E8-1681. Federal Acquisition Regulation; FAR Case 2007-008, Limiting Length of Noncompetitive Contracts in “Unusual and Compelling Urgency” Circumstances

AGENCIES:

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

ACTION:

Proposed rule.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to limit the length of contracts awarded noncompetitively under unusual and compelling urgency circumstances to the minimum contract period necessary to meet the requirements, and no longer than one year, unless approved by the head of the contracting activity.

DATES:

Interested parties should submit comments in writing on or before March 31, 2008 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FAR Case 2007-008 by any of the following methods:

• Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2007-008” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2007-008. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “FAR Case 2007-008” on your attached document.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VPR), 1800 F Street, NW., Room 4035, ATTN: Diedra Wingate, Washington, DC 20405.

Instructions: Please submit comments only and cite FAR Case 2007-008 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. Ernest Woodson, Procurement Analyst, at [phone], for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone]. Please cite FAR Case 2007-008.

SUPPLEMENTARY INFORMATION:

A. Background

The Administrator of the Office of Federal Procurement Policy (OFPP) issued a memorandum on enhancing competition in Federal acquisition, dated May 31, 2007, to executive agency chief acquisition officers and senior procurement executives. One of the initiatives identified by the Administrator for strengthening competitive policies was limiting the length of contracts awarded noncompetitively under the authority in FAR Part 6.302-2, unusual and compelling urgency, to the minimum period necessary for meeting the requirements, and no longer than one year unless approved by the head of the contracting activity. This rule implements a contract period limitation under FAR Part 6.302-2.

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

The Councils 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 addresses internal agency procedures and will benefit small entities by encouraging competition after a one year contract period, except when a longer contract period is properly approved. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR Part 6.303-2 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 2007-008), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act (Pub. L. 96-511) does not apply because the changes to the FAR do not contain any information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 6

• Government procurement

Dated: January 15, 2008.

Al Matera,

Director, Office of Acquisition Policy.

Therefore, DoD, GSA, and NASA propose amending 48 CFR part 6 as set forth below:

PART 6—COMPETITION REQUIREMENTS

1. The authority citation for 48 CFR part 6 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). 2. Amend section 6.302-2 by adding paragraph (d) to read as follows:

6.302-2

Unusual and compelling urgency.

(d) Period of Performance. The total period of performance of a contract awarded using this authority shall not exceed the minimum period necessary for meeting the unusual and compelling urgency requirements, but no longer than one year unless a longer period of performance is approved by the head of the contracting activity. Approval of a longer contract period of performance is in addition to the justification approval of requirements in 6.304.