83 FR 19145 - Federal Acquisition Regulation: Task- and Delivery-Order Protests

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 84 (May 1, 2018)

Page Range		19145-19146
FR Document		2018-09165

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement a section of the National Defense Authorization Act for Fiscal Year 2017 to raise the threshold for task-and delivery-order protests from $10 million to $25 million (applicable to DoD, NASA, and the Coast Guard) and to repeal the sunset date for the authority to protest the placement of an order (for the other civilian agencies), which was also previously repealed by the GAO Civilian Task and Delivery Order Protest Authority Act of 2016.

Federal Register, Volume 83 Issue 84 (Tuesday, May 1, 2018)

[Federal Register Volume 83, Number 84 (Tuesday, May 1, 2018)]
[Rules and Regulations]
[Pages 19145-19146]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-09165]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 16

[FAC 2005-98; FAR Case 2017-007; Item I; Docket No. 2017-0007, Sequence 
No. 1]
RIN 9000-AN41


Federal Acquisition Regulation: Task- and Delivery-Order Protests

AGENCY: 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 implement a section of the 
National Defense Authorization Act for Fiscal Year 2017 to raise the 
threshold for task-and delivery-order protests from $10 million to $25 
million (applicable to DoD, NASA, and the Coast Guard) and to repeal 
the sunset date for the authority to protest the placement of an order 
(for the other civilian agencies), which was also previously repealed 
by the GAO Civilian Task and Delivery Order Protest Authority Act of 
2016.

DATES: Effective: May 31, 2018.

FOR FURTHER INFORMATION CONTACT: Mr. Charles Gray, Procurement Analyst, 
at 703-795-6328, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-98, FAR Case 
2017-007.

SUPPLEMENTARY INFORMATION: 

I. Background

    Section 835 of the National Defense Authorization Act for Fiscal 
Year 2017 (Pub. L. 114-328) was enacted December 23, 2016. Section 
835(a) amended 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). Section 835(b) amended 
41 U.S.C. 4106(f) to repeal the sunset date of September 30, 2016, of 
the authority to protest the placement of an order (for the other 
civilian agencies). The sunset date was already repealed on December 
14, 2016, by the GAO Civilian Task and Delivery Order Protest Authority 
Act of 2016 (Pub. L. 114-260).

II. Discussion and Analysis

    This final rule amends FAR 16.505(a)(10) to raise the threshold for 
DoD, NASA, and the Coast Guard from $10 million to $25 million and 
remove the sunset date for the other civilian agencies.

III. Expected Cost Savings

    The rule is administrative in nature--it follows the statute 
exactly, raising a threshold and removing a sunset date.
    Currently, FAR 16.505(a)(10)(i) prohibits any protest in connection 
with the issuance or proposed issuance of an order under a task-order 
contract or delivery-order contract, except for a protest on the 
grounds that the order increases the scope, period, or maximum value of 
the contract; or the order is valued in excess of $10 million. This FAR 
change implements section 835 of the National Defense Authorization Act 
for Fiscal Year 2017 to--
     Raise the threshold at which a protest may be filed at the 
Government Accountability Office (GAO) for task or delivery orders from 
$10 million to $25 million, applicable only to DoD, NASA, and the Coast 
Guard; and
     Remove the sunset date (September 30, 2016) for the 
authority to protest the placement of an order for agencies other than 
DoD, NASA, and the Coast Guard.

Although, according to GAO, there are fewer than 10 protests per year 
of procurements between $10 million and $25 million, the higher 
threshold for protests of task or delivery orders for DoD, NASA, and 
the Coast Guard will result in savings for GAO and the affected 
Executive branch agencies, because there will no longer be protests of 
orders valued between $10 million and $25 million based on dollar 
value. While it is difficult to quantify, the lost benefit to 
interested parties who will lose the right to protest as a result of 
this rule is likely de minimis, given the historical data from GAO 
indicating a small number of protests in the affected dollar range. 
Further, there are some benefits to offerors or contractors who win 
awards and will no longer need to expend resources defending challenges 
to the award. Therefore, the net burden of this rule is estimated as 
less than zero, though the FAR Council is not able to monetize cost 
savings.

IV. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold and for Commercial Items, Including Commercially Available 
Off-the-Shelf Items

    This rule does not add any new solicitation provisions or clauses, 
or impact any existing provisions or clauses.

