80 FR 31561 - Federal Acquisition Regulation; Consolidation and Bundling of Contract Requirements

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 80, Issue 106 (June 3, 2015)

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement sections of the Small Business Jobs Act of 2010 and regulatory changes made by the Small Business Administration, which provide for a Governmentwide policy on the consolidation and bundling of contract requirements.

[Federal Register Volume 80, Number 106 (Wednesday, June 3, 2015)]
[Proposed Rules]
[Pages 31561-31567]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-13421]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 5, 7, 8, 10, 12, 15, 16, 19, and 52

[FAR Case 2014-015; Docket No. 2014-0015; Sequence No. 1]
RIN 9000-AM92


Federal Acquisition Regulation; Consolidation and Bundling of 
Contract Requirements

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 sections of the Small 
Business Jobs Act of 2010 and regulatory changes made by the Small 
Business Administration, which provide for a Governmentwide policy on 
the consolidation and bundling of contract requirements.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addresses shown below on or before 
August 3, 2015 to be considered in the formation of the final rule.

ADDRESSES: Submit comments in response to FAR Case 2014-015 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2014-015''. Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2014-015.'' Follow the instructions provided at the ``Comment 
Now'' screen. Please include your name, company name (if any), and 
``FAR Case 2014-015'' on your attached document.
     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 2014-
015, 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.

[[Page 31562]]


FOR FURTHER INFORMATION CONTACT: Ms. Mahruba Uddowla, Procurement 
Analyst, at 703-605-2868, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2014-015.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement 
regulatory changes made by the Small Business Administration (SBA) in 
its final rule which was published in the Federal Register at 78 FR 
61113 on October 2, 2013, concerning contract consolidation and 
bundling. SBA's final rule implements the statutory requirements set 
forth at sections 1312 and 1313 of the Small Business Jobs Act of 2010 
(Jobs Act) (Pub. L. 111-240). This proposed rule will encompass the 
acquisition of commercial items, including commercially available off-
the-shelf (COTS) items.
    Section 1312 of the Jobs Act amends the Small Business Act at 15 
U.S.C. 644(q) to require Federal agencies to include in each 
solicitation for any multiple-award contract above the substantial 
bundling threshold of the Federal agency a provision soliciting bids 
from any responsible source, including responsible small business 
teaming arrangements or joint ventures of small business concerns. 
Section 1312 requires the FAR be amended to establish a Governmentwide 
policy regarding contract bundling, including regarding the 
solicitation of teaming and joint ventures, and to require agencies to 
publish said policy on their agency Web site. Section 1312 also 
requires the head of the Federal agency to publish on the Web site of 
the Federal agency a list and rationale for any bundled contract for 
which the Federal agency solicited bids or that was awarded by the 
agency.
    Section 1313 amends the Small Business Act at 15 U.S.C. 657q to 
define the term ``consolidation of contract requirements'' to mean the 
use of a solicitation to obtain offers for a single contract or a 
multiple-award contract to satisfy two or more requirements of the 
Federal agency for goods or services that have been provided to or 
performed for the Federal agency under two or more separate contracts, 
each of which was lower in cost than the total cost of the contract for 
which the offers are solicited. The National Defense Authorization Act 
(NDAA) for Fiscal Year (FY) 2013 (2013 NDAA), Public Law 112-239, 
section 1671 further amended the definition of consolidation to include 
construction requirements.
    Further, section 1313 prohibits the agency from carrying out an 
acquisition strategy that includes consolidation of contract 
requirements of the Federal agency with an estimated total value 
exceeding $2 million, unless the Senior Procurement Executive or Chief 
Acquisition Officer for the Federal agency, before carrying out the 
acquisition strategy--
     Conducts market research;
     Identifies any alternative contracting approach that would 
involve a lesser degree of consolidation of contract requirements;
     Makes a written determination that the consolidation of 
contract requirements is necessary and justified;
     Identifies any negative impact by the acquisition strategy 
on contracting with small business concerns; and
     Ensures that steps will be taken to include small business 
concerns in the acquisition strategy.

