Federal Acquisition Circular 2001-06
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13047-13049]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20mr02-21]
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Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 1, 2, et al.
Federal Acquistion Circular and Regulations; Final Rules
[[Page 13048]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Circular 2001-06; Introduction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final rules.
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SUMMARY: This document summarizes the Federal Acquisition Regulation
(FAR) rules agreed to by the Civilian Agency Acquisition Council and
the Defense Acquisition Regulations Council in this Federal Acquisition
Circular (FAC) 2001-06. A companion document, the Small Entity
Compliance Guide (SECG), follows this FAC. The FAC, including the SECG,
is available via the Internet at http://www.arnet.gov/far.
DATES: For effective dates and comment dates, see separate documents
which follow.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact the analyst whose name appears in the table below in
relation to each FAR case or subject area. Please cite FAC 2001-06 and
specific FAR case number(s). Interested parties may also visit our
website at http://www.arnet.gov/far.
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Item Subject FAR Case Analyst
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I. Commercial Items--Standard Form 1449 2000-012 Moss.
II. Definitions for "Contract 2000-402 Moss.
Action" and "Contracting Action".
III.Definitions for Sealed Bid and 2000-403 DeStefano.
Negotiated Procurements.
IV. Procurement Integrity Rewrite.. 1998-024 DeStefano.
V. Acquisition of Helium.......... 2000-008 Nelson.
VI HUBZone Program Applicability.. 2001-003 Cundiff.
VII.Application of Labor Clauses... 1999-612 Nelson.
VIIITechnical Amendments...........
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SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the
actual revisions and/or amendments to these FAR cases, refer to the
specific item number and subject set forth in the documents following
these item summaries.
FAC 2001-06 amends the FAR as specified below:
Item I--Commercial Items SF 1449 (FAR Case 2000-012)
Standard Form 1449, Solicitation/Contract/Order for Commercial
Items, is prescribed by the FAR for the acquisition of commercial
items. This final rule makes several minor revisions to the form,
including the addition of a block to indicate that the acquisition is a
HUBZone set-aside, the substitution of a NAICS code for the SIC code,
the notation that award is made only on the offeror's items
specifically listed in block 29, and the addition of several blocks in
the area of the form used as a receiving report by the Government. All
of the changes involve blocks that are completed by the Government.
Item II--Definitions for "Contract Action" and "Contracting
Action" (FAR Case 2000-402)
This final rule amends the FAR to provide for consistent use of the
term "contract action." The rule changes the term "contracting
action" to "contract action" throughout the FAR and makes other
editorial changes to clarify the text.
Item III--Definitions for Sealed Bid and Negotiated Procurements
(FAR Case 2000-403)
This final rule amends the FAR to clarify definitions that are used
for sealed bid and negotiated procurements. The final rule--
Moves the definitions of "bid sample" and "descriptive
literature" from FAR Part 14 to FAR 2.101 because the definitions
apply to more than one FAR part, e.g., Parts 14 and 15;
Amends those definitions and the definition of "offer"
in accordance with plain language guidelines;
Revises applicable provisions in FAR Part 52 to conform
with the new definitions;
Adds a new definition for "solicitation" at FAR 2.101;
and
Provides definitions for "bid" and "bidder" in FAR
Part 28 because, as used in that part, the terms address sealed bid and
negotiated acquisitions.
The rule clarifies terminology used in FAR 15.201(f), 15.609(e),
and 35.007(g). Where we mean an entity that is actively seeking a
contract, we use the term "prospective offeror." However, those cites
describe processes that are set up to ensure fair and open competition.
Therefore, any interested party is able to participate, including
parties that the Government has not yet identified. Therefore, the rule
uses the more general term "potential offeror."
Item IV--Procurement Integrity Rewrite (FAR Case 1998-024)
This final rule amends FAR parts 2, 3, 4, 9, 15, and 52 to rewrite
the procurement integrity coverage (the implementation of section 27 of
the Office of Federal Procurement Policy Act (41 U.S.C. 423) (more
commonly referred to as the Procurement Integrity Act)) in plain
language.
FAR 3.104 implements prohibitions, restrictions, and other
requirements of the Procurement Integrity Act that are placed on
certain agency officials that participate in Federal agency
procurements. However, other statutes and regulations also govern the
conduct of Government employees. While specific guidance pertaining to
the Procurement Integrity Act at FAR 3.104 does not implement these
other statutes and regulations, the rule does add guidance to alert
these agency officials that they should seek advice from agency ethics
officials before engaging in certain activities that could have serious
consequences, including criminal prosecution.
These revisions to FAR 3.104 do not change either the requirements
of the Procurement Integrity Act or change, in any manner, who is
covered by, or the activities covered in, Office of Government Ethics
regulations interpreting conflict of interest statutes.
Item V--Acquisition of Helium (FAR Case 2000-008)
This final rule revises FAR Subpart 8.5 and the clause at 52.208-8
to
[[Page 13049]]
implement the Department of the Interior final rule regarding helium
contracts that was published in the Federal Register at 63 FR 66760,
December 3, 1998. The final rule--
Changes the definitions;
Eliminates the requirement for certain contractors and
subcontractors to submit helium forecasts; and
Establishes the requirement that contractors and
subcontractors under contracts with a major helium requirement must
report purchases of helium from Federal helium suppliers.
Item VI--HUBZone Program Applicability (FAR Case 2001-003)
The HUBZone Act of 1997 expanded the applicability of the HUBZONE
Program to all agencies covered by the FAR after September 30, 2000,
and is currently reflected in the FAR. This rule amends the FAR to
simplify the existing language at FAR Parts 12, 19, and 52.
Item VII--Application of Labor Clauses (FAR Case 1999-612)
This final rule affects all contracting officers who use the FAR.
The rule--
Moves the Prohibition of Segregated Facilities clause from
the list at paragraph (b), to the list at paragraph (a), of the clause
at 52.213-4 and clarifies the existing requirements of 41 CFR 60-1.8,
promulgated by the Department of Labor under E.O. 11246. The
Prohibition of Segregated Facilities clause must be included in
contracts whenever the Equal Opportunity clause (FAR 52.222-26) is
included.
Moves the Equal Opportunity clause from the list at
paragraph (b), to the list at paragraph (a), of the clause at 52.213-4
because the clause must be included in almost all contracts, even those
under $10,000, in accordance with the requirements at FAR 22.802(a)(1)
and 22.807(b). Even though included, the clause is inapplicable unless
the aggregate value of contracts and subcontracts awarded to the
contractor exceeds $10,000 in a year.
Makes other revisions to the clause at FAR 52.222-26,
Equal Opportunity, to include a definition of "United States" and
incorporate the exception for work performed outside the United States.
Item VIII--Technical Amendments
These amendments update sections and make editorial changes at FAR
1.404, 5.207, 6.302-5, 9.104-3, 31.101, 52.219-19, and 52.219-20.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Federal Acquisition Circular
Federal Acquisition Circular (FAC) 2001-06 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and
Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 2001-06 are
effective April 4, 2002.
Dated: March 4, 2002.
Deidre A. Lee,
Director, Defense Procurement.
Dated: March 4, 2002.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy, General
Services Administration.
Dated: March 1, 2002.
Tom Luedtke,
Assistant Administrator for Procurement, National Aeronautics and Space
Administration.
[FR Doc. 02-5819 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13049-13052]
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[DOCID:fr20mr02-22]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1 and 53
[FAC 2001-06; FAR Case 2000-012; Item I]
RIN 9000-AJ31
Federal Acquisition Regulation; Commercial Items--Standard Form
1449
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to update Standard
Form 1449, Solicitation/Contract/Order for Commercial Items.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 2001-06, FAR case 2000-012.
SUPPLEMENTARY INFORMATION:
A. Background
Standard Form 1449, Solicitation/Contract/Order for Commercial
Items, is prescribed by the FAR for the acquisition of commercial
items. This final rule makes several minor revisions to the form,
including the addition of a block to indicate that the acquisition is a
HUBZone set-aside, the substitution of a NAICS code for the SIC code,
the notation that award is made only on the offeror's items
specifically listed in block 29, and the addition of several blocks in
the area of the form used as a receiving report by the Government. None
of the changes involve blocks that are completed by the public.
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
This final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. However, the Councils will
consider comments from small entities concerning the affected FAR parts
1 and 52 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.
(FAC 2001-06, FAR case 2000-012), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0136. The previous edition of the form indicated that the public
reporting burden related to the form had been cleared under OMB No.
9000-0136. That statement has been removed from this edition because
OMB Clearance 9000-0136 covers information collections unique to
commercial item acquisition. It does not cover the information required
by this form. This form is primarily completed by the Government. The
contractor/offeror fills in only its name, address, and proposed
prices. Those pieces of information do not require clearance in the FAR
under
[[Page 13050]]
the Paperwork Reduction Act. Office of Management and Budget Number
9000-0136 remains valid for the other information collection
requirements related to the acquisition of commercial items.
List of Subjects in 48 CFR Parts 1 and 53
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1 and 53 as set
forth below:
1. The authority citation for 48 CFR parts 1 and 53 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).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
2. Amend section 1.106 in the table by removing the FAR segment
"SF 1449" and its corresponding OMB Control Number "9000-0136".
PART 53--FORMS
53.212 [Amended]
3. Amend section 53.212 by removing "(OCT 1995)" and adding
"(Rev. 4/02)" in its place.
53.213 [Amended]
4. Amend section 53.213 in paragraph (a) and the introductory text
of paragraph (f) by removing "(10/95 Ed.)" and adding "(Rev. 4/02)"
in its place.
5. Revise section 53.301-1449 to read as follows.
53.301-1449 Solicitation/Contract/Order for Commercial Items.
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[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 5, 6, 8, 17, 19, 32, and 52
[FAC 2001-06; FAR Case 2000-402; Item II]
RIN 9000-AI76
Federal Acquisition Regulation; Definitions for "Contract
Action" and "Contracting Action"
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed to amend the
Federal Acquisition Regulation (FAR) to provide for consistent use of
the term "contract action" and to make other editorial changes to
clarify the text.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 2001-06, FAR case 2000-402.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends the FAR to provide for consistent use of the term
"contract action." The rule changes the term "contracting action"
to "contract action" throughout the FAR and makes other editorial
changes to clarify the text.
DoD, GSA, and NASA published a proposed rule in the Federal
Register on May 31, 2000 (65 FR 34894). One respondent submitted
comments on the proposed rule. Based on those comments, the rule was
changed to provide for more consistent use of the term "contract
action" and to place definitions in the proper FAR sections.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 we are not
substantively changing procedures for award and administration of
contracts. We did not receive any comments regarding this determination
as a result of publication of the proposed rule in the Federal Register
on May 31, 2000 (65 FR 34894).
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
Office of Management and Budget approval under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1, 5, 6, 8, 17, 19, 32, and 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 5, 6, 8, 17,
19, 32, and 52 as set forth below:
1. The authority citation for 48 CFR parts 1, 5, 6, 8, 17, 19, 32,
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).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
2. Revise section 1.403 to read as follows:
1.403 Individual deviations.
Individual deviations affect only one contract action, and, unless
1.405(e) is applicable, may be authorized by the agency head. The
contracting officer must document the justification and agency approval
in the contract file.
3. Revise the introductory paragraph of section 1.404 to read as
follows:
1.404 Class deviations.
Class deviations affect more than one contract action. When an
agency knows that it will require a class deviation on a permanent
basis, it should propose a FAR revision, if appropriate. Civilian
agencies, other than NASA, must furnish a copy of each approved class
deviation to the FAR Secretariat.
* * * * *
1.701 [Amended]
4. Amend the first sentence of section 1.701 by removing the word
"contracting" and adding "contract" in its place.
1.703 [Amended]
5. Amend section 1.703 in paragraph (a) by removing the word
"contracting" each time it appears (3 times) and adding "contract"
in its place.
6. Amend section 1.705 by revising paragraph (b) to read as
follows:
1.705 Supersession and modification.
* * * * *
(b) The contracting officer need not cancel the solicitation if the
D&F, as modified, supports the contract action.
PART 5--PUBLICIZING CONTRACT ACTIONS
7. Revise section 5.001 to read as follows:
5.001 Definition.
Contract action, as used in this part, means an action resulting in
a contract, as defined in subpart 2.1, including actions for additional
supplies or services outside the existing contract scope, but not
including actions that are within the scope and under the terms of the
existing contract, such as contract modifications issued pursuant to
the Changes clause, or funding and other administrative changes.
PART 6--COMPETITION REQUIREMENTS
6.502 [Amended]
8. Amend section 6.502 in paragraph (b)(1)(iv) by removing the word
"contracting" and adding "contract" in its place.
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
9. Revise section 8.102 to read as follows:
8.102 Policy.
When practicable, agencies must use excess personal property as the
first source of supply for agency and cost-reimbursement contractor
requirements. Agency personnel must make positive efforts to satisfy
agency requirements by obtaining and using excess personal property
(including that suitable for adaptation or substitution) before
initiating a contract action.
[[Page 13054]]
PART 17--SPECIAL CONTRACTING METHODS
17.104 [Amended]
10. Amend section 17.104 in the second sentence of paragraph (b) by
removing the words "contracting action" and adding "contract" in
their place.
11. Amend section 17.503 by revising the introductory text of
paragraph (b) to read as follows:
17.503 Determinations and findings requirements.
* * * * *
(b) If the Economy Act order requires contract action by the
servicing agency, the D&F must also include a statement that at least
one of the following circumstances applies:
* * * * *
PART 19--SMALL BUSINESS PROGRAMS
19.302 [Amended]
12. Amend section 19.302 in the first sentence of paragraph (h)(4)
by removing the words "contracting action" and adding "contract
action" in their place.
13. Amend section 19.505 by revising paragraph (c) to read as
follows:
19.505 Rejecting Small Business Administration recommendations.
* * * * *
(c) If the head of the contracting activity agrees that the
contracting officer's rejection was appropriate--
(1) Within 1 working day, the SBA procurement center representative
may request the contracting officer to suspend action on the
acquisition until the SBA Administrator appeals to the agency head (see
paragraph (f) of this section); and
(2) The SBA must be allowed 15 working days after making such a
written request, within which the Administrator of SBA--
(i) May appeal to the Secretary of the Department concerned; and
(ii) Must notify the contracting officer whether the further appeal
has, in fact, been taken. If notification is not received by the
contracting officer within the 15-day period, it is deemed that the SBA
request to suspend the contract action has been withdrawn and that an
appeal to the Secretary was not taken.
* * * * *
PART 32--CONTRACT FINANCING
14. Revise the introductory paragraph of section 32.000 to read as
follows:
32.000 Scope of part.
This part prescribes policies and procedures for contract financing
and other payment matters. This part addresses--
* * * * *
15. Amend section 32.001 by revising the definition "Contract
action" to read as follows:
32.001 Definitions.
* * * * *
Contract action means an action resulting in a contract, as defined
in subpart 2.1, including actions for additional supplies or services
outside the existing contract scope, but not including actions that are
within the scope and under the terms of the existing contract, such as
contract modifications issued pursuant to the Changes clause, or
funding and other administrative changes.
* * * * *
32.703-2 [Amended]
16. Amend section 32.703-2 in the first sentence of the
introductory text of paragraph (a) by removing the words "contracting
action" and adding "contract action" in their place; by removing the
semicolon after the word "available" and adding a comma in its place;
and by removing the comma after the word "provided".
17. Amend section 32.705-1 by revising paragraph (a) to read as
follows:
32.705-1 Clauses for contracting in advance of funds.
(a) Insert the clause at 52.232-18, Availability of Funds, in
solicitations and contracts if the contract will be chargeable to funds
of the new fiscal year and the contract action will be initiated before
the funds are available.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
18. Amend section 52.232-18 by revising the introductory text to
read as follows:
52.232-18 Availability of Funds.
As prescribed in 32.705-1(a), insert the following clause:
* * * * *
[FR Doc. 02-5821 Filed 3-19-02; 8:45 am]
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[Rules and Regulations]
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[DOCID:fr20mr02-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 3, 14, 15, 28, 35, and 52
[FAC 2001-06; FAR Case 2000-403; Item III]
RIN 9000-AI84
Federal Acquisition Regulation; Definitions for Sealed Bid and
Negotiated Procurements
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed to amend the
Federal Acquisition Regulation (FAR) to provide consistent definitions
for sealed bids and negotiated procurements.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 2001-06, FAR case 2000-403.
SUPPLEMENTARY INFORMATION:
A. Background
The rule clarifies definitions that are used in the FAR for sealed
bid and negotiated procurements. The rule--
Moves the definitions of "bid sample" and "descriptive
literature" from FAR part 14 to FAR 2.101 because the definitions
apply to more than one FAR part;
Amends those definitions and the definition of "offer"
in accordance with plain language guidelines;
Revises applicable provisions in FAR part 52 to conform
with the new definitions;
Adds a new definition for "solicitation" at FAR 2.101;
and
Provides definitions for "bid" and "bidder" in FAR
part 28 because, as used in that part, the terms address sealed bid and
negotiated acquisitions.
We also reviewed every instance where the terms "offeror,"
"prospective offeror," and "potential offeror" are used in the FAR.
The rule clarifies
[[Page 13055]]
terminology used in FAR 15.201(f), 15.609(e), and 35.007(g). Where we
mean an entity that is actively seeking a contract, we use the term
"prospective offeror." However, those cites describe processes that
are set up to ensure competition. Therefore, any interested party is
able to participate, including parties that the Government has not yet
identified. Therefore, the rule uses the more general term "potential
offeror."
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 65 FR 42852, July 11, 2000. Four respondents submitted
comments on the proposed rule. The Councils considered all comments in
the development of the final rule. A summary of the substantive
comments is provided:
Comment: Under 52.214-20, paragraph (c), change the second
sentence to read "The Government will reject the bid when the sample
fails" for clarity.
Response: Accepted.
Comment: Under FAR 2.101, the definition of an "offer"
does not include a "quotation." The definition of a "solicitation"
includes a "quotation." Both definitions should be consistent.
Response: Not accepted. The definition of "offer" is not all-
inclusive. It does not include "quotations." A quotation is not an
offer and, consequently, cannot be accepted by the Government to form a
binding contract. See FAR 13.004.
Comment: The proposed language under FAR 14.202-5(e)
should cite FAR 14.202-4(f) in lieu of (g).
Response: Accepted.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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, while we have made
changes for clarity and consistency, we have not substantively changed
procedures for award and administration of contracts.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
Office of Management and Budget approval under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 2, 3, 14, 15, 28, 35, and 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR Parts 2, 3, 14, 15, 28,
35, and 52 as set forth below:
1. The authority citation for 48 CFR Parts 2, 3, 14, 15, 28, 35,
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).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 by adding, in alphabetical order, the
definitions "Bid sample" and "Descriptive literature"; revising the
definition "Offer"; and by adding the definition "Solicitation" to
read as follows:
2.101 Definitions.
* * * * *
Bid sample means a product sample required to be submitted by an
offeror to show characteristics of the offered products that cannot
adequately be described by specifications, purchase descriptions, or
the solicitation (e.g., balance, facility of use, or pattern).
* * * * *
Descriptive literature means information provided by an offeror,
such as cuts, illustrations, drawings, and brochures, that shows a
product's characteristics or construction of a product or explains its
operation. The term includes only that information needed to evaluate
the acceptability of the product and excludes other information for
operating or maintaining the product.
* * * * *
Offer means a response to a solicitation that, if accepted, would
bind the offeror to perform the resultant contract. Responses to
invitations for bids (sealed bidding) are offers called "bids" or
"sealed bids"; responses to requests for proposals (negotiation) are
offers called "proposals"; however, responses to requests for
quotations (simplified acquisition) are "quotations", not offers. For
unsolicited proposals, see subpart 15.6.
* * * * *
Solicitation means any request to submit offers or quotations to
the Government. Solicitations under sealed bid procedures are called
"invitations for bids." Solicitations under negotiated procedures are
called "requests for proposals." Solicitations under simplified
acquisition procedures may require submission of either a quotation or
an offer.
* * * * *
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
3. Amend section 3.302 by revising the definition "Line item" to
read as follows:
3.302 Definitions.
* * * * *
Line item means an item of supply or service, specified in a
solicitation, that the offeror must separately price.