V. Publication of This Final Rule for Public Comment Is Not Required by 
Statute

    The statute that applies to the publication of the Federal 
Acquisition Regulation (FAR) is the Office of Federal Procurement 
Policy statute (codified at Title 41 of the United States Code). 
Specifically, 41 U.S.C. 1707(a)(1) requires that a procurement policy, 
regulation, procedure, or form (including an amendment or modification 
thereof) must be published for public comment if it relates to the 
expenditure of appropriated funds, and has either a significant effect 
beyond the internal operating procedures of the agency issuing the 
policy, regulation, procedure, or form, or has a significant cost or 
administrative impact on contractors or offerors. This final rule is 
not required to be published for public comment, because it follows the 
statute exactly, raising a threshold and removing a sunset date.

VI. 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

[[Page 19146]]

rule is not a major rule under 5 U.S.C. 804.

VII. Executive Order 13771

    Pursuant to E.O. 13771, this rule is a deregulatory action. 
Information on the expected cost savings of this action can be found in 
section III of the preamble.

VIII. Regulatory Flexibility Act

    Because a notice of proposed rulemaking and an opportunity for 
public comment are not required to be given for this rule under 41 
U.S.C. 1707(a)(1) (see section V. of this preamble), the analytical 
requirements of the Regulatory Flexibility Act (5 U.S.C. 601 et seq.) 
are not applicable. Accordingly, no regulatory flexibility analysis is 
required and none has been prepared.

IX. 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 Part 16

    Government procurement.

    Dated: April 25, 2018.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of 
Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA are amending 48 CFR part 16 as set 
forth below:

PART 16--TYPES OF CONTRACTS

0
1. The authority citation for part 16 continues to read as follows:

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


0
2. Amend section 16.505 by revising paragraph (a)(10) to read as 
follows:


16.505   Ordering.

    (a) * * *
    (10)(i) No protest under subpart 33.1 is authorized in connection 
with the issuance or proposed issuance of an order under a task-order 
contract or delivery-order contract, except--
    (A) A protest on the grounds that the order increases the scope, 
period, or maximum value of the contract; or
    (B)(1) For agencies other than DoD, NASA, and the Coast Guard, a 
protest of an order valued in excess of $10 million (41 U.S.C. 
4106(f)); or
    (2) For DoD, NASA, or the Coast Guard, a protest of an order valued 
in excess of $25 million (10 U.S.C. 2304c(e)).
    (ii) Protests of orders in excess of the thresholds stated in 
16.505(a)(10)(i)(B) may only be filed with the Government 
Accountability Office, in accordance with the procedures at 33.104.
* * * * *
[FR Doc. 2018-09165 Filed 4-30-18; 8:45 am]
 BILLING CODE 6820-EP-P

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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19146 Federal Register / Vol. 83, No. 84 / Tuesday, May 1, 2018 / Rules and Regulations