II. Discussion and Analysis

    Amendments to the FAR are proposed by this rule. The proposed 
changes are summarized in the following paragraphs.
    A. FAR Subpart 2.1, Definitions. This subpart is amended to revise 
the definition of ``bundling'' for clarity, incorporating the 
definition of ``bundled contract'', and to add a new definition for 
``consolidation, consolidation of contract requirements, consolidated 
contract or consolidated requirement''. In keeping with SBA's final 
rule and section 1671 of the NDAA for FY 2013, Public Law 112-239, the 
latter definition also encompasses the consolidation of construction 
requirements. This subpart is also amended to add a definition for 
``small business teaming arrangement''.
    B. FAR Subpart 5.2, Synopses of Proposed Contract Actions. A 
conforming cross-reference has been added at FAR 5.205(g).
    C. FAR Subpart 7.1, Acquisition Plans.
     FAR 7.103--This section is amended to clarify that 
agencies are to ensure that unnecessary and unjustified consolidation 
is avoided.
     FAR 7.104--This section is amended to remove the 
substantial bundling thresholds at FAR 7.104. The substantial bundling 
thresholds are relocated to the proposed new section FAR 7.107-4, 
Substantial Bundling, for clarity and consistency with the new proposed 
structure of FAR 7.107. An additional revision was made to clarify that 
small business is to be a discipline that is represented in the 
acquisition planning team.
     FAR 7.105--This section is amended by adding a reference 
to the statutory authority for limiting the use of acquisition 
strategies involving the consolidation of contract requirements.
     FAR 7.107--This section is amended by revising the title 
of the section and adding the statutory authority for the consolidation 
of contract requirements. This section also proposes to clarify that if 
a requirement is considered both consolidated and bundled, the agency 
must follow the guidance regarding bundling. In addition, this section 
is amended by restructuring FAR 7.107 to add proposed subsections FAR 
7.707-1, General, FAR 7.107-2, Consolidation of contract requirements, 
FAR 7.107-3 Bundling, FAR 7.107-4 Substantial Bundling, FAR 7.107-5 
Notifications, and 7.107-6 Solicitation provision. The proposed 
revisions are as follows:
    [cir] FAR 7.107-1--General. This proposed new section provides 
information relevant to both consolidation and bundling, such as 
evaluation of benefits, substantial benefits, and applicability.
    [cir] FAR 7.107-2--Consolidation of contract requirements. This 
proposed new section is added to clarify that an agency may not conduct 
an acquisition exceeding $2 million that is a consolidation of contract 
requirements unless the agency's Senior Procurement Executive or Chief 
Acquisition Officer: (1) Justifies the consolidation by showing that 
the benefits of the consolidated acquisition substantially exceed the 
benefits of each possible alternative approach that would involve a 
lesser degree of consolidation and (2) identify any negative impact by 
the acquisition strategy on contracting with small business concerns.
    [cir] FAR 7.107-3--Bundling. This proposed new section clarifies 
language regarding the requirements a contracting officer must adhere 
to prior to conducting an acquisition strategy that involves the 
bundling of contract requirements.
    [cir] FAR 7.107-4--Substantial Bundling. This proposed new section 
includes the substantial bundling thresholds relocated from FAR 
7.104(d) and existing documentation requirements.
    [cir] FAR 7.107-5--Notifications. This proposed new section is 
added to require Federal agencies to: (1) Notify current small business 
contractors of an agency's intent to bundle a contract requirement that 
was not previously bundled at least 30 days prior to the issuance of 
the solicitation; (2) provide public notification of an agency's intent 
to bundle by publishing on the agency's

[[Page 31563]]

