Rule2023-08198
Federal Acquisition Regulation: Exemption of Certain Contracts From the Periodic Inflation Adjustments to the Acquisition-Related Thresholds
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
April 26, 2023
Effective
May 26, 2023
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 2022 that provides a statutory exception to the periodic inflation adjustments of acquisition-related thresholds for certain bond requirements.
Full Text
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<title>Federal Register, Volume 88 Issue 80 (Wednesday, April 26, 2023)</title>
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[Federal Register Volume 88, Number 80 (Wednesday, April 26, 2023)]
[Rules and Regulations]
[Pages 25476-25477]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-08198]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 1
[FAC 2023-03, FAR Case 2022-002, Item II; Docket No. FAR-2022-0002,
Sequence No. 1]
RIN 9000-AO39
Federal Acquisition Regulation: Exemption of Certain Contracts
From the Periodic Inflation Adjustments to the Acquisition-Related
Thresholds
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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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 2022 that provides a
statutory exception to the periodic inflation adjustments of
acquisition-related thresholds for certain bond requirements.
DATES: Effective May 26, 2023.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Marissa Ryba, Procurement Analyst, at 314-586-1280 or by email at
<a href="/cdn-cgi/l/email-protection#307d5142594343511e62495251705743511e575f46"><span class="__cf_email__" data-cfemail="87cae6f5eef4f4e6a9d5fee5e6c7e0f4e6a9e0e8f1">[email protected]</span></a>. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat Division at
202-501-4755 or <a href="/cdn-cgi/l/email-protection#185f4b594a7d7f4b7d7b587f6b79367f776e"><span class="__cf_email__" data-cfemail="9fd8ccdecdfaf8ccfafcdff8ecfeb1f8f0e9">[email protected]</span></a>. Please cite FAC 2023-03, FAR Case
2022-002.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule at 87 FR 58300 on
September 26, 2022, to implement section 861 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81),
which provides for a statutory exception to the periodic inflation
adjustments of acquisition-related thresholds under 41 U.S.C. 1908.
Three respondents submitted comments on 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. All of the respondents expressed support
for the rule because maintaining the current thresholds for performance
and payment bonds ensures continued payment protections benefiting
small businesses. The Councils acknowledge this support. No changes
were made to the final rule as a result of public comments.
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Services and Commercial Products,
Including Commercially Available Off-the-Shelf (COTS) Items
This rule does not create new solicitation provisions or contract
clauses or revise the text of any existing provisions or clauses. The
rule does not change any current requirements in the provisions or
clauses but does prevent future periodic inflation adjustments to
acquisition-related thresholds.
IV. Expected Impact of the Rule
This rule does not have a significant impact on the Government or
industry because this rule maintains acquisition-related thresholds
that have been in the FAR for several years without significant change.
The FAR threshold for performance and payment bonds at FAR 28.102
had one escalation adjustment in 2010, which raised the threshold by
$50,000 from $100,000 and has since remained unchanged. The FAR
threshold for alternatives to payment bonds at FAR 28.102 is currently
$35,000; it was escalated twice, one in 2006 and again in 2015. Each
adjustment raised the threshold by $5,000 starting from $25,000. Since
the second adjustment, this threshold has also remained unchanged.
Because the acquisition-related thresholds under FAR 28.102 have
remained mostly unchanged, there is little expectation for future
increases or changes that would affect Government and industry. There
is also no expected cost impact of this rule since the acquisition-
related thresholds will remain the same. There may be some benefit of
consistency to the public by ensuring that the thresholds remain the
same.
[[Page 25477]]
V. 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.
VI. 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.
VII. 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:
DoD, GSA, and NASA are amending the Federal Acquisition
Regulation (FAR) to implement section 861 of the National Defense
Authorization Act (NDAA) for Fiscal Year (FY) 2022 (Pub. L. 117-81)
that provides a statutory exception to the periodic inflation
adjustments of acquisition-related thresholds for certain bond
requirements.
The objective of the final rule is to retain the current dollar
thresholds for performance and payments bonds as well as the
threshold for alternatives to such bonds.
There were no significant issues raised by the public in
response to the initial flexibility analysis provided in the
proposed rule.
The final rule applies to small entities performing construction
services for the Government; however, the impact is expected to be
de minimis. Contract actions with a value between $35,000 and
$150,000 will still require an alternative to payment bonds for
payment protection, and those with a value exceeding $150,000 will
still require performance and payment bonds. The rule makes
permanent the thresholds that have been in place for several years,
resulting in no changes for any entity performing construction
services.
Data obtained from the Federal Procurement Data System (FPDS)
for FY 2019, 2020, and 2021 indicates that an average of 678 unique
small entities received an estimated 1,219 awards annually that
require alternatives to payment bonds. FPDS data also indicates that
an average of 1,340 unique small entities received an estimated
2,706 awards that are subject to performance and payment bonds
annually. Approximately 2,018 (678 + 1,340) unique small entities
will continue to comply with current bond requirements as a result
of this final rule.
The final rule does not include additional reporting or record
keeping requirements.
There are no available alternatives to the final rule to
accomplish the desired objective of the 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
the Small Business Administration.
VIII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C 3501-3521) applies to the
information collection described in this rule; however, these changes
to the FAR do not impose additional information collection requirements
to the paperwork burden previously approved under OMB Control Number
9000-0045, Bid Guarantees, Performance and Payment Bonds, and
Alternative Payment Protection.
List of Subjects in 48 CFR Part 1
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 1 as set forth
below:
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
0
1. The authority citation for 48 CFR part 1 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 4 and 10 U.S.C.
chapter 137 legacy provisions (see 10 U.S.C. 3016); and 51 U.S.C.
20113.
0
2. Amend section 1.109 by revising paragraph (c)(1) to read as follows:
1.109 Statutory acquisition-related dollar thresholds--adjustment for
inflation.
* * * * *
(c) * * *
(1) 40 U.S.C. chapter 31--
(i) Subchapter III, Bonds; and
(ii) Subchapter IV, Wage Rate Requirements (Construction);
* * * * *
[FR Doc. 2023-08198 Filed 4-25-23; 8:45 am]
BILLING CODE 6820-EP-P
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