(e) to read as follows:
38.101 General.
* * * * *
(e) * * * The requirements of parts 5, 6, and 19 apply at the
acquisition planning stage prior to issuing the schedule solicitation
and, generally, do not apply to orders and BPAs placed under resulting
schedule contracts (except see 8.404).
[FR Doc. 2011-5553 Filed 3-15-11; 8:45 am]
BILLING CODE 6820-EP-P