Web site a list and rationale for any bundled requirement for which the 
agency solicited offers or issued an award; (3) require the agency to 
notify SBA of a follow-on bundled or consolidated contract requirement; 
and (4) publish the Governmentwide policy regarding contract bundling, 
including regarding the solicitation of teaming and joint ventures, on 
their agency Web site.
    [cir] FAR 7.107-6--Solicitation Provision. This proposed new 
section is added to prescribe a new provision 52.207-XX ``Solicitation 
of Offers from Small Business Concerns and Small Business Teaming 
Arrangements or Joint Ventures (Multiple-Award Contracts)'', in 
solicitations for multiple-award contracts that are estimated to be 
above the agency's substantial bundling threshold.
    D. FAR Subpart 8.4, Federal Supply Schedules. Proposed revisions to 
FAR 8.404(c)(2) are necessary to apply consolidation requirements to 
orders.
    E. FAR Part 10, Market Research. Proposed revisions to FAR 10.001 
are necessary to add references to the statutory authority for the 
consolidation of contract requirements.
    F. FAR Subpart 12.3, Solicitation Provisions and Contract Clauses 
for the Acquisition of Commercial Items. Proposed revisions to FAR 
12.301(d)(4) are necessary to add a reference to the new provision for 
multiple-award contracts over the substantial bundling thresholds at 
FAR 52.207-XX, Solicitation of Offers from Small Business Concerns and 
Small Business Teaming Arrangements or Joint Ventures (Multiple-Award 
Contracts).
    G. FAR Subpart 15.3, Source Selection.
     FAR 15.304, Evaluation factors and significant subfactors. 
This section is amended by adding references to the consolidation of 
contract requirements.
    H. FAR Subpart 16.5, Indefinite-Delivery Contracts.
     FAR 16.505, Ordering. This section is amended to apply 
consolidation requirements to orders.
     FAR 16.506, Solicitation provisions and contract clauses. 
This section is amended by adding a cross-reference to the prescription 
in FAR Subpart 7.1 for a new provision ``Solicitation of Offers from 
Small Business Concerns and Small Business Teaming Arrangements or 
Joint Ventures (Multiple-Award Contracts)''.
    I. Subpart 19.2, Policies.
     FAR 19.201 General policy and 19.202-1 Encouraging small 
business participation in acquisitions. These sections are amended by 
adding references to the consolidation of contract requirements.
    J. FAR Subpart 52.2, Text of Provisions and Clauses.
     FAR 52.207-XX, Solicitation of Offers from Small Business 
Concerns and Small Business Teaming Arrangements or Joint Ventures 
(Multiple-Award Contracts). This section is amended to include this 
provision in solicitations for multiple-award contracts when the 
estimated contract value is expected to exceed the agency's substantial 
bundling threshold. The agency shall consider offers from any 
responsible source, including responsible small business concerns and 
teaming arrangements or joint ventures of small business concerns.

III. 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 not a significant regulatory action and, therefore was not 
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.

IV. Regulatory Flexibility Act

    The change may 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. The Initial Regulatory 
Flexibility Analysis (IRFA) is summarized as follows:

    DoD, GSA, and NASA are proposing to amend the FAR to provide 
uniform guidance consistent with SBA's final rule which was 
published in the Federal Register at 78 FR 61113 on October 2, 2013, 
which implements sections 1312 and 1313 of the Small Business Jobs 
Act of 2010, Public Law 111-240.
    The objective of this proposed rule is to alleviate the adverse 
effects of contract bundling and consolidation on small business 
concerns competing for Federal contracts. This rule provides a 
balance between the benefits of bundling and consolidation and the 
obstacles they create for small businesses. The authorizing 
legislation for this action is sections 1312 and 1313 of the Small 
Business Jobs Act of 2010, Public Law 111-240, and section 1671 of 
the NDAA for FY 2013 Public Law 112-239. Section 1671 in conjunction 
with section 1313 now provides for a Governmentwide requirement and 
threshold for consolidated contracts.
    This rule may have a positive economic impact on any small 
business entity that wishes to participate in the Federal 
procurement arena. Analysis of the System for Award Management (SAM) 
database indicates there are over 351,203 small business registrants 
that can potentially benefit from the implementation of this rule.
    This rule does not impose any new reporting, recordkeeping or 
other compliance requirements. The rule does not duplicate, overlap, 
or conflict with any other Federal rules.

    The Regulatory Secretariat has submitted a copy of the IRFA to the 
Chief Counsel for Advocacy of the Small Business Administration. A copy 
of the IRFA may be obtained from the Regulatory Secretariat. 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 (FAR Case 2014-015), 
in correspondence.

V. Paperwork Reduction Act

    The 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 Parts 2, 5, 7, 8, 10, 12, 15, 16, 19, 
and 52

    Government procurement.

    Dated: May 28, 2015.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 5, 
7, 8, 10, 12, 15, 16, 19, and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 2, 5, 7, 8, 10, 12, 15, 16, 
19, and 52 continues to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 2--DEFINITIONS OF WORDS AND TERMS

0
2. Amend section 2.101 in paragraph (b) by--
0
a. Removing the definition ``Bundled contract'';
0
b. Revising the definition ``Bundling'';
0
c. Adding, in alphabetical order, the definitions ``Consolidation,

