83 FR 54901 - Federal Acquisition Regulation: Ombudsman for Indefinite Delivery Contracts

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 212 (November 1, 2018)

Page Range		54901-54903
FR Document		2018-23889
DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to implement a new clause for use in multiple-award indefinite-delivery, indefinite-quantity contracts that provides information on the task- and delivery-order ombudsman.
Federal Register, Volume 83 Issue 212 (Thursday, November 1, 2018)
[Federal Register Volume 83, Number 212 (Thursday, November 1, 2018)]
[Proposed Rules]
[Pages 54901-54903]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2018-23889]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 16 and 52

[FAR Case 2017-020; Docket No. 2017-0020, Sequence No. 1]
RIN 9000-AN58


Federal Acquisition Regulation: Ombudsman for Indefinite Delivery 
Contracts

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 a new clause for use in 
multiple-award indefinite-delivery, indefinite-quantity contracts that 
provides information on the task- and delivery-order ombudsman.

DATES: Interested parties should submit comments to the Regulatory 
Secretariat Division at one of the addresses shown below on or before 
December 31, 2018 to be considered in the formulation of a final rule.

ADDRESSES: Submit comments in response to FAR Case 2017-020 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by entering 
``FAR Case 2017-020'' under the heading ``Enter Keyword or ID'' and 
selecting ``Search.'' Select the link ``Comment Now'' that corresponds 
with ``FAR Case 2017-020.'' Follow the instructions provided on the 
screen. Please include your name, company name (if any), and ``FAR Case 
2017-020'' on your attached document.
     Mail: General Services Administration, Regulatory-
Secretariat Division (MVCB), ATTN: Lois Mandell, 1800 F Street NW, 2nd 
floor, Washington, DC 20405.
    Instructions: Please submit comments only and cite ``FAR case 2017-
020'' 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. To 
confirm receipt of your comment(s), please check www.regulations.gov, 
approximately two to three days after submission to verify posting 
(except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case 
2017-020.''

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to revise the FAR to implement a 
new clause that provides the agency task- and delivery-order 
ombudsman's responsibilities and contact information for use in 
multiple-award indefinite-delivery, indefinite-quantity (IDIQ) 
contracts. 10 U.S.C. 2304c and 41 U.S.C. 4106 require agencies to 
appoint or designate a task- and delivery-order ombudsman who is 
responsible for reviewing complaints from contractors and ensuring that 
all of the contractors are afforded a fair opportunity to be considered 
for the award of an order, consistent with the procedures in the 
contract.
    To help implement the statutory requirement, FAR 16.504(a)(4)(v) 
requires the name, address, telephone number, facsimile number, and 
email address of the agency's task- and delivery-order ombudsman be 
included in IDIQ solicitations, if multiple awards may result from the 
solicitation, and multiple-award IDIQ contracts. As a result of the 
requirement at FAR 16.504, several agencies created an agency-level 
contract clause that provides this information to contractors. This 
rule provides a standardized way to provide the necessary information 
to contractors with a single contract clause for use by all agencies.

II. Discussion and Analysis

    This rule proposes to amend the FAR, as follows:
     FAR part 16 is revised to add a prescription that requires 
the use of the

[[Page 54902]]

new clause in solicitations and contracts when a multiple-award, IDIQ 
contract is contemplated.
     FAR part 52 is revised to add a new clause at FAR 52.216-
XX, Task-Order and Delivery-Order Ombudsman, that provides contractors 
with contact information (as a fill-in) for the agency ombudsman, 
explains the responsibilities of the ombudsman, and explains that 
contacting the ombudsman does not alter the timelines for other 
processes in the FAR.
     An Alternate I clause is added to the main clause for 
contracts used by multiple agencies. The Alternate I clause explains 
that for contracts used by multiple agencies, complaints from 
contractors concerning orders placed under multi-agency contracts are 
primarily reviewed by the task- and delivery-order ombudsman for the 
ordering agency and provides the offeror with the contact information 
for the ordering agency's ombudsman.

III. Applicability to Contracts at or Below the Simplified Acquisition 
Threshold (SAT) and for Commercial Items, Including Commercially 
Available Off-the-Shelf (COTS) Items

    This rule proposes to create a new FAR clause 52.216-XX, Task-Order 
and Delivery-Order Ombudsman. The objective of the rule is to implement 
a single clause available for use by all agencies when awarding 
multiple-award IDIQ contracts that provides contractors with the 
requisite information for the agency task- and delivery-order 
ombudsman.
    DoD, GSA, and NASA plan to apply this clause to solicitations and 
contracts for the acquisition of commercial items, including COTS 
items, as defined at FAR 2.101. This rule does not impose any burden on 
contractors. Rather, this rule provides contractors with information on 
the responsibilities of and how to contact the ombudsman. Not applying 
this guidance to contracts for the acquisition of commercial items, 
including COTS items, could prevent some contractors from receiving the 
requisite information needed to address an issue with an agency's task- 
and delivery-order ombudsman. Consequently, DoD, GSA, and NASA plan to 
apply the rule to contracts for the acquisition of commercial items, 
including COTS items.
    The rule is not likely to apply to contracts at or below the SAT, 
since the value of multiple-award IDIQ contracts are usually above the 
SAT.

IV. 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.

V. Executive Order 13771

    This rule is not subject to E.O. 13771, because this rule is not a 
significant regulatory action under E.O. 12866.

VI. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this 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. However, 
an Initial Regulatory Flexibility Analysis (IRFA) has been performed 
and is summarized as follows:

    The Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA) are 
proposing to revise the Federal Acquisition Regulation (FAR) to 
implement a new clause that provides the agency task- and delivery-
order ombudsman's responsibilities and contact information for use 
in multiple-award indefinite-delivery, indefinite-quantity (IDIQ) 
contracts. 10 U.S.C. 2304c and 41 U.S.C. 4106 require agencies to 
appoint or designate a task- and delivery-order ombudsman who is 
responsible for reviewing complaints from contractors and ensuring 
that all of the contractors are afforded a fair opportunity to be 
considered for the award of an order, consistent with the procedures 
in the contract.
    To help implement the statutory requirement, FAR 16.504(a)(4)(v) 
requires the name, address, telephone number, facsimile number, and 
email address of the agency's task- and delivery-order ombudsman be 
included in IDIQ solicitations and contracts, if multiple awards may 
result from the solicitation. As a result of the requirement at FAR 
16.504, several agencies created an agency-level contract clause 
that provides this information to contractors. This rule provides a 
standardized way to provide the necessary information to contractors 
with a single contract clause for use by all agencies.
    The objective of this proposed rule is to implement a single 
clause that provides contractors with the requisite information for 
the agency task- and delivery-order ombudsman and is available for 
use by all agencies when awarding a multiple-award IDIQ contract.
    DoD, GSA, and NASA do not expect this 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. 
According to data from the Federal Procurement Data System, there 
were 6,207 new multiple-award contracts awarded in fiscal year 2017. 
Of the 6,207 new awards, 4,477 (72 percent) of these actions were 
awarded to 3,873 unique small business entities. The proposed rule 
applies to all entities who do business with the Federal Government 
and is not expected to have a significant impact on these entities, 
regardless of business size.
    This proposed rule does not include any new reporting, 
recordkeeping, or other compliance requirements.
    The proposed rule does not duplicate, overlap, or conflict with 
any other Federal rules. There are no known significant alternative 
approaches to the proposed rule that would meet the proposed 
objectives.

    The Regulatory Secretariat Division 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 Division. 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 this rule 
consistent with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2017-020) in 
correspondence.

VII. 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 16 and 52

    Government procurement.

    Dated: October 29, 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 proposing to amend 48 CFR parts 
16 and 52 as set forth below:

0
1. The authority citation for 48 CFR parts 16 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.

[[Page 54903]]

PART 16--TYPES OF CONTRACTS


16.504  [Amended]

0
2. Amend section 16.504 by removing paragraph (a)(4)(v) and 
redesignating paragraphs (a)(4)(vi) and (a)(4)(vii) as paragraphs 
(a)(4)(v) and (a)(4)(vi), respectively.
0
3. Amend section 16.506 by adding paragraph (j) to read as follows.


16.506  Solicitation provisions and contract clauses.

* * * * *
    (j) Insert the clause at 52.216-XX, Task-Order and Delivery-Order 
Ombudsman, in solicitations and contracts when a multiple-award, 
indefinite-delivery, indefinite-quantity contract is contemplated. Use 
the clause with its Alternate I when the contract will be available for 
use by multiple agencies (e.g., Governmentwide acquisition contracts or 
multi-agency contracts). When placing orders under a contract available 
for use by multiple agencies, the ordering agency's contracting officer 
shall complete paragraph (d)(2) and include Alternate I in the 
solicitation and any resulting order.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
4. Add section 52.216-XX to read as follows:


52.216-XX  Task-Order and Delivery-Order Ombudsman.

    As prescribed in 16.506(j), use the following clause:

Task-Order and Delivery-Order Ombudsman (Date)

    (a) In accordance with 41 U.S.C. 4106(g), the Agency has 
designated the following task-order and delivery-order Ombudsman for 
this contract. The Ombudsman must review complaints from the 
Contractor concerning all task- and delivery-order actions for this 
contract and ensure the Contractor is afforded a fair opportunity 
for consideration in the award of task- or delivery-orders, 
consistent with the procedures in the contract.

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(Contracting Officer to insert name, address, telephone number, and 
email address for the Agency Ombudsman or provide the URL address 
where this information may be found.)

    (b) Before consulting with the Ombudsman, the Contractor is 
encouraged to first address complaints with the Contracting Officer 
for resolution. When requested, the Ombudsman may keep the identity 
of the concerned party or entity confidential, unless prohibited by 
law or agency procedure.
    (c) Consulting an ombudsman does not alter or postpone the 
timeline for any other process (e.g., protests).


(End of clause)

    Alternate I. As prescribed in 16.506(j), add the following 
paragraph (d) to the basic clause.

    (d) Contracts used by multiple agencies.
    (1) This is a contract that is used by multiple agencies. 
Complaints from Contractors concerning orders placed under contracts 
used by multiple agencies are primarily reviewed by the task-order 
and delivery-order Ombudsman for the ordering agency.
    (2) The ordering agency has designated the following task-order 
and delivery-order Ombudsman for this order:
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(The ordering agency's contracting officer to insert the name, 
address, telephone number, and email address for the ordering 
agency's Ombudsman or provide the URL address where this information 
may be found.)


(End of clause)

[FR Doc. 2018-23889 Filed 10-31-18; 8:45 am]
 BILLING CODE 6820-EP-P
54902 Federal Register / Vol. 83, No. 212 / Thursday, November 1, 2018 / Proposed Rules

new clause in solicitations and contracts and benefits of available regulatory agencies when awarding a multiple-award
when a multiple-award, IDIQ contract is alternatives and, if regulation is IDIQ contract.
contemplated. necessary, to select regulatory DoD, GSA, and NASA do not expect this
• FAR part 52 is revised to add a new approaches that maximize net benefits rule to have a significant economic impact on
clause at FAR 52.216–XX, Task-Order a substantial number of small entities within
(including potential economic, the meaning of the Regulatory Flexibility Act,
and Delivery-Order Ombudsman, that environmental, public health and safety 5 U.S.C. 601 et seq. According to data from
provides contractors with contact effects, distributive impacts, and the Federal Procurement Data System, there
information (as a fill-in) for the agency equity). E.O. 13563 emphasizes the were 6,207 new multiple-award contracts
ombudsman, explains the importance of quantifying both costs awarded in fiscal year 2017. Of the 6,207 new
responsibilities of the ombudsman, and and benefits, of reducing costs, of awards, 4,477 (72 percent) of these actions
explains that contacting the ombudsman harmonizing rules, and of promoting were awarded to 3,873 unique small business
does not alter the timelines for other flexibility. This is not a significant entities. The proposed rule applies to all
processes in the FAR. regulatory action and, therefore, was not entities who do business with the Federal
• An Alternate I clause is added to subject to review under Section 6(b) of
Government and is not expected to have a
the main clause for contracts used by significant impact on these entities,
E.O. 12866, Regulatory Planning and regardless of business size.
multiple agencies. The Alternate I Review, dated September 30, 1993. This This proposed rule does not include any
clause explains that for contracts used rule is not a major rule under 5 U.S.C. new reporting, recordkeeping, or other
by multiple agencies, complaints from 804. compliance requirements.
contractors concerning orders placed The proposed rule does not duplicate,
under multi-agency contracts are V. Executive Order 13771 overlap, or conflict with any other Federal
primarily reviewed by the task- and This rule is not subject to E.O. 13771, rules. There are no known significant
delivery-order ombudsman for the because this rule is not a significant alternative approaches to the proposed rule
ordering agency and provides the offeror regulatory action under E.O. 12866. that would meet the proposed objectives.
with the contact information for the The Regulatory Secretariat Division
VI. Regulatory Flexibility Act
ordering agency’s ombudsman. has submitted a copy of the IRFA to the
DoD, GSA, and NASA do not expect
III. Applicability to Contracts at or Chief Counsel for Advocacy of the Small
this rule to have a significant economic
Below the Simplified Acquisition Business Administration. A copy of the
impact on a substantial number of small
Threshold (SAT) and for Commercial IRFA may be obtained from the
entities within the meaning of the
Items, Including Commercially Regulatory Secretariat Division. DoD,
Regulatory Flexibility Act 5 U.S.C. 601
Available Off-the-Shelf (COTS) Items GSA and NASA invite comments from
et seq. However, an Initial Regulatory
This rule proposes to create a new small business concerns and other
Flexibility Analysis (IRFA) has been
FAR clause 52.216–XX, Task-Order and interested parties on the expected
performed and is summarized as
Delivery-Order Ombudsman. The impact of this rule on small entities.
follows:
objective of the rule is to implement a DoD, GSA, and NASA will also
The Department of Defense (DoD), General
single clause available for use by all Services Administration (GSA), and National
consider comments from small entities
agencies when awarding multiple-award Aeronautics and Space Administration concerning the existing regulations in
IDIQ contracts that provides contractors (NASA) are proposing to revise the Federal subparts affected by this rule consistent
with the requisite information for the Acquisition Regulation (FAR) to implement a with 5 U.S.C. 610. Interested parties
agency task- and delivery-order new clause that provides the agency task- must submit such comments separately
ombudsman. and delivery-order ombudsman’s and should cite 5 U.S.C. 610 (FAR Case
DoD, GSA, and NASA plan to apply responsibilities and contact information for 2017–020) in correspondence.
this clause to solicitations and contracts use in multiple-award indefinite-delivery,
indefinite-quantity (IDIQ) contracts. 10 VII. Paperwork Reduction Act
for the acquisition of commercial items, U.S.C. 2304c and 41 U.S.C. 4106 require
including COTS items, as defined at agencies to appoint or designate a task- and The rule does not contain any
FAR 2.101. This rule does not impose delivery-order ombudsman who is information collection requirements that
any burden on contractors. Rather, this responsible for reviewing complaints from require the approval of the Office of
rule provides contractors with contractors and ensuring that all of the Management and Budget under the
information on the responsibilities of contractors are afforded a fair opportunity to Paperwork Reduction Act (44 U.S.C.
and how to contact the ombudsman. Not be considered for the award of an order, chapter 35).
applying this guidance to contracts for consistent with the procedures in the
contract. List of Subjects in 48 CFR Parts 16 and
the acquisition of commercial items,
To help implement the statutory 52
including COTS items, could prevent requirement, FAR 16.504(a)(4)(v) requires the
some contractors from receiving the name, address, telephone number, facsimile Government procurement.
requisite information needed to address number, and email address of the agency’s Dated: October 29, 2018.
an issue with an agency’s task- and task- and delivery-order ombudsman be
William F. Clark,
delivery-order ombudsman. included in IDIQ solicitations and contracts,
Consequently, DoD, GSA, and NASA if multiple awards may result from the Director, Office of Government-wide
solicitation. As a result of the requirement at Acquisition Policy, Office of Acquisition
plan to apply the rule to contracts for
FAR 16.504, several agencies created an Policy, Office of Government-wide Policy.
the acquisition of commercial items,
including COTS items. agency-level contract clause that provides
Therefore, DoD, GSA, and NASA are
amozie on DSK3GDR082PROD with PROPOSALS1

