83 FR 19144 - Federal Acquisition Regulation: Federal Acquisition Circular 2005-98; Introduction
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION Federal Register Volume 83, Issue 84 (May 1, 2018)
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
Federal Register Volume 83, Issue 84 (May 1, 2018)
| Page Range | 19144-19145 | |
| FR Document | 2018-09162 |
[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)] [Rules and Regulations] [Pages 19144-19145] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2018-09162] [[Page 19143]] Vol. 83 Tuesday, No. 84 May 1, 2018 Part II Department of Defense General Services Administration National Aeronautics and Space Administration ----------------------------------------------------------------------- 48 CFR Chapter 1 Federal Acquisition Regulation: Federal Acquisition Circular 2005-98; Introduction; Task- and Delivery-Order Protests; Duties of Office of Small and Disadvantaged Business Utilization; Liquidated Damages Rate Adjustment; Audit of Settlement Proposals; and Federal Acquisition Circular 2005-98; Small Entity Compliance Guide; Final Rules Federal Register / Vol. 83 , No. 84 / Tuesday, May 1, 2018 / Rules and Regulations [[Page 19144]] ----------------------------------------------------------------------- DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Chapter 1 [Docket No. FAR 2018-0001, Sequence No. 2] Federal Acquisition Regulation: Federal Acquisition Circular 2005-98; Introduction AGENCY: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Summary presentation of final rules. ----------------------------------------------------------------------- SUMMARY: This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) in this Federal Acquisition Circular (FAC) 2005-98. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available via the internet at http://www.regulations.gov. DATES: For effective dates see the separate documents, which follow. FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the table below in relation to the FAR case. Please cite FAC 2005-98 and the specific FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Rules Listed in FAC 2005-98 ---------------------------------------------------------------------------------------------------------------- Item Subject FAR case Analyst ---------------------------------------------------------------------------------------------------------------- I....................................... Task- and Delivery-Order 2017-007 Gray. Protests. II...................................... Duties of Office of Small 2017-008 Fry. and Disadvantaged Business Utilization. III..................................... Liquidated Damages Rate 2017-004 Delgado. Adjustment. IV...................................... Audit of Settlement 2015-039 Delgado. Proposals. ---------------------------------------------------------------------------------------------------------------- SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments made by these rules, refer to the specific item numbers and subjects set forth in the documents following these item summaries. FAC 2005-98 amends the FAR as follows: Item I--Task- and Delivery-Order Protests (FAR Case 2017-007) This final rule amends the FAR to implement section 835 of the National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2017 (Pub. L. 114-328). Section 835 amends 10 U.S.C. 2304c(e)(1)(B) to raise the threshold for task- and delivery-order protests from $10 million to $25 million (applicable to DoD, NASA, and the Coast Guard). The section also amends 41 U.S.C. 4106(f) to repeal the sunset date, which was also previously repealed by the GAO Civilian Task and Delivery Order Protest Authority Act of 2016 (Pub. L. 114-260). There will be an unquantifiable impact on offerors (including small businesses) that lose the right to protest awards of task or delivery orders valued between $10 million and $25 million, but the impact is expected to be de minimis, because there are very few protests of procurements in that dollar range. Item II--Duties of Office of Small and Disadvantaged Business Utilization (FAR Case 2017-008) This final rule amends the FAR to reflect additional duties for agencies' Office of Small and Disadvantaged Business Utilization, or for DoD's Office of Small Business Programs, which were added to section 15(k) of the Small Business Act by the NDAA for FY 2017. This rule only provides information regarding the internal operating procedures of the Government. Item III--Liquidated Damages Rate Adjustment (FAR Case 2017-004) This final rule amends the FAR to adjust for inflation the rate of liquidated damages assessed or enforced by Department of Labor (DOL) regulations for violations of the overtime provisions of the Contract Work Hours and Safety Standards Act. The FAR rule implements DOL's interim final rule published in the Federal Register at 81 FR 43430 on July 1, 2016, DOL's final rule published in the Federal Register at 82 FR 5373 on January 18, 2017, and subsequent adjustments for inflation