[[Page 31564]]

consolidation of contract requirements, consolidated contract, or 
consolidated requirement''; and ``Small Business Teaming Arrangement''.
    The revised and added text reads as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Bundling or bundled contract--
    (1) Means the consolidating or combining of two or more 
requirements for supplies or services, previously provided or performed 
under separate smaller contracts, into a solicitation for a single 
contract, a multiple-award contract, a task order or delivery order 
that is likely to be unsuitable for award to a small business concern 
(but may be suitable for award to a small business with a Small 
Business Teaming Arrangement) due to--
    (i) The diversity, size, or specialized nature of the elements of 
the performance specified;
    (ii) The aggregate dollar value of the anticipated award;
    (iii) The geographical dispersion of the contract performance 
sites; or
    (iv) Any combination of the factors described in paragraphs (1)(i), 
(ii), and (iii) of this definition.
    (2) ``Separate smaller contract'' as used in this definition, means 
a contract that has been performed by one or more small business 
concerns or that was suitable for award to one or more small business 
concerns.
    (3) This definition does not apply to a contract that will be 
awarded and performed entirely outside of the United States.
    (4) (See 7.107-4 for a description of substantial bundling.)
* * * * *
    Consolidation, consolidation of contract requirements, consolidated 
contract, or consolidated requirement--
    (1) Means a solicitation for a single contract, a multiple-award 
contract, a task order, or a delivery order to satisfy--
    (i) Two or more requirements of the Federal agency for supplies or 
services that have been provided to or performed for the Federal agency 
under two or more separate contracts, each of which was lower in cost 
than the total cost of the contract for which offers are solicited; or
    (ii) Requirements of the Federal agency for construction projects 
to be performed at two or more discrete sites.
    (2) Separate contract as used in this definition, means a contract 
that has been performed by any business, including small and other than 
small business concerns.
* * * * *
    Small Business Teaming Arrangement--
    (1) Means an arrangement where--
    (i) Two or more small business concerns have formed a joint 
venture; or
    (ii) A potential small business prime contractor (``offeror'') 
agrees with one or more other small business concerns to have them act 
as its subcontractors under a specified Government contract. A Small 
Business Teaming Arrangement between the offeror and its small business 
subcontractor(s) exists through a written agreement between the parties 
that--
    (A) Is specifically referred to as a Small Business Teaming 
Arrangement or Small Business Teaming Agreement; and
    (B) Sets forth the different responsibilities, roles, and 
percentages (or other allocations) of work as it relates to the 
acquisition; and
    (2) May include two business concerns in a mentor-protege 
relationship so long as both the mentor and the protege are small or 
the protege is small and the concerns have received an exception to 
affiliation pursuant to 13 CFR 121.103(h)(3)(ii) or (iii).
    (3) See 13 CFR 121.103(b)(9) regarding the exception to affiliation 
for offers received from Small Business Teaming Arrangements.
* * * * *

PART 5--PUBLICIZING CONTRACT ACTIONS

0
3. Amend section 5.205 by adding paragraph (g) to read as follows:


5.205  Special situations.

* * * * *
    (g) Notification to public of rationale for bundled requirement. 
See 7.107-5(b)(2) with regard to notification to FedBizOpps.gov before 
issuance of the solicitation of any bundled requirement.

PART 7--ACQUISITION PLANNING

0
4. Amend section 7.103 by revising paragraph (u)(2) to read as follows:


7.103  Agency-head responsibilities.

* * * * *
    (u) * * *
    (2) Avoid unnecessary and unjustified consolidation or bundling of 
contract requirements that precludes small business participation as 
prime contractors (see 7.107) (15 U.S.C. 631(j) and 15 U.S.C. 657(q)).
* * * * *
0
5. Amend section 7.104 by removing from paragraph (a) ``contracting,'' 
and adding ``contracting, small business,'' in its place; and revising 
paragraph (d) to read as follows:


7.104  General procedures.

* * * * *
    (d) The planner shall coordinate the acquisition plan or strategy 
with the cognizant small business specialist when the strategy 
contemplates an acquisition meeting the dollar amounts for substantial 
bundling unless the contract or task order or delivery order is 
entirely reserved or set-aside for small business under part 19. The 
small business specialist shall notify the agency Office of Small and 
Disadvantaged Business Utilization or the Office of Small Business 
Programs if the strategy involves consolidation or bundling that is 
unnecessary, unjustified, or not identified as consolidated or bundled 
by the agency (see 7.107 for further guidance regarding consolidation 
and bundling).
* * * * *
0
6. Amend section 7.105 by revising paragraph (b)(1) to read as follows:


7.105  Contents of written acquisition plans.

* * * * *
    (b) Plan of action. (1) Sources. (i) Indicate the prospective 
sources of supplies or services that can meet the need.
    (ii) Consider required sources of supplies or services (see part 8) 
and sources identifiable through databases including the Governmentwide 
database of contracts and other procurement instruments intended for 
use by multiple agencies available at https://www.contractdirectory.gov/contractdirectory/.
    (iii) Include consideration of small business, veteran-owned small 
business, service-disabled veteran-owned small business, HUBZone small 
business, small disadvantaged business, and women-owned small business 
concerns (see part 19).
    (iv) Consider the impact of any consolidation or bundling that 
might affect participation of small businesses in the acquisition (see 
7.107) (15 U.S.C. 644(e) and 15 U.S.C. 657(q)). When the proposed 
acquisition strategy involves the consolidation or bundling of contract 
requirements, identify the incumbent contractors and contracts affected 
by the consolidation or bundling.
    (v) Address the extent and results of the market research and 
indicate their impact on the various elements of the plan (see part 
10).
* * * * *

[[Page 31565]]

0
7. Revise section 7.107 to read as follows:


7.107  Additional requirements for acquisitions involving 
consolidation, bundling, or substantial bundling.


7.107-1  General.

    (a) Consolidation and bundling of contract requirements may provide 
substantial benefits to the Government. However, because of the 
potential impact on small business participation, the agency shall 
conduct market research and any required analysis to determine whether 
consolidation is necessary and justified in accordance with 15 U.S.C. 
657(q) or if bundling is necessary and justified pursuant to 15 U.S.C. 
644(e)(2).
    (b) A consolidated or bundled requirement is necessary and 
justified if the benefits of the acquisition strategy substantially 
exceed the benefits of each of the possible alternative contracting 
approaches identified.
    (c) Such benefits may include--
    (1) Cost savings;
    (2) Price reduction;
    (3) Quality improvements that will save time or improve or enhance 
performance or efficiency;
    (4) Reduction in acquisition cycle times, or
    (5) Better terms and conditions.
    (d) Benefits are substantial if individually, in combination, or in 
the aggregate the anticipated financial benefits are equivalent to--
    (1) Ten percent of the estimated contract or order value (including 
options) if the value is $94 million or less; or
    (2) Five percent of the estimated contract or order value 
(including options) or $9.4 million, whichever is greater, if the value 
exceeds $94 million.
    (e) Reduction of administrative or personnel costs alone is not 
sufficient justification for consolidation or bundling unless the cost 
savings are expected to be at least 10 percent of the estimated 
contract or order value (including options) of the consolidated or 
bundled requirements. For consolidated requirements, the Senior 
Procurement Executive or Chief Acquisition Officer must make a 
determination of the cost savings (15 U.S.C. 657(q)(c)(2)).
    (f) If the requirement is considered both consolidated and bundled, 
the agency shall follow the guidance regarding bundling in 7.107-3 and 
7.107-4).
    (g) The requirements of this section do not apply--
    (1) Except 7.107-4, if a cost comparison analysis will be performed 
in accordance with OMB Circular A-76; and
    (2) To orders against single-agency task-order contracts or 
delivery-order contracts, if the requirement was considered in 
determining that the consolidation or bundling of the underlying 
contract was necessary and justified.


7.107-2  Consolidation of contract requirements.

    (a) Before conducting an acquisition that is a consolidation of 
contract requirements with an estimated total dollar value exceeding $2 
million, the Senior Procurement Executive or Chief Acquisition Officer 
shall make a written determination that the consolidation of contract 
requirements is necessary and justified, after ensuring that--
    (1) Market research has been conducted;
    (2) Any alternative contracting approaches that would involve a 
lesser degree of consolidation of contract requirements have been 
identified;
    (3) The determination is coordinated with the agency's Office of 
Small Disadvantaged Business Utilization or the Office of Small 
Business Programs;
    (4) Any negative impact by the acquisition strategy on contracting 
with small business concerns has been identified; and
    (5) Steps are taken to include small business concerns in the 
acquisition strategy.
    (b) The Senior Procurement Executive or Chief Acquisition Officer 
may determine that the consolidation of contract requirements is 
necessary and justified if, as compared to the benefits that would be 
derived from the alternative contracting approaches identified under 
paragraph (a)(2) of this subsection, consolidation would derive 
substantial benefits (see 7.107-1(d)).
    (c) If a determination is made, the contracting officer shall 
include it in the acquisition strategy documentation and provide it to 
SBA upon request.


7.107-3  Bundling.

    (a) Before conducting an acquisition strategy that involves the 
bundling of contract requirements, the agency shall make a written 
determination that the bundling is necessary and justified. A bundled 
requirement is considered necessary and justified if the agency would 
obtain measurably substantial benefits as compared to meeting its 
agency's requirements through separate smaller contracts or orders.
    (b) The agency shall quantify the specific benefits identified 
through the use of market research and other techniques to explain how 
their impact would be measurably substantial (see 10.001(a)(2)(iv) and 
(a)(3)(vi)).
    (c) Without power of delegation, the service acquisition executive 
for the military departments, the component acquisition executive for 
the Defense Logistics Agency, the Under Secretary of Defense for 
Acquisition, Technology and Logistics for the defense agencies, or the 
Deputy Secretary or equivalent for the civilian agencies may determine 
that bundling is necessary and justified when--
    (1) The expected benefits do not meet the thresholds for a 
substantial benefit but are critical to the agency's mission success; 
and
    (2) The acquisition strategy provides for maximum practicable 
participation by small business concerns.
    (d) In assessing whether cost savings and/or price reduction would 
be achieved through bundling, the agency and SBA shall--
    (1) Compare the price that has been charged by small businesses for 
the work that they have performed; or
    (2) Where previous prices are not available, compare the price, 
based on market research, that could have been or could be charged by 
small businesses for the work not previously performed by other than a 
small business.
    (e) If a determination is made, the contracting officer shall 
include it in the acquisition strategy documentation and provide it to 
SBA upon request.


7.107-4  Substantial bundling.

    (a)(1) Substantial bundling is any bundling that results in a 
contract or order with an estimated value of--
    (i) $8 million or more for the Department of Defense;
    (ii) $6 million or more for the National Aeronautics and Space 
Administration, the General Services Administration, and the Department 
of Energy; or
    (iii) $2.5 million or more for all other agencies.
    (2) These thresholds apply to the cumulative estimated dollar value 
(including options) of--
    (i) Multiple-award contracts;
    (ii) Task orders or delivery orders issued against a GSA Schedule 
contract; or
    (iii) Task orders or delivery orders issued against a task-order or 
delivery-order contract awarded by another agency.
    (b) In addition to addressing the requirements for bundling (see 
7.107-3), when the proposed acquisition strategy involves substantial 
bundling, the agency shall document in its strategy--
    (1) The specific benefits anticipated to be derived from 
substantial bundling;

[[Page 31566]]

    (2) An assessment of the specific impediments to participation by 
small business concerns as contractors that result from substantial 
bundling;
    (3) Actions designed to maximize small business participation as 
contractors, including provisions that encourage small business 
teaming;
    (4) Actions designed to maximize small business participation as 
subcontractors (including suppliers) at any tier under the contract, or 
order, that may be awarded to meet the requirements;
    (5) The determination that the anticipated benefits of the proposed 
bundled contract or order justify its use; and
    (6) Alternative strategies that would reduce or minimize the scope 
of the bundling, and the rationale for not choosing those alternatives.


7.107-5  Notifications.

    (a) Notifications to current small business contractors of agency's 
intent to bundle.
    (1) The contracting officer shall notify each small business 
performing a contract that it intends to bundle the requirement with 
one or more other requirements at least 30 days prior to the issuance 
of the solicitation for the bundled requirement.
    (2) The notification shall provide the name, phone number and 
address of the applicable SBA procurement center representative (PCR), 
or if a PCR is not assigned to the procuring activity, the SBA Office 
of Government Contracting Area Office serving the area in which the 
buying activity is located (see subpart 19.4 regarding the duties and 
responsibilities of the SBA PCR).
    (3) This notification shall be documented in the contract file.
    (b) Notification to public of rationale for bundled requirement.
    (1) The agency shall publish on its Web site a list and rationale 
for any bundled requirement for which the agency solicited offers or 
issued an award. The notification shall be made within 30 days of the 
agency's data certification regarding the validity and verification of 
data entered in the Federal Procurement Data System to the Office of 
Federal Procurement Policy (see 4.604).
    (2) In addition, the agency is encouraged to provide to 
FedBizOpps.gov, before issuance of the solicitation, notification of 
the rationale for any bundled requirement (see 5.201).
    (c) Notification to SBA of follow-on bundled or consolidated 
requirements. For each follow-on bundled or consolidated contract (even 
if additional requirements have been added or some have been deleted), 
the contracting officer shall obtain from the requiring activity and 
notify the SBA PCR as soon as possible but no later than 30 days prior 
to issuance of the solicitation of--
    (1) The amount of savings and benefits achieved under the prior 
consolidation or bundling of contract requirements;
    (2) Whether such savings and benefits will continue to be realized 
if the contract remains consolidated or bundled; and
    (3) Whether such savings and benefits would be greater if the 
procurement requirements were divided into separate solicitations 
suitable for award to small business concerns.
    (d) Public notification of bundling policy. In accordance with 15 
U.S.C. 644(q)(2)(A)(ii), agencies shall publish the Governmentwide 
policy regarding contract bundling, including regarding the 
solicitation of teaming and joint ventures, on their agency Web site.


