SUPPLEMENTARY INFORMATION:

A. Background

Pursuant to Section 5112 of the Clinger-Cohen Act of 1996 (40 U.S.C. 11302), the Office of Management and Budget (OMB) is responsible for improving the acquisition and use of information technology (IT) by the Federal Government and designating Executive Agents for Governmentwide acquisitions of IT. To ensure that the Federal Government is maximizing its buying power to achieve the cost savings and favorable terms and conditions for commercial software, OMB created the SmartBUY initiative. GSA is designated as the Executive Agent for the SmartBUY initiative.

This rule proposes to amend the FAR to ensure SmartBUY is considered during acquisition planning, and prescribes the policies and procedures for using SmartBUY enterprise agreements.

This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

The Councils do not expect this proposed 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., because the rule applies to commercial agreements under the SmartBUY Program that are based on existing negotiated contracts. These agreements direct contracting officers to consider established contracting vehicles. Small businesses have participated in the SmartBuy Program to date. In fact, three of the six existing agreements are with small businesses.

An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Part 7, 8, 12, and 39 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 2005-014), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed changes to the FAR do not impose information collection requirements that require the approval of the Office of Management and Budget under 44 U.S.C. 3501, et seq.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 7, 8, 12, and 39 as set forth below:

1. The authority citation for 48 CFR parts 7, 8, 12, and 39 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

2. Amend section 7.103 by adding paragraph (v) to read as follows:

(v) Ensuring that agency planners fulfill requirements for commercial software or related services, such as software maintenance, in accordance with the SmartBUY program (see FAR Subpart 8.9).

3. Amend section 7.105 by adding paragraph (b)(4)(ii)(B)( 3) to read as follows:

(b) * * *

(4) * * *

(ii) * * *

(B) * * *

( 3) Ordering through a SmartBUY agreement leverages Government user volume and achieves a substantial price discount.

4. Add subpart 8.9 to read as follows:

This subpart prescribes the policies and procedures for acquisition of commercial software or related services, such as software maintenance, through ( printed page 61605) the Governmentwide Enterprise Software Program, also known as SmartBUY.

As used in this subpart—

Enterprise software agreement (ESA) means an agreement established for agencies to use to acquire designated commercial software or related services, such as software maintenance.

Software maintenance means activities performed and/or services provided by the original equipment manufacturer (OEM) as standard services to keep software functioning to the commercial specification, at established catalog or market prices, e.g., the right to receive and use upgraded versions of software, updates, and revisions.

Software product manager means the Government official who manages an enterprise software agreement.

SmartBUY is a consolidated purchasing program for the acquisition of commercial software or related services, such as software maintenance. SmartBUY is designed to provide all agencies, regardless of their size, the greatest price discounts available to the Federal Government. The SmartBUY Software Program (see website at http://www.gsa.gov/​smartbuy) promotes the use of Enterprise Software Agreements (ESAs) with contractors, called SmartBUY agreements, that allow the Government to obtain favorable terms and pricing for commercial software or related services, such as software maintenance.

Prior to issuing contracts for commercial software or related services, such as software maintenance, agencies shall review the SmartBUY agreements at http://www.gsa.gov/​smartbuy or http://www.esi.mil. Federal agencies shall place an order to fulfill requirements for commercial software or related services, such as software maintenance, when a SmartBUY agreement is available and is applicable to the agency's requirement and volume.

(a) The contracting officer or other ordering official must review the terms, conditions, and prices using market research or other procurement practices to determine if commercial software or related services, such as software maintenance, is available through a SmartBUY agreement.

(b) When the terms, conditions, and prices represent a best value to the Government, the contracting officer or other ordering official shall place an order to fulfill the requirement for commercial software or related services, such as software maintenance, through a SmartBUY agreement.

(c) When an existing SmartBUY agreement does not represent the best value to the Government, the contracting officer or other ordering official should allow the contractor an opportunity to provide the same or a better value under the SmartBUY agreement before using alternate procurement methods. In such cases, the contracting officer or other ordering official should notify the SmartBUY program office Software Product Manager of specific concerns, so that the SPM can take action to potentially improve an existing SmartBUY agreement's terms, conditions or prices through the SmartBUY website.

(d) When an available SmartBUY agreement will not be used, the contracting officer or other ordering official must comply with the approval and notification procedures in 8.905.

(e) When the required commercial software or related services, such as software maintenance, is no[0]t covered by a SmartBUY agreement, the contracting officer may fulfill a requirement using other procurement methods.

(a) The contracting officer or ordering official must get approval from the agency Senior Procurement Executive and the agency Chief Information Officer, or as provided by agency procedures, when not using an available SmartBUY agreement. The approval shall—

(1) Describe the agency's requirement;

(2) Explain the reason for not using an existing SmartBUY agreement; and

(3) Describe how the agency will satisfy its needs for commercial software and negotiate a fair and reasonable price.

(b) The contracting officer or ordering official must notify GSA when an available SmartBUY agreement is not used to acquire commercial software or related services, such as software maintenance, by sending a copy of the approval to GSA at— General Services Administration, Deputy Associate Administrator, Office of Technology Strategy (ME), 1800 F Street, NW, Washington, DC 20406; or send via e-mail to SmartBUYwaiver@gsa.gov.

5. Amend section 12.212 by adding paragraph (c) to read as follows:

(c) Acquisition officials shall consider using SmartBUY Enterprise Software Agreements when acquiring commercial software or related services, such as software maintenance (see FAR Subpart 8.9).

6. Amend section 39.101 by revising paragraph (b) to read as follows:

(b)(1) In acquiring information technology, agencies shall identify their requirements pursuant to—

(i) OMB Circular A-130, including consideration of security of resources, protection of privacy, national security and emergency preparedness, accommodations for individual with disabilities, and energy efficiency; and

(ii) FAR 8.903 and the availability of a SmartBUY Agreement.

(2) When developing an acquisition strategy, contracting officers should consider the rapidly changing nature of information technology through market research (see Part 10) and the application of technology refreshment techniques.