pursuant to the Federal Civil Penalties Inflation Adjustment Act of 1990, as amended by the Federal Civil Penalties Inflation Adjustment Act Improvements Act of 2015 (section 701 of Pub. L. 114-74)(28 U.S.C. 2461 Note). There is no significant impact on small entities imposed by the FAR rule. Item IV--Audit of Settlement Proposals (FAR Case 2015-039) This final rule amends the FAR to raise the dollar threshold requirement for the audit of prime contract settlement proposals and subcontract settlements from $100,000 to $750,000 to align with the threshold in FAR 15.403-4(a)(1) for obtaining certified cost or pricing data. The requirements in the rule will not have a significant economic impact on a substantial number of small entities. Since the rule raises the audit threshold, even fewer small businesses will be subject to audits of their termination settlement proposals resulting in a reduction of time spent to complete termination settlements. Dated: April 25, 2018. William F. Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Federal Acquisition Circular (FAC) 2005-98 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005-98 is effective May 1, 2018 except for items I, II, III, and IV, which are effective May 31, 2018. [[Page 19145]] Dated: April 24, 2018. Shay D. Assad, Director, Defense Pricing/Defense Procurement and Acquisition Policy. Dated: April 23, 2018. Jeffrey A. Koses, Senior Procurement Executive/Deputy CAO, Office of Acquisition Policy, U.S. General Services Administration. Dated: April 24, 2018. Monica Y. Manning, Assistant Administrator, Office of Procurement, National Aeronautics and Space Administration. [FR Doc. 2018-09162 Filed 4-30-18; 8:45 am] BILLING CODE 6820-EP-P
![19144 Federal Register / Vol. 83, No. 84 / Tuesday, May 1, 2018 / Rules and Regulations
DEPARTMENT OF DEFENSE and National Aeronautics and Space DATES: For effective dates see the
Administration (NASA). separate documents, which follow.
GENERAL SERVICES
ADMINISTRATION ACTION: Summary presentation of final FOR FURTHER INFORMATION CONTACT: The
rules. analyst whose name appears in the table
NATIONAL AERONAUTICS AND below in relation to the FAR case.
SPACE ADMINISTRATION SUMMARY: This document summarizes Please cite FAC 2005–98 and the
the Federal Acquisition Regulation specific FAR case number. For
48 CFR Chapter 1 (FAR) rules agreed to by the Civilian information pertaining to status or
Agency Acquisition Council and the publication schedules, contact the
[Docket No. FAR 2018–0001, Sequence Defense Acquisition Regulations Regulatory Secretariat Division at 202–
No. 2] Council (Councils) in this Federal 501–4755.
Federal Acquisition Regulation: Acquisition Circular (FAC) 2005–98. A
Federal Acquisition Circular 2005–98; companion document, the Small Entity
Introduction Compliance Guide (SECG), follows this
FAC. The FAC, including the SECG, is
AGENCY: Department of Defense (DoD), available via the internet at http://
General Services Administration (GSA), www.regulations.gov.
RULES LISTED IN FAC 2005–98
Item Subject FAR case Analyst
I ........................................... Task- and Delivery-Order Protests .............................................................................. 2017–007 Gray.
II .......................................... Duties of Office of Small and Disadvantaged Business Utilization ............................. 2017–008 Fry.
III ......................................... Liquidated Damages Rate Adjustment ........................................................................ 2017–004 Delgado.
IV ......................................... Audit of Settlement Proposals ..................................................................................... 2015–039 Delgado.
SUPPLEMENTARY INFORMATION: Item II—Duties of Office of Small and Item IV—Audit of Settlement Proposals
Summaries for each FAR rule follow. Disadvantaged Business Utilization (FAR Case 2015–039)
For the actual revisions and/or (FAR Case 2017–008)
This final rule amends the FAR to
amendments made by these rules, refer This final rule amends the FAR to raise the dollar threshold requirement
to the specific item numbers and reflect additional duties for agencies’ for the audit of prime contract
subjects set forth in the documents Office of Small and Disadvantaged settlement proposals and subcontract
following these item summaries. FAC Business Utilization, or for DoD’s Office settlements from $100,000 to $750,000
2005–98 amends the FAR as follows: of Small Business Programs, which were to align with the threshold in FAR
Item I—Task- and Delivery-Order added to section 15(k) of the Small 15.403–4(a)(1) for obtaining certified
Business Act by the NDAA for FY 2017. cost or pricing data.
Protests (FAR Case 2017–007)
This rule only provides information The requirements in the rule will not
This final rule amends the FAR to regarding the internal operating have a significant economic impact on
implement section 835 of the National procedures of the Government. a substantial number of small entities.