7.107-6  Solicitation provision.

    The contracting officer shall insert the provision at 52.207-XX, 
Solicitation of Offers from Small Business Concerns and Small Business 
Teaming Arrangements or Joint Ventures (Multiple-Award Contracts), in 
solicitations for multiple-award contracts above the substantial 
bundling threshold of the agency.

PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES

0
8. Amend section 8.404 by revising paragraph (c)(2) to read as follows:


8.404  Use of Federal Supply Schedules.

* * * * *
    (c) * * *
    (2) Shall comply with all FAR requirements for a consolidated or 
bundled contract when the task order or delivery order meets the 
definition at 2.101(b) of ``consolidation'' or ``bundling''; and
* * * * *

PART 10--MARKET RESEARCH

0
9. Amend section 10.001 by--
0
a. Removing from the introductory text of paragraph (a) ``Agencies 
must--'' and adding ``Agencies shall--'' in its place;
0
b. Revising paragraphs (a)(2)(iv) and (a)(2)(vi)(B);
0
c. Removing from the end of paragraph (a)(3)(v) ``efficiency; and'' and 
adding ``efficiency;'' in its place;
0
d. Redesignating paragraphs (a)(3)(vi) and (a)(3)(vii) as paragraphs 
(a)(3)(vii) and (a)(3)(viii), respectively;
0
e. Adding a new paragraph (a)(3)(vi);
0
f. Revising the newly designated paragraph (a)(3)(vii); and
0
g. Revising paragraph (c) to read as follows.


10.001  Policy.

    (a) * * *
    (2) * * *
    (iv) Before soliciting offers for acquisitions that could lead to a 
consolidated or bundled contract (15 U.S.C. 644(e)(2)(A) and 15 U.S.C. 
657q);
* * * * *
    (B) Disaster relief to include debris removal, distribution of 
supplies, reconstruction, and other disaster or emergency relief 
activities (see 26.205); and
    (3) * * *
    (vi) Determine whether consolidation is necessary and justified 
(see 7.107-2) (15 U.S.C. 657q);
    (vii) Determine whether bundling is necessary and justified (see 
7.107-3) (15 U.S.C. 644(e)(2)(A)); and
* * * * *
    (c) If an agency contemplates awarding a consolidated or bundled 
contract, the agency--
    (1) When performing market research, should consult with the agency 
small business specialist and the local Small Business Administration 
procurement center representative (PCR). If a PCR is not assigned, see 
19.402(a); and
    (2) Shall notify any affected incumbent small business concerns of 
the Government's intention to bundle the requirement and how small 
business concerns may contact the appropriate Small Business 
Administration procurement center representative (see 7.107-5(a).
* * * * *

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
10. Amend section 12.301 by redesignating paragraphs (d)(3) through 
(d)(6) as paragraphs (d)(4) through (d)(7), respectively; and adding a 
new paragraph (d)(3) to read as follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (d) * * *
    (3) Insert the provision at 52.207-XX, Solicitation of Offers from 
Small Business Concerns and Small Business Teaming Arrangements or 
Joint Ventures (Multiple-Award Contracts), as prescribed at 7.107-6.
* * * * *

[[Page 31567]]

PART 15--CONTRACTING BY NEGOTIATION

0
11. Amend section 15.304 by revising paragraphs (c)(3)(ii) and (c)(4) 
to read as follows:


15.304  Evaluation factors and significant subfactors.

* * * * *
    (c) * * *
    (3) * * *
    (ii) For solicitations involving the consolidation of contract 
requirements or bundling that offer a significant opportunity for 
subcontracting, the contracting officer shall include a factor to 
evaluate past performance indicating the extent to which the offeror 
attained applicable goals for small business participation under 
contracts that required subcontracting plans (15 U.S.C. 
637(d)(4)(G)(ii)).
* * * * *
    (4) For solicitations involving the consolidation of contract 
requirements or bundling that offer a significant opportunity for 
subcontracting, the contracting officer shall include proposed small 
business subcontracting participation in the subcontracting plan as an 
evaluation factor (15 U.S.C. 637(d)(4)(G)(i)).
* * * * *

PART 16--TYPES OF CONTRACTS

0
12. Amend section 16.505 by revising paragraph (a)(8)(iii) to read as 
follows:


16.505  Ordering.

    (a) * * *
    (8) * * *
    (iii) Shall comply with all FAR requirements for a consolidated or 
bundled contract when the task order or delivery order meets the 
definition at 2.101(b) of ``consolidation'' or ``bundling''.
* * * * *
0
13. Amend section 16.506 by adding paragraph (i) to read as follows:


16.506  Solicitation provisions and contract clauses.

* * * * *
    (i) See 7.107-6 for use of 52.207-XX, Solicitation of Offers from 
Small Business Concerns and Small Business Teaming Arrangement or Joint 
Ventures (Multiple-Award Contracts) in solicitations for multiple-award 
contracts above the substantial bundling threshold of the agency.

