Federal Acquisition Regulation; Task and Delivery Order Contracts

DEPARTMENT OF DEFENSE

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 6, 16 and 52

[FAR Case 94-711]

Federal Acquisition Regulation; Task and Delivery Order Contracts

AGENCIES: Department of Defense (DOD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council are proposing to amend Federal

Acquisition Regulations (FAR) to implement the statutory requirements

of the Federal Acquisition Streamlining Act with regard to task and

delivery order contracts. This regulatory action is subject to Office

of Management and Budget review under Executive Order 12866, dated

September 30, 1993.

DATES: Comment Due Date: Comments should be submitted on or before May

15, 1995 to be considered in the formulation of a final rule.

Public Meeting: A public meeting will be held on April 13, 1995, at

1:00 p.m.

Oral/Written Statements: Views to be presented at the public

meeting should be sent, in writing, to the FAR Secretariat, at the

address given below, not later than April 10, 1995.

ADDRESSES: Interested parties should submit written comments to:

General Services Administration, FAR Secretariat (VRS), 18th & F

Streets, NW, Room 4037, Washington, DC 20405, Telephone: (202) 501-

4755.

The public meeting will be held at: General Services Administration

Auditorium, 18th & F Streets, NW, First Floor, Washington, DC 20405.

Please cite FAR case 94-711 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: Mr. Ed McAndrew, Special Contracting

Team Leader, at (202) 501-1474 in reference to this FAR case. For

general information, contact the FAR Secretariat, Room 4037, GSA

Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 94-

711.

SUPPLEMENTARY INFORMATION:

A. Background

The Federal Acquisition Streamlining Act of 1994 (Pub. L. 103-355)

(the Act) provides authorities that streamline the acquisition process

and minimize burdensome government-unique requirements. Major changes

can be expected in the acquisition process as a result of the Act's

implementation.

FAR Case 94-711

This notice announces FAR revisions developed under FAR case 94-711

which implement the requirements of sections 1004 and 1054, of the Act.

Both of these sections contain statutory requirements for the award of

task and delivery order contracts, the issuance of orders under such

contracts and the award of such contracts for advisory and assistance

services.

Public Meeting. The FAR Council is interested in an exchange of

ideas and opinions on this rule. For that reason, the FAR Council is

conducting a series of public meetings. A public meeting will be held

on April 13, 1995, to enable the public to present its views on this

rule. This rule will only be discussed at the public meeting session.

Any subsequent public meetings will be devoted to other revisions to

the FAR. The public is encouraged to furnish its views; the Council

anticipates that public comments will be very helpful in formulating

final rules.

Persons or organizations wishing to make presentations will be

allowed 10 minutes each, provided they notify the FAR Secretariat at

(202) 501-4755 and submit written statements of the presentation by

April 10, 1995. Persons or organizations with similar positions are

encouraged to select a common spokesman for presentation of their

views. This meeting, in conjunction with this Federal Register notice

soliciting public comments on the rule, will be the only opportunity

for the public to present its views.

B. Regulatory Flexibility Act

The proposed changes may 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., because the rule may

result in more opportunities for small businesses to compete for awards

as a result of the multiple award preference. There is a potential

negative impact resulting from consolidation of contract requirements

under a task or delivery order contract; however, it is expected that

this negative impact could be mitigated by an increase in the

opportunities for small businesses to receive subcontracts. Small

businesses could also form joint ventures to bid on larger contract

requirements. An Initial Regulatory Flexibility Analysis (IRFA) has

been prepared and will be provided to the Chief Counsel for Advocacy

for the Small Business Administration. Comments from small entities

concerning the affected FAR subpart will be considered in accordance

with 5 U.S.C. 610. Such comments must be submitted separately and

should cite 5 U.S.C. 601, et seq. (FAR Case 94-711), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed

changes to the FAR do not impose recordkeeping or information

collection requirements, or collections of information from offerors,

contractors, or members of the public which require the approval of the

Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 6, 16 and 52

Government procurement.

Dated: March 9, 1995.

