2011-7369. Federal Acquisition Regulation; Clarification of Standard Form 26-Award/Contract

AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Final rule.

SUMMARY:

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to include clarifications to Standard Form (SF) 26, Award/Contract. This revised form includes changes above blocks 17 and 18 and in block 18 to clarify that block 18 should not be used when awarding a negotiated procurement and should only be checked when awarding a sealed bid contract.

DATES:

Effective Date: May 2, 2011.

FOR FURTHER INFORMATION CONTACT:

Mr. Michael O. Jackson, Procurement Analyst, at [phone] for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone]. Please cite FAC 2005-51, FAR Case 2009-029.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA published a proposed rule in the Federal Register at 75 FR 54560 on September 8, 2010, to clarify the use of blocks 17 and 18 of the Standard Form (SF) 26, Award/Contract.

FAR 53.214(a) prescribes the SF 26 for use in contracting for supplies and services by sealed bidding (except for construction and architect-engineer services). The SF 26 is used to award sealed bid contracts after obtaining bids using a SF 33, Solicitation, Offer, and Award. FAR 14.408-1(d)(1) specifies that, if an offer made using a SF 33 leads to further changes, the resulting contract must be prepared as a bilateral document using the SF 26. Agencies identified instances in which contracting officers mistakenly checked block 18 when awarding negotiated, not sealed bid contracts, which created the potential for disputes between the agency and contractors. The clarifications provided on the form for when to use blocks 17 and 18 should eliminate this issue.

The changes will not prevent contracting officers from using block 17 of the SF 26 to award negotiated procurements; it will clarify to contracting officers the proper use of block 17 and block 18 and prohibit the use of block 18 of the SF 26 when awarding negotiated procurements. This final rule clarifies the use of block 18 on the SF 26, Award/Contract, and references the new form at FAR 53.214(a) and 53.215-1(a).

No respondents submitted comments on the proposed rule.

II. Executive Order 12866 and 13563

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.

In accordance with Executive Order 13563, Improving Regulation and Regulatory Review, dated January 18, 2011, DoD, GSA, and NASA determined that this rule is not excessively burdensome to the public, and is consistent with FAR drafting conventions.

III. Regulatory Flexibility Act

The Department of Defense, the General Services Administration, and the National Aeronautics and Space Administration certify that this final rule will not 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 it is solely a clarification for the benefit of Government contracting officers and does not make any substantive changes to current policy.

IV. Paperwork Reduction Act

The final 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 53

• Government procurement

Dated: March 24, 2011.

Millisa Gary,

Acting Director, Office of Governmentwide Acquisition Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR part 53 as set forth below:

PART 53—FORMS

1. The authority citation for 48 CFR part 53 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).

53.214

[Amended]

2. Amend section 53.214 by removing from paragraph (a) “ SF 26 (APR 2008)” and adding “SF 26 (Rev. 5/2011)” in its place.

53.215-1

[Amended]

3. Amend section 53.215-1 by removing from paragraph (a) “ SF 26 (APR 2008)” and adding “SF 26 (Rev. 5/2011)” in its place.

4. Revise section 53.301-26 to read as follows:

53.301-26

Award/Contract.