PART 14--SEALED BIDDING
4. Amend section 14.201-6 by--
a. Revising paragraph (a);
b. Removing paragraphs (b)(1) and (b)(2) and redesignating
paragraphs (b)(3) and (b)(4) as (b)(1) and (b)(2);
c. Revising the introductory text of paragraph (o)(2) and paragraph
(o)(3); and
d. Removing from paragraph (p)(3) "14.202-5(e)(2)" and adding
"14.202-5(d)(2)" in its place. The revised text reads as follows:
14.201-6 Solicitation provisions.
(a) The provisions prescribed in this subsection apply to
preparation and submission of bids in general. See other FAR parts for
provisions and clauses related to specific acquisition requirements.
* * * * *
(o)(1) * * *
(2) If it appears that the conditions in 14.202-4(e)(1) will apply
and the contracting officer anticipates granting waivers and--
* * * * *
(3) See 14.202-4(e)(2) regarding waiving the requirement for all
bidders.
* * * * *
14.202-4 [Amended]
5. Amend section 14.202-4 by removing paragraph (a); redesignating
paragraphs (b) through (h) as (a) through (g), respectively; and by
removing the word "of" from the heading of newly designated paragraph
(g).
6. Revise section 14.202-5 to read as follows:
14.202-5 Descriptive literature.
(a) Policy. Contracting officers must not require bidders to
furnish descriptive literature unless it is needed before award to
determine whether the
[[Page 13056]]
products offered meet the specification and to establish exactly what
the bidder proposes to furnish.
(b) Justification. The contracting officer must document in the
contract file the reasons why product acceptability cannot be
determined without the submission of descriptive literature, except
when the contract specifications require submission.
(c) Requirements of invitation for bids. (1) The invitation must
clearly state--
(i) What descriptive literature the bidders must furnish;
(ii) The purpose for requiring the literature;
(iii) The extent of its consideration in the evaluation of bids;
and
(iv) The rules that will apply if a bidder fails to furnish the
literature before bid opening or if the literature provided does not
comply with the requirements of the invitation.
(2) If bidders must furnish descriptive literature, see 14.201-
6(p).
(d) Waiver of requirement for descriptive literature. (1) The
contracting officer may waive the requirement for descriptive
literature if--
(i) The bidder states in the bid that the product being offered is
the same as a product previously or currently being furnished to the
contracting activity; and
(ii) The contracting officer determines that the product offered by
the bidder complies with the specification requirements of the current
invitation for bids. When the contracting officer waives the
requirement, see 14.201-6(p)(2).
(2) When descriptive literature is not necessary and a waiver of
literature requirements of a specification has been authorized, the
contracting officer must include a statement in the invitation that,
despite the requirements of the specifications, descriptive literature
will not be required.
(3) If the solicitation provides for a waiver, a bidder may submit
a bid on the basis of either the descriptive literature furnished with
the bid or a previously furnished product. If the bid is submitted on
one basis, the bidder may not have it considered on the other basis
after bids are opened.
(e) Unsolicited descriptive literature. If descriptive literature
is furnished when it is not required by the invitation for bids, the
procedures set forth in 14.202-4(f) must be followed.
14.404-4 [Amended]
7. Amend section 14.404-4 in the first sentence by removing
"14.202-5(a)" and adding "2.101" in its place; and in the last
sentence by removing "14.202-5(f)" and adding "14.202-5(e)" in its
place.
PART 15--CONTRACTING BY NEGOTIATION
8. Amend section 15.201 by removing the undesignated paragraph at
the end of the section and revising paragraph (f) to read as follows:
15.201 Exchanges with industry before receipt of proposals.
* * * * *
(f) General information about agency mission needs and future
requirements may be disclosed at any time. After release of the
solicitation, the contracting officer must be the focal point of any
exchange with potential offerors. When specific information about a
proposed acquisition that would be necessary for the preparation of
proposals is disclosed to one or more potential offerors, that
information must be made available to the public as soon as
practicable, but no later than the next general release of information,
in order to avoid creating an unfair competitive advantage. Information
provided to a potential offeror in response to its request must not be
disclosed if doing so would reveal the potential offeror's confidential
business strategy, and is protected under 3.104 or subpart 24.2. When
conducting a presolicitation or preproposal conference, materials
distributed at the conference should be made available to all potential
offerors, upon request.