Barry Cohen,

Project Manager for the Implementation of the Federal Acquisition

Streamlining Act of 1994.

Therefore, it is proposed that 48 CFR Parts 6, 16 and 52 be amended

as set forth below:

PART 6--COMPETITION REQUIREMENTS

1. The authority citation for 48 CFR Parts 6, 16 and 52 continues

to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

2. Section 6.001 is amended by adding paragraph (f) to read as

follows:

6.001 Applicability.

* * * * *

(f) Orders placed against task order and delivery order contracts

entered into pursuant to 48 CFR (FAR) part 16, subpart 16.5.

PART 16--TYPES OF CONTRACTS

3. Section 16.500 is added to read as follows:

16.500 Scope of subpart.

This subpart prescribes policies and procedures for making awards

of indefinite delivery contracts and establishes a preference scheme

for [[Page 14347]] making multiple awards of delivery order contracts

and task order contracts. This subpart does not limit the use of other

than full and open competitive procedures authorized by 48 CFR (FAR)

part 6. The preference scheme established by this subpart and the

limitations on the use of contracts for advisory and assistance

services do not apply to contracts subject to the procedures of 48 CFR

(FAR) parts 36, 38, 39 and 41.

16.501 [Redesignated and amended]

4. Section 16.501 is redesignated as 16.501-1 and is amended by

removing paragraph (c).

5. Section 16.501-2 is added to read as follows:

16.501-2 Definitions.

As used in this subpart--

Advisory and assistance services has the same meaning as set forth

in 48 CFR (FAR) 37.201.

Delivery order contract means a contract for supplies that does not

procure or specify a firm quantity of supplies (other than a minimum or

maximum quantity) and that provides for the issuance of orders for the

delivery of supplies during the period of the contract.

Task order contract means a contract for services that does not

procure or specify a firm quantity of services (other than a minimum or

maximum quantity) and that provides for the issuance of orders for the

performance of tasks during the period of the contract.

6. Section 16.503 is amended in the introductory text of paragraph

(a) by removing the word ``specific'', and by revising paragraphs

(a)(2) and (b) and adding (a)(3) and (d) to read as follows:

16.503 Requirements contracts.

(a) * * *

(2) In addition to other required provisions and clauses, a

solicitation for a requirements contract shall--

(i) Specify the period of the contract including the number of

options and the period for which the contract may be extended under

each option, if any;

(ii) Specify the maximum quantity or dollar value of services or

supplies to be acquired under the contract;

(iii) Include a statement of work, specifications or other

description that reasonably describes the general scope, nature,

complexity, and purpose of the supplies or services to be acquired

under the contract in a manner that will enable a prospective offeror

to decide whether to submit an offer; and

(iv) State the procedures that will be used in issuing orders.

(3) The contract may specify maximum or minimum quantities that the

Government may order under each individual order and the maximum that

it may order during a specified period of time.

(b) Application. A requirements contract may be appropriate for

acquiring any supplies or services when the Government anticipates

recurring requirements but cannot predetermine the precise quantities

of supplies or services that designated Government activities will need

during a definite period. Funds are obligated by each delivery order,

not by the contract itself.

* * * * *

(d) Limitations on use of requirements contracts for advisory and

assistance services in excess of three years and $10,000,000. (1)

Except as provided in 16.503(d)(2), no solicitation may be issued for a

requirements contract for advisory and assistance services in excess of

three years and $10,000,000 (including all options) which does not

provide for multiple awards, unless the head of the agency or designee

determines in writing that the services required are so unique or

highly specialized that it is not practicable to award more than one

contract.

(2) The limitation at 16.503(d)(1) is not applicable to the

acquisition of supplies or services that includes the acquisition of

advisory and assistance services if the head of an agency or designee

determines that the advisory and assistance services are necessarily

incident to, and not a significant component of, the contract.