rule is not a major rule under 5 U.S.C. (ii) Protests of orders in excess of the of the Small Business Act to add duties
804. thresholds stated in 16.505(a)(10)(i)(B) for OSDBUs and OSBPs.
may only be filed with the Government Section 1812 of the NDAA for FY
VII. Executive Order 13771 2017 amends the Small Business Act to
Accountability Office, in accordance
Pursuant to E.O. 13771, this rule is a with the procedures at 33.104. specifically reference the existing duties
deregulatory action. Information on the * * * * * of OSDBUs and OSBPs with respect to
expected cost savings of this action can [FR Doc. 2018–09165 Filed 4–30–18; 8:45 am] the various small business programs and
be found in section III of the preamble. BILLING CODE 6820–EP–P
consolidation of contract requirements.
Section 1812 also requires that OSDBUs
VIII. Regulatory Flexibility Act and OSBPs review summary purchase
Because a notice of proposed DEPARTMENT OF DEFENSE card data for acquisitions above the
rulemaking and an opportunity for micro-purchase threshold (e.g., $3,500),
public comment are not required to be GENERAL SERVICES but below the simplified acquisition
given for this rule under 41 U.S.C. ADMINISTRATION threshold (e.g., $150,000), to ensure
1707(a)(1) (see section V. of this these acquisitions are compliant with
preamble), the analytical requirements NATIONAL AERONAUTICS AND the Small Business Act and have been
of the Regulatory Flexibility Act (5 SPACE ADMINISTRATION properly recorded in the Federal
U.S.C. 601 et seq.) are not applicable. Procurement Data System (FPDS). The
Accordingly, no regulatory flexibility 48 CFR Part 19 revision to the FAR reflecting section
analysis is required and none has been 1812 of the NDAA includes flexibility
[FAC 2005–98; FAR Case 2017–008: Item
prepared. II; Docket No. 2017–0008; Sequence No. 1]
for each OSDBU or OSBP to identify the
best purchase card data available to
IX. Paperwork Reduction Act RIN 9000–AN36 their agency when implementing the
The rule does not contain any statutory requirement.
information collection requirements that Federal Acquisition Regulation: Duties Paragraph (a) of section 1813 requires
require the approval of the Office of of Office of Small and Disadvantaged OSDBUs and OSBPs to provide
Management and Budget under the Business Utilization assistance to a small business prime
Paperwork Reduction Act (44 U.S.C. AGENCY: Department of Defense (DoD), contractor or subcontractor in finding
chapter 35). General Services Administration (GSA), resources for education and training on
and National Aeronautics and Space compliance with the FAR after award of
List of Subjects in 48 CFR Part 16
Administration (NASA). their contract or subcontract.
Government procurement. Paragraph (b) of section 1821 requires
ACTION: Final rule.
Dated: April 25, 2018. OSDBUs and OSBPs to review all
William F. Clark, SUMMARY: DoD, GSA, and NASA are required small business subcontracting
issuing a final rule amending the plans to ensure that they provide
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition Federal Acquisition Regulation (FAR) to maximum practicable opportunity for
Policy, Office of Government-wide Policy. reflect sections of the National Defense small business concerns to participate
Authorization Act for Fiscal Year 2017, as subcontractors.
Therefore, DoD, GSA, and NASA are Currently, acquisition-related duties
amending 48 CFR part 16 as set forth which amend section 15(k) of the Small
Business Act to provide additional of OSDBUs and OSBPs are found in
below: FAR 19.201, General policy. The duties
duties for agencies’ Office of Small and
Disadvantaged Business Utilization found in FAR 19.201 are based on the
PART 16—TYPES OF CONTRACTS duties found in section 15(k) of the
(OSDBU), and for DoD’s Office of Small
■ 1. The authority citation for part 16 Business Programs (OSBP). Small Business Act (15 U.S.C. 644(k)).
continues to read as follows: Additional OSDBU and OSBP
DATES: Effective: May 31, 2018.
acquisition-related duties enacted before
Authority: 40 U.S.C. 121(c); 10 U.S.C. FOR FURTHER INFORMATION CONTACT: Ms. the NDAA for FY 2017 listed at 15
chapter 137; and 51 U.S.C. 20113. Janet Fry, Procurement Analyst, at 703– U.S.C. 644(k), which were not
■ 2. Amend section 16.505 by revising 605–3167 for clarification of content. previously updated in the FAR, are also
paragraph (a)(10) to read as follows: For information pertaining to status or included in this rule.
publication schedules, contact the Additionally, this rule revises the
16.505 Ordering. Regulatory Secretariat Division at 202– OSDBU and OSBP duty at FAR
(a) * * * 501–4755. Please cite FAC 2005–98, 19.201(c)(5), which relates to increasing
(10)(i) No protest under subpart 33.1 FAR Case 2017–008. small business participation in
is authorized in connection with the SUPPLEMENTARY INFORMATION: solicitations that involve bundling. This
issuance or proposed issuance of an revision reflects that OSDBUs and
order under a task-order contract or I. Background
OSBPs perform much broader functions
delivery-order contract, except— DoD, GSA, and NASA are amending under those scenarios than what is
(A) A protest on the grounds that the the FAR to reflect sections of the currently listed in the FAR.
order increases the scope, period, or National Defense Authorization Act
maximum value of the contract; or (NDAA) for Fiscal Year (FY) 2017 (Pub. II. Publication of This Final Rule for
(B)(1) For agencies other than DoD, L. 114–328), which amend the Small Public Comment Is Not Required by
NASA, and the Coast Guard, a protest of Business Act to provide additional Statute
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an order valued in excess of $10 million duties for OSDBUs. By operation of 10 The statute that applies to the
(41 U.S.C. 4106(f)); or U.S.C. 144(b), these additional duties publication of the FAR is the Office of
(2) For DoD, NASA, or the Coast also apply to OSBPs. Section 1812, Federal Procurement Policy statute
Guard, a protest of an order valued in paragraph (a) of section 1813, and (codified at title 41 of the United States
excess of $25 million (10 U.S.C. paragraph (b) of section 1821 of the Code). Specifically, 41 U.S.C. 1707(a)(1)
2304c(e)). NDAA for FY 2017 amend section 15(k) requires that a procurement policy,

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Document Created: 2018-05-01 00:24:52
Document Modified: 2018-05-01 00:24:52

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		Final rule.
Dates		Effective: May 31, 2018.
Contact		Mr. Charles Gray, Procurement Analyst, at 703-795-6328, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-98, FAR Case 2017-007.
FR Citation		83 FR 19145
RIN Number		9000-AN41

83 FR 19145 - Federal Acquisition Regulation: Task- and Delivery-Order Protests

DEPARTMENT OF DEFENSEGENERAL SERVICES ADMINISTRATIONNATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 84 (May 1, 2018)

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION