Rule2021-22145
Federal Acquisition Regulation: Consolidation and Substantial Bundling
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
November 4, 2021
Effective
December 6, 2021
Issuing agencies
Defense DepartmentGeneral Services AdministrationNational Aeronautics and Space Administration
Abstract
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 2016 that requires providing public notices of determinations for substantial bundling and consolidation of contract requirements.
Full Text
<html>
<head>
<title>Federal Register, Volume 86 Issue 211 (Thursday, November 4, 2021)</title>
</head>
<body><pre>
[Federal Register Volume 86, Number 211 (Thursday, November 4, 2021)]
[Rules and Regulations]
[Pages 61038-61040]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-22145]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 5 and 7
[FAC 2022-01; FAR Case 2019-003; Item II; Docket No. 2019-0029;
Sequence No. 1]
RIN 9000-AN86
Federal Acquisition Regulation: Consolidation and Substantial
Bundling
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 2016 that requires
providing public notices of determinations for substantial bundling and
consolidation of contract requirements.
DATES: Effective December 6, 2021.
FOR FURTHER INFORMATION CONTACT: Ms. Dana Bowman, Procurement Analyst,
at 202-803-3188, or by email at <a href="/cdn-cgi/l/email-protection#4125202f206f232e362c202f012632206f262e37"><span class="__cf_email__" data-cfemail="0367626d622d616c746e626d436470622d646c75">[email protected]</span></a>. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAC 2022-01, FAR Case
2019-003.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule at 85 FR 23299 on
April 27, 2020, to implement section 863 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2016 (Pub. L. 114-92,
codified at 15 U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)) and the Small
Business Administration (SBA) implementing regulations. SBA published a
final rule to implement section 863 on November 29, 2019, at 84 FR
65647.
Section 863 requires public notification of an agency's
determination to substantially bundle or consolidate contract
requirements. Specifically, publication of a notice is required when
the head of a contracting agency determines that an acquisition plan
for a procurement involves substantial bundling of contract
requirements. The head of the contracting agency must publish a notice
on a public website that such determination has been made not later
than 7 days after making the determination. Any solicitation for a
procurement related to the acquisition plan may not be published
earlier than 7 days after such notice is published. A justification for
the determination must be published with the solicitation. The
justification must address the specific benefits anticipated, any
alternative approaches, impediments to participation by small business
concerns as prime contractors, and actions designed to maximize
participation of small business concerns as subcontractors (see 15
U.S.C. 644(e)(3)(A) through (C)).
Section 863 also requires publication of a notice when the senior
procurement executive (SPE) or chief acquisition officer (CAO) makes a
determination that an acquisition strategy involving consolidation of
contract requirements is necessary and justified under 15 U.S.C.
657q(c)(2)(A). The SPE or CAO must publish a notice on a public website
that such determination has been made not later than 7 days after
making the determination. Any solicitation for a procurement related to
the acquisition strategy may not be published earlier than 7 days after
such notice is published. A justification for the determination must be
published with the solicitation. The justification must include the
information in 15 U.S.C. 657q(c)(1)(A) through (E).
As a result, this final rule amends FAR 7.107-5, Notifications, to
require the publication on the Governmentwide Point of Entry of a
notice of substantial bundling or of a notice of consolidation, as
required in the SBA final rule. This section also contains references
to the required content of the consolidation determination (at FAR
7.107-2) and the substantial bundling determination (at FAR 7.107-4).
Four respondents submitted public comments in response to the
proposed rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments received
and any changes made to the rule as a result of the public comments are
provided as follows:
A. Summary of Significant Changes From the Proposed Rule
There are no significant changes made to the final rule.
B. Analysis of Public Comments
1. Support for the Rule
Comment: One respondent expressed support for the rule.
Response: The Councils acknowledge the respondent's support for the
rule.
2. More Time Between Publication of Notice and Solicitation Issuance
Comment: Two respondents expressed concern about the 7-day
notification period, stating that it is not enough time for small
businesses to plan and strategize. The respondents requested the
notification posting period be extended for a longer time, at least 2
weeks.
Response: This FAR rule uses the same time period set forth in
SBA's implementation of section 863 after SBA considered the length of
the notification period.
3. Location of Notices
Comment: One respondent suggested that the existing requirement to
publish the notification on a ``public site'' is too vague and that
compliance could be satisfied by posting on an agency's social media
platform. The respondent recommends that all notifications should be
posted on beta.sam via the Governmentwide point of entry (GPE).
Response: This rule implements section 863 of the NDAA for FY 2016
(Pub. L. 114-92) and the SBA implementing regulations (13 CFR 125),
which requires agencies to provide public notices on the GPE of
determinations for substantial bundling
[[Page 61039]]
and consolidation of contract requirements. FAR 7.107-5(b)(1) currently
requires annual publication on the agency website of a list of bundled
contracts and rationale, because section 1312 of Public Law 111-240
requires it. Thus, this rule could not mandate that all notifications
be published on SAM via the GPE.
Additionally, the FAR text is amended at 7.107-5(c) and 7.107-5(d)
to require the Senior Procurement Executive or Chief Acquisition
Officer to publish notifications of consolidation and substantial
bundling of contract requirements in the GPE not later than 7 days
after making such a determination and prior to issuance of the
solicitation. The FAR does not use social media as a publication
platform. No changes were made to the FAR text as a result of this
comment.
4. Broader Applicability of Notice Requirement
Comment: One respondent questioned why the required notification
did not apply to all bundled procurements. The respondent further
stated that the definition for substantial bundling should be
referenced to provide guidance to the procurement office.
Response: This rule implements section 863 of the NDAA for FY 2016
(Pub. L. 114-92) and the SBA implementing regulations, which require
publication of notices when a procurement involves consolidation or
substantial bundling of contract requirements. The definition for
substantial bundling can be found at 7.107-4(a)(1). Neither section 863
nor the SBA regulations altered notification requirements for bundled
procurements below the substantial bundling threshold; therefore, this
final rule does not apply these requirements below the substantial
bundling threshold.
5. Outside the Scope of the Rule
Comment: One respondent questioned whether information is being
withheld from the proposed rule. Another respondent stated that SBA
procurement center representatives often disagree with the bundling
justification but sign form 2579 despite their opposition. The
respondent further stated that small business subcontractors are not
being utilized by large businesses given that there is ``no punishment
for a large not subcontracting'' and no incentive for large businesses
to comply with subcontracting goals beyond their initial proposal
submission. Additionally, the respondent stated that bundling has been
prohibited in Federal acquisition and recommends the following actions:
<bullet> Allow small businesses to be involved in the ``crafting of
bundling efforts'' given that ``large [businesses] are involved in the
crafting of the bundling effort;'' and
<bullet> Give SBA the ``power to do their jobs'' by allowing for a
process for the procurement center representative to disagree with the
bundling effort.
Response: The respondents' comments are outside the scope of this
FAR rule. The Councils note that FAR 19.502-8 addresses the process for
SBA PCRs to appeal the contracting officer's rejection of SBA's
recommendation.
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 does not create new solicitation provisions or contract
clauses or impact any existing provisions or clauses.
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, this rule
was not subject to review under section 6(b) of E.O. 12866, Regulatory
Planning and Review, dated September 30, 1993.
V. Congressional Review Act
As required by the Congressional Review Act (5 U.S.C. 801-808)
before an interim or final rule takes effect, DoD, GSA, and NASA will
send the rule and the ``Submission of Federal Rules Under the
Congressional Review Act'' form to each House of the Congress and to
the Comptroller General of the United States. A major rule cannot take
effect until 60 days after it is published in the Federal Register. The
Office of Information and Regulatory Affairs (OIRA) in the Office of
Management and Budget has determined that this is not a major rule
under 5 U.S.C. 804.
VI. Regulatory Flexibility Act
DoD, GSA, and NASA have prepared a Final Regulatory Flexibility
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5
U.S.C. 601-612. The FRFA is summarized as follows:
This rule is necessary to implement section 863 of the National
Defense Authorization Act for 2016 (Pub. L. 114-92, codified at 15
U.S.C. 644(e)(3) and 15 U.S.C. 657q(c)(2)), and the Small Business
Administration (SBA) implementing regulations. Section 863 requires
the head of a contracting agency to publish a notice on a public
website within 7 days of making the determination that an
acquisition plan involves a substantial bundling of contract
requirements. Additionally, section 863 requires the senior
procurement executive or chief acquisition officer to publish a
notice on a public website that consolidation of contract
requirements is necessary and justified. For substantial bundling
and for consolidation, the agency may not issue the solicitation any
earlier than 7 days after publication of the notices described
above. The agency must also publish the justification along with the
solicitation. The objective of this rule is to amend the FAR to
require that a notice of substantial bundling or of a notice of
consolidation be published on the Governmentwide Point of Entry, as
required in the SBA final rule. This section also contains
references to the required content of the consolidation
determination (at FAR 7.107-2) and the substantial bundling
determination (at FAR 7.107-4).
No public comments were received in response to the initial
regulatory flexibility analysis.
This rule may have a positive economic impact on any small
entity that is interested in participating in Federal procurement.
By posting justifications and notices of upcoming procurements that
are planned to be substantially bundled or consolidated, small
business concerns are made aware of potential subcontracting
opportunities and possibilities for participating in joint ventures
or small business teaming arrangements, which will help small
businesses increase their competitiveness. The System for Award
Management shows 315,655 entities that are small business concerns
under at least one North American Industry Classification System
code.
This rule does not include any new reporting, recordkeeping, or
other compliance requirements for any small entities.
There are no known significant alternative approaches to the
rule that would meet the stated objectives of the applicable
statute.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
SBA.
VII. Paperwork Reduction Act
This 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. 3501-3521).
[[Page 61040]]
List of Subjects in 48 CFR Parts 5 and 7
Government procurement.
William F. Clark,
Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA are amending 48 CFR parts 5 and 7 as
set forth below:
0
1. The authority citation for 48 CFR parts 5 and 7 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 5--PUBLICIZING CONTRACT ACTIONS
0
2. Amend section 5.205 by revising paragraph (g) to read as follows:
5.205 Special Situations.
* * * * *
(g) Notifications to the public regarding consolidation, bundling,
or substantial bundling. (1) For the requirement to publish a
notification of consolidation or substantial bundling of contract
requirements, see 7.107-5(c) and (d).
(2) The agency is encouraged to provide notification of the
rationale for any bundled requirement to the GPE before issuing the
solicitation of any bundled requirement (see 7.107-5(b)).
PART 7--ACQUISITION PLANNING
7.105 [Amended]
0
3. Amend section 7.105 by removing from paragraph (b)(16) the term
``GPE'' and adding ``Governmentwide point of entry (GPE)'' in its
place.
7.107-1 [Amended]
0
4. Amend section 7.107-1 by removing from paragraph (a) the phrase
``7.107-3 and 7.107-4'' and adding ``7.107-3, 7.107-4, and 7.107-5'' in
its place.
7.107-2 [Amended]
0
5. Amend section 7.107-2 by--
0
a. Removing from paragraph (a) introductory text the phrases ``senior
procurement executive'' and ``chief acquisition officer'' and adding
``senior procurement executive (SPE)'' and ``chief acquisition officer
(CAO)'' in their places, respectively;
0
b. Removing from paragraph (b) the phrases ``senior procurement
executive or chief acquisition officer'' and ``subsection'' and adding
``SPE or CAO'' and ``section'' in their places, respectively;
0
c. Removing from paragraph (d)(3) the phrase ``senior procurement
executive or chief acquisition officer'' and adding ``SPE or CAO'' in
its place;
0
d. Removing from paragraph (e)(1) introductory text the word
``subsection'' wherever it appears and adding ``section'' in its place;
0
e. Removing from paragraph (e)(1)(i) the word ``subsection'' and adding
``section'' in its place; and
0
f. Removing from paragraph (e)(2)(i) the phrase ``senior procurement
executive'' and adding ``SPE'' in its place.
0
6. Amend section 7.107-5 by--
0
a. Revising paragraph (b);
0
b. Redesignating paragraphs (c) and (d) as paragraphs (e) and (g) and
adding new paragraphs (c) and (d) and paragraph (f); and
0
c. Removing from the newly redesignated paragraph (g) ``Public
notification'' and adding ``Notification to public'' in its place.
The revision and additions read as follows:
7.107-5 Notifications.
* * * * *
(b) Notification to the public of rationale for bundled
requirement. The agency is encouraged to provide notification of the
rationale for any bundled requirement to the GPE, before issuance of
the solicitation (see 5.201).
(c) Notification to the public of consolidation of contract
requirements. The SPE or CAO shall publish in the GPE--
(1) A notice that the agency has determined a consolidation of
contract requirements is necessary and justified (see 7.107-2) no later
than 7 days after making the determination; the solicitation may not be
publicized prior to 7 days after publication of the notice of the
agency determination; and
(2) The determination that consolidation is necessary and justified
with the publication of the solicitation. See 7.107-2 for the required
content of the determination.
(d) Notification to the public of substantial bundling of contract
requirements. The head of the agency shall publish in the GPE--
(1) A notice that the agency has determined that a procurement
involves substantial bundling (see 7.107-4) no later than 7 days after
such determination has been made; the solicitation may not be
publicized prior to 7 days after the publication of the notice of the
determination; and
(2) The rationale for substantial bundling with the publication of
the solicitation. The rationale is the information required for
inclusion in the acquisition strategy at 7.107-4(b).
* * * * *
(f) Annual notification to the public of the rationale for bundled
requirements. The agency shall publish on its website a list and
rationale for any bundled requirement for which the agency solicited
offers or issued an award. The notification shall be made annually
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).
* * * * *
[FR Doc. 2021-22145 Filed 11-3-21; 8:45 am]
BILLING CODE 6820-EP-P
</pre><script data-cfasync="false" src="/cdn-cgi/scripts/5c5dd728/cloudflare-static/email-decode.min.js"></script></body>
</html>Indexed from Federal Register on November 4, 2021.
This is legal information, not legal advice. Laws vary by jurisdiction and change frequently. Always verify current law with official sources and consult a licensed attorney in your jurisdiction for advice on your specific situation.