The rule is not likely to apply to this information to contractors. This rule
provides a standardized way to provide the proposing to amend 48 CFR parts 16
contracts at or below the SAT, since the necessary information to contractors with a and 52 as set forth below:
value of multiple-award IDIQ contracts single contract clause for use by all agencies.
are usually above the SAT. ■ 1. The authority citation for 48 CFR
The objective of this proposed rule is to
parts 16 and 52 continues to read as
IV. Executive Orders 12866 and 13563 implement a single clause that provides
contractors with the requisite information for follows:
Executive Orders (E.O.s) 12866 and the agency task- and delivery-order Authority: 40 U.S.C. 121(c); 10 U.S.C.
13563 direct agencies to assess all costs ombudsman and is available for use by all chapter 137; and 51 U.S.C. 20113.

VerDate Sep<11>2014 20:21 Oct 31, 2018 Jkt 247001 PO 00000 Frm 00020 Fmt 4702 Sfmt 4702 E:\FR\FM\01NOP1.SGM 01NOP1
Document Created: 2018-11-01 01:05:39
Document Modified: 2018-11-01 01:05:39
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		Proposed Rules
Action		Proposed rule.
Dates		Interested parties should submit comments to the Regulatory
Contact		For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at 202-208-4949. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite ``FAR Case 2017-020.''
FR Citation		83 FR 54901
RIN Number		9000-AN58
CFR Citation		48 CFR 16 48 CFR 52
83 FR 54901 - Federal Acquisition Regulation: Ombudsman for Indefinite Delivery Contracts

DEPARTMENT OF DEFENSEGENERAL SERVICES ADMINISTRATIONNATIONAL AERONAUTICS AND SPACE ADMINISTRATION

Federal Register Volume 83, Issue 212 (November 1, 2018)

DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
