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Federal Register / Vol. 86, No. 110 / Thursday, June 10, 2021 / Rules and Regulations II. Discussion and Analysis
DEPARTMENT OF DEFENSE

There were no public comments submitted in response to the proposed rule, and no changes were made to the final rule.

GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION

III. Applicability to Contracts at or Below the Simplified Acquisition Threshold and for Commercial Items, Including Commercially Available Offthe-Shelf Items
48 CFR Part 16
FAC 202106; FAR Case 2020004; Item II; Docket No. FAR20200004, Sequence No. 1
RIN 9000AO04

Federal Acquisition Regulation:
Application of Micro-Purchase Threshold to Task and Delivery Orders Department of Defense DoD, General Services Administration GSA, and National Aeronautics and Space Administration NASA.
ACTION: Final rule.
AGENCY:

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 2020 that raises the threshold for fair opportunity on certain task and delivery orders to the micro-purchase threshold.

SUMMARY:

DATES:

Effective: July 12, 2021.

Mr.
Michael O. Jackson, Procurement Analyst, at 2022084949 or Michaelo.jackson@gsa.gov for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 2025014755.
Please cite FAC 202106 and FAR Case 2020004.
SUPPLEMENTARY INFORMATION:
FOR FURTHER INFORMATION CONTACT:

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I. Background DoD, GSA, and NASA published a proposed rule at 85 FR 67327, on October 22, 2020, to implement section 826 of the National Defense Authorization Act NDAA for Fiscal Year FY 2020 Pub. L. 11692, which increases the threshold for requiring fair opportunity on orders under multipleaward contracts from $2,500 to the micro-purchase threshold. The fair opportunity to be considered at FAR
16.505b1 applies to orders over the threshold unless an exception at 16.505b2 applies. The threshold at FAR 16.505 is currently $3,500, as a result of inflation adjustments in accordance with FAR 1.109. The micropurchase threshold MPT is $10,000
FAR case 2018004 published on July 2, 2020, at 85 FR 40064.

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This final rule does not create any new provisions or clauses, nor does it change the applicability of any existing provisions or clauses included in solicitations and contracts valued at or below the simplified acquisition threshold, or for commercial items, including commercially available offthe-shelf items.
IV. Expected Impact of the Rule DoD, GSA, and NASA have performed an analysis for this final rule. This rule is expected to reduce the public burden because the threshold increase will reduce costs to submit an offer for the unsuccessful awardees who participate in fair opportunity competitions for orders under FAR part 16. DoD, GSA, and NASA recognize some awardees may be impacted by a reduction in the number of opportunities an awardee may have to receive an award of a delivery or task order through fair opportunity. Using Federal Procurement Data System FPDS data from FY 2017
through FY 2019, the average number of fair opportunity task or delivery orders under FAR part 16 procedures is approximately 9,800 orders annually.
DoD, GSA, and NASA estimate that the Government receives an average of three offers for each of the 9,800 task or delivery orders, resulting in an estimated 19,600 9,800 2
unsuccessful offers. There are costs to submit the estimated 19,600
unsuccessful offers, which will be eliminated by this rule.
DoD, GSA, and NASA recognize that the increase in the MPT in FAR Case 2018004 has resulted in an increased use of the Governmentwide commercial purchase card and a general reduction in the number of FAR part 16 delivery and task orders awarded between $3,500
and $10,000. According to FPDS, there were 12,911 fair opportunity FAR part 16 awards between $3,500 and $10,000
in FY 2017. In contrast, there were 6,421
awards in FY 2019; a decrease of almost 50%. This decrease can be attributed to the preference given to the Governmentwide commercial purchase card for procurements under the MPT.
While it is unclear whether there will be further decreases in the number of FAR

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part 16 fair opportunity awards, it is clear that the increased MPT
implemented by FAR Case 2018004
has already reduced the public and Government burden by approximately 50% by shifting procurements from FAR
part 16 delivery and task orders to Governmentwide commercial purchase cards.
DoD, GSA, and NASA expect the rule to also reduce burden on the Government and streamline procurements for FAR part 16 orders below the MPT. Contracting officers will not be required to review multiple offers to make award, resulting in time savings for each order awarded.
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 6b 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. 801808 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. 601612. The FRFA is summarized as follows:
This final rule amends the Federal Acquisition Regulation to implement section 826 of the National Defense Authorization Act NDAA for Fiscal Year FY 2020 Pub.
L. 11692, which raises the threshold for fair opportunity on certain task and delivery orders to the word-based, micro-purchase threshold.

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