7. Section 16.504 is amended in the introductory text of paragraph

(a) by removing the word ``specific'', and by adding paragraphs (a)(4)

and (c) to read as follows:

16.504 Indefinite-quantity contracts.

(a) * * *

(4) In addition to other required provisions and clauses, a

solicitation for an indefinite-quantity contract shall--

(i) Specify the period of the contract including the number of

options and the period for which the contract may be extended under

each option, if any;

(ii) Specify the total minimum and maximum quantity or dollar value

of services or supplies to be acquired under the contract;

(iii) Include a statement of work, specifications, or other

description, that reasonably describes the general scope, nature,

complexity, and purpose of the supplies or services to be acquired

under the contract in a manner that will enable a prospective offeror

to decide whether to submit an offer;

(iv) State the procedures that will be used in issuing orders;

(v) If multiple awards may be made, include the provision at 48 CFR

(FAR) 52.216-27, Election to Award Single or Multiple Task Order

Contracts or Delivery Order Contracts, to notify offerors that more

than one contract may be awarded; and

(vi) If an award of a task order contract for advisory and

assistance services in excess of three years and $10,000,000 (including

all options) is anticipated, include the provision at 48 CFR (FAR)

52.216-28, Notice of Intent to Make Multiple Awards Under a Task Order

Contract for Advisory and Assistance Services That Exceeds Three Years

and $10,000,000, unless a determination to make a single award is made

under 16.504(c)(2)(i)(A).

* * * * *

(c) Multiple award preference--(1) General preference. Except for

indefinite quantity contracts for advisory and assistance services as

provided in 16.504(c)(2), the contracting officer shall, to the maximum

extent practicable, give preference to making multiple awards of

indefinite-quantity contracts under a single solicitation for the same

or similar supplies or services to two or more sources. In making a

determination as to whether multiple awards are appropriate, the

contracting officer shall exercise sound business judgment as part of

acquisition planning. Multiple awards should not be made when--

(i) Only one contractor is capable of providing performance at the

level of quality required because the supplies or services are unique

or highly specialized;

(ii) Based on the contracting officer's knowledge of the market and

consideration of the cost to the Government of administration of

multiple contracts, more favorable terms and conditions, including

pricing, will be provided if a single award is made;

(iii) The nature of the work to be performed under each order is

integrally related;

(iv) Making multiple awards would be inconsistent with other

provisions of law;

(v) The total estimated value of the contract is less than the

simplified acquisition threshold; or

(vi) The contracting officer determines that multiple awards would

not be in the best interests of the Government.

(2) Contracts for advisory and assistance services. (i) Except as

provided in 16.504(c)(2)(ii), if an indefinite quantity contract for

advisory and assistance services will not exceed three years and

$10,000,000, including all options, a contracting officer need

[[Page 14348]] not give preference to making multiple awards. If an

indefinite quantity contract for advisory and assistance services is to

exceed three years and $10,000,000, including all options, multiple

awards shall be made unless--

(A) The head of the agency or designee determines in writing, prior

to the issuance of the solicitation, that the services required under

the task order contract are so unique or highly specialized that it is

not practicable to award more than one contract;

(B) The head of the agency or designee determines in writing, after

the evaluation of offers, that only one offeror is capable of providing

the services required at the level of quality required; or

(C) Only one offer is received.

(ii) The requirements of 16.504(c)(2)(i) are not applicable to the

acquisition of supplies or services that includes the acquisition of

advisory and assistance services if the head of an agency or designee

determines that the advisory and assistance services are necessarily

incident to, and not a significant component of, the contract.

8. Sections 16.505 and 16.506 are redesignated as 16.506 and

16.505, respectively, and the newly-redesignated 16.505 is revised and

the newly-redesignated 16.506 is amended by revising the heading and

adding paragraphs (f) and (g) to read as follows:

16.505 Ordering.

(a) General. (1) When placing orders under this subpart, a separate

notice under 48 CFR (FAR) 5.201 is not required.

(2) The ordering officer shall ensure that individual orders

clearly describe all services to be performed or supplies to be

delivered. The ordering officer shall also ensure that orders are

within the scope, period, or maximum value of the contract.

(3) The contracting officer shall include in the contract Schedule

the names of the activity or activities authorized to issue orders.

(4) If appropriate, authorization for placing oral orders may be

included in the contract Schedule; provided, that procedures have been

established for obligating funds and that oral orders are confirmed in

writing.

