[Federal Register Volume 79, Number 132 (Thursday, July 10, 2014)]
[Proposed Rules]
[Pages 39361-39362]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-16149]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 15
[FAR Case 2013-012; Docket No. 2013-0012; Sequence No. 1]
RIN 9000-AM57
Federal Acquisition Regulation; Review and Justification of Pass-
Through Contracts
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 section 802 of the National
Defense Authorization Act of Fiscal Year 2013. This section provides
additional requirements relative to the review and justification of
Pass-Through contracts.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat at one of the addressees shown below on or
before September 9, 2014 to be considered in the formation of the final
rule.
ADDRESSES: Submit comments in response to FAR Case 2013-012 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2013-012''. Select the link ``Comment Now'' that corresponds with ``FAR
Case 2013-012.'' Follow the instructions provided at the ``Comment
Now'' screen. Please include your name, company name (if any), and
``FAR Case 2013-012'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2013-
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. Edward N. Chambers, Procurement
Analyst, at 202-501-3221, for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat at 202-501-4755. Please cite FAR Case 2013-012.
SUPPLEMENTARY INFORMATION:
I. Background
The National Defense Authorization Act (NDAA) for Fiscal Year 2013
was signed into law and effective on December 31, 2012. Section 802 of
the law provides additional requirements relative to the review and
justification of Pass-Through contracts. Specifically, this law
requires in those instances where an offeror for a contract, task
order, or delivery order informs the agency pursuant to FAR 52.215-22
of their intention to award subcontracts for more than 70 percent of
the total cost of work to be performed under the contract, task order,
or delivery order, the contracting officer is required to (1) consider
the availability of alternative contract vehicles and the feasibility
of contracting directly with a subcontractor or subcontractors that
will perform the bulk of the work; (2) make a written determination
that the contracting approach selected is in the best interest of the
Government; and (3) document the basis for such determination.
Therefore, FAR 15.404-1(h) is being created by this rule to implement
these statutory requirements.
However, Section 1615 of the NDAA for Fiscal Year 2014, which was
signed into law and effective on December 26, 2013, provides that for
contracts under the provisions of Section 46 of the Small Business Act
(15 U.S.C. 657s) the requirements under Section 802 of the NDAA for
Fiscal Year 2013 do not apply. Accordingly, the proposed rule exempts
FAR Part 19 acquisitions.
While Section 802 only applies to contracts with the Department of
Defense, the Department of State, and the United States Agency for
International Development, for the purpose of consistency, it was
decided to apply the section's requirements to all of the agencies
subject to the FAR.
II. 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 a significant regulatory action and, therefore, was 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.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect this proposed rule to have a
significant economic impact on a substantial number of small entities
within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et
seq., because the rule augments the current responsibilities of
contracting officers relative to the review and justification of pass-
through contracts and does not initiate or impose any new
administrative or performance requirements on contractors.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. DoD, GSA, and NASA invite comments from small business
entities 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
consistent with 5 U.S.C. 610. Interested parties
[[Page 39362]]
must submit such comments separately and should cite 5 U.S.C. 610, FAR
Case 2013-012, in correspondence.
IV. 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 Part 15
Government procurement.
Dated: July 2, 2014.
William Clark,
Acting Director, Office of Government-wide Acquisition Policy, Office
of Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose to amend 48 CFR part 15 as
set forth below:
PART 15--CONTRACTING BY NEGOTIATION
0
1. The authority citation for 48 CFR part 15 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
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2. Amend section 15.404-1 by adding paragraph (h) to read as follows.
Sec. 15.404-1 Proposal analysis techniques.
* * * * *
(h) Review and justification of pass-through contracts. (1) The
requirements of this paragraph (h) are applicable to all agencies. The
requirements apply by law to the Department of Defense, the Department
of State, and the United States Agency for International Development,
per Section 802 of the National Defense Authorization Act (NDAA) for
Fiscal Year 2013. The requirements apply as a matter of policy to other
Federal agencies.
(2) Except as provided in paragraph (h)(3) of this section, when an
offeror for a contract or a task or delivery order informs the
contracting officer pursuant to 52.215-22 that it intends to award
subcontracts for more than 70 percent of the total cost of work to be
performed under the contract, task or delivery order, the contracting
officer shall--
(i) Consider the availability of alternative contract vehicles and
the feasibility of contracting directly with a subcontractor or
subcontractors that will perform the bulk of the work;
(ii) Make a written determination that the contracting approach
selected is in the best interest of the Government; and
(iii) Document the basis for such determination.
(3) Contract actions under FAR Part 19 are exempt from the
requirements of this paragraph (h).
[FR Doc. 2014-16149 Filed 7-9-14; 8:45 am]
BILLING CODE 6820-14-P