Defense Authorization Act (NDAA) for Since the rule raises the audit threshold,
Item III—Liquidated Damages Rate
Fiscal Year (FY) 2017 (Pub. L. 114–328). even fewer small businesses will be
Adjustment (FAR Case 2017–004)
Section 835 amends 10 U.S.C. subject to audits of their termination
This final rule amends the FAR to settlement proposals resulting in a
2304c(e)(1)(B) to raise the threshold for
adjust for inflation the rate of liquidated reduction of time spent to complete
task- and delivery-order protests from
damages assessed or enforced by termination settlements.
$10 million to $25 million (applicable to
Department of Labor (DOL) regulations Dated: April 25, 2018.
DoD, NASA, and the Coast Guard). The for violations of the overtime provisions
section also amends 41 U.S.C. 4106(f) to of the Contract Work Hours and Safety
William F. Clark,
repeal the sunset date, which was also Standards Act. The FAR rule Director, Office of Government-wide
previously repealed by the GAO Acquisition Policy, Office of Acquisition
implements DOL’s interim final rule
Civilian Task and Delivery Order Protest Policy, Office of Government-wide Policy.
published in the Federal Register at 81
Authority Act of 2016 (Pub. L. 114–260). FR 43430 on July 1, 2016, DOL’s final Federal Acquisition Circular (FAC) 2005–
There will be an unquantifiable impact rule published in the Federal Register at 98 is issued under the authority of the
on offerors (including small businesses) 82 FR 5373 on January 18, 2017, and Secretary of Defense, the Administrator of
that lose the right to protest awards of subsequent adjustments for inflation General Services, and the Administrator for
task or delivery orders valued between pursuant to the Federal Civil Penalties the National Aeronautics and Space
$10 million and $25 million, but the Administration.
Inflation Adjustment Act of 1990, as
Unless otherwise specified, all Federal
impact is expected to be de minimis, amended by the Federal Civil Penalties
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Acquisition Regulation (FAR) and other
because there are very few protests of Inflation Adjustment Act Improvements directive material contained in FAC 2005–98
procurements in that dollar range. Act of 2015 (section 701 of Pub. L. 114– is effective May 1, 2018 except for items I,
74)(28 U.S.C. 2461 Note). There is no II, III, and IV, which are effective May 31,
significant impact on small entities 2018.
imposed by the FAR rule.
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![Federal Register / Vol. 83, No. 84 / Tuesday, May 1, 2018 / Rules and Regulations 19145
Dated: April 24, 2018. I. Background lose the right to protest as a result of this
Shay D. Assad, Section 835 of the National Defense rule is likely de minimis, given the
Director, Defense Pricing/Defense Authorization Act for Fiscal Year 2017 historical data from GAO indicating a
Procurement and Acquisition Policy. (Pub. L. 114–328) was enacted small number of protests in the affected
Dated: April 23, 2018. December 23, 2016. Section 835(a) dollar range. Further, there are some
Jeffrey A. Koses, amended 10 U.S.C. 2304c(e)(1)(B) to benefits to offerors or contractors who
Senior Procurement Executive/Deputy CAO, raise the threshold for task- and win awards and will no longer need to
Office of Acquisition Policy, U.S. General delivery-order protests from $10 million expend resources defending challenges
Services Administration. to $25 million (applicable to DoD, to the award. Therefore, the net burden
Dated: April 24, 2018. NASA, and the Coast Guard). Section of this rule is estimated as less than
Monica Y. Manning, 835(b) amended 41 U.S.C. 4106(f) to zero, though the FAR Council is not able
Assistant Administrator, Office of repeal the sunset date of September 30, to monetize cost savings.
Procurement, National Aeronautics and 2016, of the authority to protest the IV. Applicability to Contracts at or
Space Administration. placement of an order (for the other Below the Simplified Acquisition
[FR Doc. 2018–09162 Filed 4–30–18; 8:45 am] civilian agencies). The sunset date was Threshold and for Commercial Items,
BILLING CODE 6820–EP–P already repealed on December 14, 2016, Including Commercially Available Off-
by the GAO Civilian Task and Delivery the-Shelf Items
Order Protest Authority Act of 2016
DEPARTMENT OF DEFENSE (Pub. L. 114–260). This rule does not add any new
solicitation provisions or clauses, or
GENERAL SERVICES II. Discussion and Analysis impact any existing provisions or
ADMINISTRATION This final rule amends FAR clauses.