(5) Orders may be placed by written telecommunication or other

electronic means, if provided for in the contract.

(6) Orders placed under indefinite-delivery contracts shall contain

the following information:

(i) Date of order.

(ii) Contract number and order number.

(iii) Item number and description, quantity, and unit price.

(iv) Delivery or performance date.

(v) Place of delivery or performance (including consignee).

(vi) Packaging, packing, and shipping instructions, if any.

(vii) Accounting and appropriation data.

(viii) Any other pertinent information.

(7) No protest under 48 CFR (FAR) part 33 is authorized 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.

(b) Orders under multiple award task or delivery order contracts.

(1) Except as provided for in 16.505(b)(2), for orders issued under

multiple delivery order contracts or multiple task order contracts,

each awardee shall be provided a fair opportunity to be considered for

each order in excess of $2,500. In determining the procedures for

providing awardees a fair opportunity to be considered for each order,

contracting officers shall exercise broad discretion and may consider

factors such as past performance, quality of deliverables, cost

control, price, cost, or other factors that the contracting officer, in

the exercise of sound business judgment, believes are relevant to the

placement of orders. Such procedures need not comply with the

competition requirements of 48 CFR (FAR) part 6. The contracting

officer need not request written proposals or conduct discussions with

multiple contractors before issuing orders unless the contracting

officer determines such actions to be necessary.

(2) Awardees need not be given a fair opportunity to be considered

for a particular order in excess of $2,500 if the contracting officer

determines that--

(i) The agency need for such services or supplies is of such

urgency that providing such opportunity would result in unacceptable

delays;

(ii) Only one such contractor is capable of providing such services

or supplies required at the level of quality required because the

services or supplies ordered are unique or highly specialized;

(iii) The order should be issued on a sole-source basis in the

interest of economy and efficiency as a logical follow-on to an order

already issued under the contract; or

(iv) It is necessary to place an order to satisfy a minimum

guarantee.

(3) Soliciting offers from one or more awardees under a multiple

award task order contract or delivery order contract shall satisfy the

``competing independently'' requirements of 48 CFR (FAR) 15.804-

3(b)(3).

(4) The head of the agency shall designate a task order contract

and delivery order contract ombudsman who shall be responsible for

reviewing complaints from contractors on task order contracts and

delivery order contracts. The ombudsman shall review complaints from

the contractors and ensure that all contractors are afforded a fair

opportunity to be considered, consistent with the procedures in the

contract. The ombudsman shall be a senior agency official who is

independent of the contracting officer and may be the agency's

competition advocate.

(c) Limitation on ordering period for task order contracts for

advisory and assistance services. (1) Except as provided for in

16.505(c)(2), the ordering period of a task order contract for advisory

and assistance services, including all options or modifications, may

not exceed five years unless a longer period is specifically authorized

in a law that is applicable to such a contract. Notwithstanding the

five year limitation or the requirements of 48 CFR (FAR) part 6, a task

order contract for advisory and assistance services may be extended on

a sole-source basis only once for a period not to exceed six months

if--

(i) The head of the agency or designee determines that the award of

a follow-on contract is delayed by circumstances that were not

reasonably foreseeable at the time the initial contract was entered

into; and

(ii) The extension is necessary to ensure continuity of services

pending the award of the follow-on contract.

(2) The limitation on ordering period contained in 16.505(c)(1) is

not applicable to the acquisition of supplies or services that includes

the acquisition of advisory and assistance services if the head of an

agency or designee determines that the advisory and assistance services

are necessarily incident to, and not a significant component of, the

contract.

16.506 Solicitation provisions and contract clauses.

* * * * *

(f) The contracting officer shall insert the provision at 48 CFR

(FAR) 52.216-27, Election to Award Single or Multiple Task Order

Contracts or Delivery Order Contracts, in solicitations for task or

delivery order contracts that may result in multiple contract awards.

This provision shall not be used for advisory and assistance services

contracts.