PART 19--SMALL BUSINESS PROGRAMS

0
14. Amend section 19.201 by revising paragraphs (c)(5)(i), (c)(11)(ii), 
and (c)(11)(iii) to read as follows:


19.201  General policy.

* * * * *
    (c) * * *
    (5) * * *
    (i) Identify proposed solicitations that involve significant 
bundling and work with the agency acquisition officials and SBA to 
revise the procurement strategies for such proposed solicitations to 
increase the probability of participation by small businesses as prime 
contractors through Small Business Teaming Arrangements;
* * * * *
    (11) * * *
    (ii) Adequacy of consolidated or bundled contract documentation and 
justifications; and
    (iii) Actions taken to mitigate the effects of necessary and 
justified consolidation of contract requirements or contract bundling 
on small businesses.
* * * * *
0
15. Amend section 19.202-1 by revising paragraphs (e)(1)(iii), (e)(2), 
(e)(2)(v), (e)(3), and (e)(4) to read as follows:


19.202-1  Encouraging small business participation in acquisitions.

* * * * *
    (e)(1) * * *
    (iii) The proposed acquisition is for a consolidated or bundled 
requirement. (See 7.107-5(a) for mandatory 30-day notice requirement to 
incumbent small business concerns.) The contracting officer shall 
provide all information relative to the justification for the 
consolidation of contract requirements or contract bundling, including 
the acquisition plan or strategy, and if the acquisition involves 
substantial bundling, the information identified in 7.107-4. The 
contracting officer shall also provide the same information to the 
agency Office of Small and Disadvantaged Business Utilization.
    (2) Provide a statement explaining why the--
* * * * *
    (v) The consolidation of contract requirements or bundling is 
necessary and justified.
    (3) Process the 30-day notification concurrently with other 
processing steps required prior to the issuance of the solicitation.
    (4) If the contracting officer rejects the SBA procurement center 
representative's recommendation made in accordance with 19.402(c)(2), 
document the basis for the rejection and notify the SBA procurement 
center representative in accordance with 19.505.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
16. Add section 52.207-XX to read as follows:


52.207-XX  Solicitation of Offers from Small Business Concerns and 
Small Business Teaming Arrangements or Joint Ventures (Multiple-Award 
Contracts).

    As prescribed in 7.107-6, insert the following provision:

Solicitation of Offers From Small Business Concerns and Small Business 
Teaming Arrangements or Joint Ventures (Multiple-Award Contracts) 
(Date)

    (a) Definition. Small Business Teaming Arrangement, as used in 
this provision--
    (1) Means an arrangement where--
    (i) Two or more small business concerns have formed a joint 
venture; or
    (ii) A potential small business prime contractor (``offeror'') 
agrees with one or more other small business concerns to have them 
act as its subcontractors under a specified Government contract. A 
Small Business Teaming Arrangement between the offeror and its small 
business subcontractor(s) exists through a written agreement between 
the parties that--
    (A) Is specifically referred to as a ``Small Business Teaming 
Arrangement'' or ``Small Business Teaming Agreement''; and
    (B) Sets forth the different responsibilities, roles, and 
percentages (or other allocations) of work as it relates to the 
acquisition; and
    (2) May include two business concerns in a mentor-protege 
relationship so long as both the mentor and the protege are small or 
the protege is small and the concerns have received an exception to 
affiliation pursuant to 13 CFR 121.103(h)(3)(ii) or (iii).
    (3) See 13 CFR 121.103(b)(9) regarding the exception to 
affiliation for offers received from Small Business Teaming 
Arrangements.
    (b) The Government is soliciting and will consider offers from 
any responsible source, including responsible small business 
concerns and offers from Small Business Teaming Arrangements or 
joint ventures of small business concerns.


(End of provision)

[FR Doc. 2015-13421 Filed 6-2-15; 8:45 am]
 BILLING CODE 6820-EP-P