16.505(a)(10) to raise the threshold for V. Publication of This Final Rule for
NATIONAL AERONAUTICS AND DoD, NASA, and the Coast Guard from Public Comment Is Not Required by
SPACE ADMINISTRATION $10 million to $25 million and remove Statute
the sunset date for the other civilian
48 CFR Part 16 agencies. The statute that applies to the
publication of the Federal Acquisition
III. Expected Cost Savings Regulation (FAR) is the Office of Federal
[FAC 2005–98; FAR Case 2017–007; Item
I; Docket No. 2017–0007, Sequence No. 1] The rule is administrative in nature— Procurement Policy statute (codified at
it follows the statute exactly, raising a Title 41 of the United States Code).
RIN 9000–AN41 threshold and removing a sunset date. Specifically, 41 U.S.C. 1707(a)(1)
Currently, FAR 16.505(a)(10)(i) requires that a procurement policy,
Federal Acquisition Regulation: Task- prohibits any protest in connection with regulation, procedure, or form
and Delivery-Order Protests the issuance or proposed issuance of an (including an amendment or
order under a task-order contract or modification thereof) must be published
AGENCY: Department of Defense (DoD), delivery-order contract, except for a for public comment if it relates to the
General Services Administration (GSA), protest on the grounds that the order expenditure of appropriated funds, and
and National Aeronautics and Space increases the scope, period, or has either a significant effect beyond the
Administration (NASA). maximum value of the contract; or the internal operating procedures of the
ACTION: Final rule. order is valued in excess of $10 million. agency issuing the policy, regulation,
This FAR change implements section procedure, or form, or has a significant
SUMMARY: DoD, GSA, and NASA are 835 of the National Defense cost or administrative impact on
issuing a final rule amending the Authorization Act for Fiscal Year 2017 contractors or offerors. This final rule is
Federal Acquisition Regulation (FAR) to to— not required to be published for public
implement a section of the National • Raise the threshold at which a comment, because it follows the statute
Defense Authorization Act for Fiscal protest may be filed at the Government exactly, raising a threshold and
Year 2017 to raise the threshold for task- Accountability Office (GAO) for task or removing a sunset date.
and delivery-order protests from $10 delivery orders from $10 million to $25
million, applicable only to DoD, NASA, VI. Executive Orders 12866 and 13563
million to $25 million (applicable to
DoD, NASA, and the Coast Guard) and and the Coast Guard; and Executive Orders (E.O.s) 12866 and
to repeal the sunset date for the • Remove the sunset date (September 13563 direct agencies to assess all costs
authority to protest the placement of an 30, 2016) for the authority to protest the and benefits of available regulatory
order (for the other civilian agencies), placement of an order for agencies other alternatives and, if regulation is
which was also previously repealed by than DoD, NASA, and the Coast Guard. necessary, to select regulatory
the GAO Civilian Task and Delivery Although, according to GAO, there are approaches that maximize net benefits
Order Protest Authority Act of 2016. fewer than 10 protests per year of (including potential economic,
DATES: Effective: May 31, 2018. procurements between $10 million and environmental, public health and safety
$25 million, the higher threshold for effects, distributive impacts, and
FOR FURTHER INFORMATION CONTACT: Mr. protests of task or delivery orders for equity). E.O. 13563 emphasizes the
Charles Gray, Procurement Analyst, at DoD, NASA, and the Coast Guard will importance of quantifying both costs
703–795–6328, for clarification of result in savings for GAO and the and benefits, of reducing costs, of
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content. For information pertaining to affected Executive branch agencies, harmonizing rules, and of promoting
status or publication schedules, contact because there will no longer be protests flexibility. This is not a significant
the Regulatory Secretariat Division at of orders valued between $10 million regulatory action and, therefore, was not
202–501–4755. Please cite FAC 2005– and $25 million based on dollar value. subject to review under section 6(b) of
98, FAR Case 2017–007. While it is difficult to quantify, the lost E.O. 12866, Regulatory Planning and
SUPPLEMENTARY INFORMATION: benefit to interested parties who will Review, dated September 30, 1993. This
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Document Created: 2018-05-01 00:23:50
Document Modified: 2018-05-01 00:23:50
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Rules and Regulations | |
| Action | Summary presentation of final rules. | |
| Dates | For effective dates see the separate documents, which follow. | |
| Contact | The analyst whose name appears in the table below in relation to the FAR case. Please cite FAC 2005-98 and the specific FAR case number. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. | |
| FR Citation | 83 FR 19144 |
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