(g) In accordance with 16.504(a)(4)(vi), the contracting officer

[[Page 14349]] shall insert the provision at 48 CFR (FAR) 52.216-28,

Notice of Intent to Make Multiple Awards Under a Task Order Contract

for Advisory and Assistance Services That Exceeds Three Years and

$10,000,000, in solicitations for task order contracts for advisory and

assistance services that exceed three years and $10,000,000 (including

all options) provided that no determination is made under

16.504(c)(2)(i)(A).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

9. Section 52.216-18 is amended in the introductory text by

removing ``16.505(a)'' and inserting ``16.506(a)'' in its place, and

revising the clause date and paragraphs (b) and (c) to read as follows:

52.216-18 Ordering.

* * * * *

ORDERING (XXX 1995)

* * * * *

(b) All delivery orders or task orders are subject to the terms

and conditions of this contract. In the event of conflict between a

delivery order or task order and this contract, the contract shall

control.

(c) If mailed, a delivery order or task order is considered

``issued'' when the Government deposits the order in the mail.

Orders may be issued orally, by written telecommunications, or by

other electronic means only if authorized in the Schedule.

(End of clause)

10. Section 52.216-19 is amended by revising the section heading,

introductory text and clause heading and date to read as follows:

52.216-19 Order Limitations.

As prescribed in 16.506(b), insert a clause substantially the same

as follows in solicitations and contracts when a definite-quantity

contract, a requirements contract, or an indefinite-quantity contract

is contemplated:

ORDER LIMITATIONS (XXX 1995)

* * * * *

52.216-20 [Amended]

11. Section 52.216-20 is amended in the introductory text by

removing ``16.505(c)'' and inserting ``16.506(c)'' in its place,

revising the clause date to read ``(XXX 1995)'', and in the first

sentence of paragraph (c) by removing the word ``Delivery-''.

52.216-21 [Amended]

12. Section 52.216-21 is amended in the introductory text by

removing ``16.505(d)'' and inserting ``16.506(d)'' in its place; in the

clause heading by removing the date ``(APR 1984)'' and inserting ``(XXX

1995);'' in the second sentence of paragraph (b) by removing the word

``Delivery-''; and in the introductory texts of Alternates III and IV

by removing the phrase ``or labor surplus area'' and revising the

Alternate dates to read ``(XXX 1995)''.

52.216-22 [Amended]

13. Section 52.216-22 is amended in the introductory text by

removing ``16.505(e)'' and inserting ``16.506(e)'' in its place; in the

clause heading by removing the date ``(APR 1984)'' and inserting ``(XXX

1995)'' in its place; and in the first sentence of paragraph (c) by

removing the word ``Delivery-''.

14. Section 52.216-27 is added to read as follows:

52.216-27 Election to Award Single or Multiple Task Order Contracts or

Delivery Order Contracts.

As prescribed in 16.506(f), insert the following provision:

ELECTION TO AWARD SINGLE OR MULTIPLE TASK ORDER CONTRACTS OR DELIVERY

ORDER CONTRACTS (XXX 1995)

The Government may elect to award a single delivery order

contract or task order contract or to award multiple task order

contracts or delivery order contracts for the same or similar

services or supplies to two or more sources under this solicitation.

(End of provision)

15. Section 52.216-28 is added to read as follows:

52.216-28 Notice of Intent to Make Multiple Awards Under a Task Order

Contract for Advisory and Assistance Services That Exceeds Three Years

and $10,000,000.

As prescribed in 16.506(g), insert the following provision:

NOTICE OF INTENT TO MAKE MULTIPLE AWARDS UNDER A TASK ORDER CONTRACT

FOR ADVISORY AND ASSISTANCE SERVICES THAT EXCEEDS THREE YEARS AND

$10,000,000 (XXX 1995)

The Government intends to award multiple contracts for the same

or similar advisory and assistance services to two or more sources

under this solicitation unless the Government determines, after

evaluation of offers, that only one offeror is capable of providing

the services at the level of quality required.

(End of provision)

[FR Doc. 95-6439 Filed 3-15-95; 8:45 am]

BILLING CODE 6820-34-P