9. Amend section 15.609 by revising paragraph (e) to read as
follows:
15.609 Limited use of data.
* * * * *
(e) Use the notice in paragraph (d) of this section solely as a
manner of handling unsolicited proposals that will be compatible with
this subpart. However, do not use this notice to justify withholding of
a record, or to improperly deny the public access to a record, where an
obligation is imposed by the Freedom of Information Act (5 U.S.C. 552).
An offeror should identify trade secrets, commercial or financial
information, and privileged or confidential information to the
Government (see paragraph (a) of this section).
* * * * *
PART 28--BONDS AND INSURANCE
10. Revise section 28.000 to read as follows:
28.000 Scope of part.
This part prescribes requirements for obtaining financial
protection against losses under contracts that result from the use of
the sealed bid or negotiated methods. It covers bid guarantees, bonds,
alternative payment protections, security for bonds, and insurance.
11. Amend section 28.001 by adding, in alphabetical order, the
definitions "Bid" and "Bidder" to read as follows:
28.001 Definitions.
* * * * *
Bid means any response to a solicitation, including a proposal
under a negotiated acquisition. See the definition of "offer" at
2.101.
* * * * *
Bidder means any entity that is responding or has responded to a
solicitation, including an offeror under a negotiated acquisition.
* * * * *
PART 35--RESEARCH AND DEVELOPMENT CONTRACTING
12. Amend section 35.007 by revising paragraph (g) to read as
follows:
35.007 Solicitations.
* * * * *
(g) The contracting officer should ensure that potential offerors
fully understand the details of the work, especially the Government
interpretation of the work statement. If the effort is complex, the
contracting officer should provide potential offerors an opportunity to
comment on the details of the requirements as contained in the work
statement, the contract Schedule, and any related specifications. This
may be done at a preproposal conference (see 15.201).
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.214-1 [Reserved]
13. Remove and reserve section 52.214-1.
52.214-3 [Amended]
14. Amend section 52.214-3 in the prescription by removing
"14.201-6(b)(3)" and adding "14.201-6(b)(1)" in its place.
52.214-4 [Amended]
15. Amend section 52.214-4 in the prescription by removing
"14.201-6(b)(4)" and adding "14.201-6(b)(2)" in its place.
16. Amend section 52.214-20 by revising the introductory paragraph,
date of the provision, and paragraphs
[[Page 13057]]
(a), (b), and the introductory text of paragraph (c); and by removing
from Alternates I and II "14.202-4(f)(1)" and adding "14.202-
4(e)(1)" in its place. The revised text reads as follows:
52.214-20 Bid Samples.
As prescribed in 14.201-6(o)(1), insert the following provision:
Bid Samples (Apr 2002)
(a) Bid sample means a product sample required to be submitted
by a bidder to show those characteristics of the offered products
that cannot adequately be described by specifications, purchase
descriptions, or the invitation for bid (e.g., balance, facility of
use, or pattern).
(b) Bidders must furnish bid samples as part of the bid. The
Government must receive the bid samples by the time specified in the
invitation for bids. If the bidder fails to submit samples on time,
the Government will reject the bid, except that the Contracting
Officer will consider a late sample sent by mail under the Late
Submissions, Modifications, and Withdrawals of Bids provision of
this solicitation.
(c) The Government will test or evaluate bid samples to
determine compliance with all the characteristics listed for
examination in this solicitation. The Government will reject the bid
when the sample fails to conform to the required characteristics.
Products delivered under any resulting contract must conform to--
* * * * *
(End of provision)
* * * * *
17. Revise section 52.214-21 to read as follows:
52.214-21 Descriptive Literature.
As prescribed in 14.201-6(p)(1), insert the following provision:
Descriptive Literature (Apr 2002)
(a) Descriptive literature, as used in this provision, means
information furnished by a bidder, such as cuts, illustrations,
drawings, and brochures, that shows a product's characteristics or
construction or explains its operation. The term includes only that
information required to evaluate the acceptability of the product
and excludes other information for operating or maintaining the
product.
(b) Descriptive literature is required to establish, for the
purpose of evaluation and award, details of the product offered that
are specified elsewhere in the solicitation and pertain to
significant elements such as--
(1) Design;
(2) Materials;
(3) Components;
(4) Performance characteristics; and
(5) Methods of manufacture, assembly, construction, or
operation.
