2010-16898. Defense Federal Acquisition Regulation Supplement; Publication of Notification of Bundling of Contracts of the Department of Defense (DFARS Case 2009-D033)

AGENCY:

Defense Acquisition Regulations System, Department of Defense (DoD).

ACTION:

Interim rule with request for comments.

SUMMARY:

DoD is issuing an interim rule amending the Defense Federal Acquisition Regulation Supplement (DFARS) to implement section 820 of the National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-84, enacted October 28, 2009).

DATES:

Effective Date: July 13, 2010.

Comment Date: Comments on the interim rule should be submitted in writing to the address shown below on or before September 13, 2010, to be considered in the formation of the final rule.

ADDRESSES:

Submit comments identified by DFARS Case 2009-D033, using any of the following methods:

○ Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments.

○ E-mail: [e-mail]. Include DFARS Case 2009-D033 in the subject line of the message.

○ Fax: [phone].

○ Mail: Defense Acquisition Regulations System, Attn: Ms. Meredith Murphy, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060.

Comments received generally will be posted without change to http://www.regulations.gov,, including any personal information provided.

FOR FURTHER INFORMATION CONTACT:

Meredith Murphy, Defense Acquisition Regulations System, OUSD(AT&L)DPAP(DARS), Room 3B855, 3060 Defense Pentagon, Washington, DC 20301-3060. Telephone [phone]; facsimile 703-602-0350.

SUPPLEMENTARY INFORMATION:

A. Background

This DFARS case implements section 820 of the National Defense Authorization Act for Fiscal Year 2010. Section 820 is entitled “Publication of Notification of Bundling of Contracts of the Department of Defense.”

The new statute requires DoD contracting officers to publish a notification “consistent with the requirements” of FAR 10.001(c)(2) on FedBizOpps.gov, or any successor site, at least 30 days prior to the release of a solicitation for a bundled acquisition. In addition, if the DoD agency has determined that “measurably substantial benefits are expected to be derived as a result of bundling,” the notification must include a brief description of those benefits. The acquisitions covered by section 820 are defined at 820(b) as those that are funded entirely by DoD funds and covered by FAR 7.107, entitled “Additional requirements for acquisitions involving bundling.”

The statute, at section 820(c), provides that nothing in the new requirement shall be construed to—

(a) Alter any other publication or synopsis requirement;

(b) Require the public availability of information that is protected by the FOIA (5 U.S.C. 552(b)); or

(c) Require contracting officers to delay the issuance of a solicitation in order to meet the 30-day period (between the notification and the release of the solicitation) if the expedited issuance of the solicitation is otherwise authorized under any other requirement of law or regulation.

The FAR, at 10.001(c), addresses the market research requirements for agencies contemplating a bundled contract award. Currently, FAR 10.001(c)(2) requires that the agency, at least 30 days before release of a solicitation for a potential bundled procurement or 30 days prior to placing a bundled order without a solicitation, must notify any affected incumbent small businesses of (a) the intention to bundle the requirement and (b) how the small businesses can contact the appropriate SBA representative. This requirement is somewhat different from that in section 820. Therefore, a cross-reference to the section 820 requirement has been added at DFARS 210.001(c)(2).

The notification requirement is added as a new DFARS 205.205-70. FAR 5.205 addresses special synopsis situations. It currently covers R&D advance notices, public-private competitions under OMB-Circular A-76, and other requirements that differ somewhat from the general synopsis requirement at FAR 5.201. Therefore, this appears to be the proper location for the bundling notification. However, because the new requirement applies only when using DoD funds, it is proposed as a new DFARS section 205.205-70, entitled “Notification of bundling of DoD contracts.” The basic publication requirement is established here, but it was not deemed necessary to repeat the limitations and exclusions at section 820(c) of the statute because nothing in the new language states or implies that the opposite is, or could be, the case.

This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

DoD does not expect that this interim rule will 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 does not impose any additional requirements on small businesses. In fact, availability of the notice of potential bundling may enable small businesses to compete for more work of which the firms might otherwise have been unaware. Prior to enactment of this statute, FAR 10.001(c)(2) required notification of incumbent small businesses only in circumstances where one of the requirements to be bundled is currently held by a small business. Such notification of incumbent small businesses is designed to afford them the opportunity to react prior to a final decision on bundling existing requirements, thus providing these small businesses with an opportunity to engage with Government requirements officials in the interest of retaining unbundled business (if bundled, the small business might not have the necessary capability to enable it to bid). However, the new provision enables any small businesses, whether or not an incumbent contractor, to become aware of a potential bundled opportunity, generally 30 days prior to the release of the solicitation. This broader notification requirement will provide a much wider segment of the small-business community awareness of upcoming business opportunities and then to either (1) submit a proposal for the bundled procurement or (2) interact with the requiring agency to request unbundling before the solicitation is finalized. Because of the potential for positive impact on small businesses, an Initial Regulatory Flexibility Analysis has been performed and is summarized above.

DoD invites comments from small business concerns and other interested parties on the expected impact of this rule on small entities.

DoD 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 such comments separately and should cite 5 U.S.C. 610 (DFARS Case 2009-D033) in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the interim rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. chapter 35, et seq.

D. Determination To Issue an Interim Rule

A determination has been made under the authority of the Secretary of Defense (DoD) that urgent and compelling circumstances exist to promulgate this interim rule without prior opportunity for public comments pursuant to 41 U.S.C. 418b and FAR 1.501-3(b). This action is necessary because section 820 of the National Defense Authorization Act for Fiscal Year 2010 became effective upon enactment, October 28, 2009. The rule implements section 820's requirement for contracting officers to publish a notification on FedBizOpps.gov at least 30 days prior to the release of a solicitation for a bundled acquisition. It is imperative that DoD contracting officers be made aware of this requirement as quickly as possible so that small businesses may have the benefit of the procurement planning information and the agency can comply with the statutory requirement. DoD 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 205 and 210

• Government procurement

Ynette R. Shelkin,

Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 205 and 210 are amended as follows:

1. The authority citation for 48 CFR parts 205 and 210 continues to read as follows:

Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

PART 205—PUBLICIZING CONTRACT ACTIONS

2. Section 205.205 is added to read as follows:

205.205

Special situations.

205.205-70

Notification of bundling of DoD contracts.

(a) When a proposed acquisition is funded entirely using DoD funds and potentially involves bundling, the contracting officer shall, at least 30 days prior to the release of a solicitation or 30 days prior to placing an order without a solicitation, publish in FedBizOpps.gov (or any successor site) a notification of the intent to bundle the requirement. In addition, if the agency has determined that measurably substantial benefits are expected to be derived as a result of bundling, the notification shall include a brief description of those benefits (see FAR 7.107).

(b) This requirement is in addition to the notification requirements at FAR 10.001(c)(2)(i) and (ii).

PART 210—MARKET RESEARCH

3. Paragraph (c)(2) is added to section 210.001 to read as follows:

210.001

Policy.

* * * * *

(c)(2) In addition to the notification requirements at FAR 10.001(c)(2)(i) and (ii), see 205.205-70 for the bundling notification publication requirement.