(c) Descriptive literature, required elsewhere in this
solicitation, shall be--
(1) Identified to show the item(s) of the offer to which it
applies; and
(2) Received by the time specified in this solicitation.
(d) If the bidder fails to submit descriptive literature on
time, the Government will reject the bid, except that late
descriptive literature sent by mail may be considered under the Late
Submissions, Modifications, and Withdrawals of Bids provision of
this solicitation.
(e) If the descriptive literature fails to show that the product
offered conforms to the requirements of the solicitation, the
Government will reject the bid.
(End of provision)
Alternate I (Apr 2002). As prescribed in 14.201-6(p)(2), add the
following paragraphs (f) and (g) to the basic provision:
(f) The Contracting Officer may waive the requirement for
furnishing descriptive literature if the offeror has supplied a
product that is the same as that required by this solicitation under
a prior contract. A bidder that requests a waiver of this
requirement shall provide the following information:
Prior contract number--------------------------------------------------
Date of prior contract-------------------------------------------------
Contract line item number of product
supplied--------------------------------------------------------------
Name and address of Government activity to which delivery was made-----
Date of final delivery product supplied
----------------------------------------------------------------------
(g) Bidders shall submit bids on the basis of required
descriptive literature or on the basis of a previously supplied
product under paragraph (f) of this provision. A bidder submitting a
bid on one of these two bases may not elect to have its bid
considered on the alternative basis after the time specified for
receipt of bids. The Government will disregard a bidder's request
for a waiver under paragraph (f) if that bidder has submitted the
descriptive literature requested under this solicitation.
[FR Doc. 02-5822 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13057-13063]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20mr02-25]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 3, 4, 9, 15, and 52
[FAC 2001-06; FAR Case 1998-024; Item IV]
RIN 9000-AI61
Federal Acquisition Regulation; Procurement Integrity Rewrite
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to rewrite
procurement integrity coverage in plain language.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 2001-06, FAR case 1998-024.
SUPPLEMENTARY INFORMATION:
A. Background
Section 27 of the Office of Federal Procurement Policy Act (41
U.S.C. 423) is more commonly referred to as the Procurement Integrity
Act (hereinafter referred to as the Act). FAR 3.104 implements
prohibitions, restrictions, and other requirements of the Act that are
placed on certain agency officials that participate in Federal agency
procurements.
Other statutes and regulations also govern the conduct of
Government employees. In particular, the Office of Government Ethics
regulations provide interpretive guidance on the prohibitions in 18
U.S.C. 207 and 208 that also apply to Government employees that
participate in procurement activities during the conduct of a Federal
agency procurement. While FAR 3.104 does not implement these other
statutes and regulations, it is very important for agency employees to
be aware, not only of the prohibitions and restrictions in the Act, but
also those contained in other statutes and regulations that deal with
the same or related prohibited conduct. Criminal and administrative
penalties can result if an employee violates the restrictions or
otherwise engages in prohibited conduct.
It became apparent that we could improve FAR 3.104 by reorganizing
and simplifying the text. Moreover, we clarify 3.104 to alert agency
officials that even if their participation does not meet the definition
in FAR 3.104 of participating personally and substantially, they are
precluded from participating in a Federal agency procurement if they
engage in certain conduct otherwise prohibited by other statutes and
regulations. We added this guidance in FAR 3.104-2(b), 3.104-3(c), and
3.104-5(a) to alert these agency officials that they should seek advice
from agency ethics officials before engaging in certain activities that
could have serious consequences, including
[[Page 13058]]
criminal prosecution. These revisions to FAR 3.104 do not change either
the requirements of the Act or change, in any manner, who is covered
by, or the activities covered in, Office of Government Ethics
regulations interpreting conflict of interest statutes.
To avoid possible violations of 18 U.S.C. 208, agency employees
need to be aware that while their participation in a Federal agency
procurement may not be considered "participating personally and
substantially in a Federal agency procurement" for purposes of certain
requirements in the Act, nevertheless, there will be instances where
the employee will be considered to be participating personally and
substantially for purposes of 18 U.S.C. 208. We have added these
revisions to FAR 3.104 to alert agency officials that, while
participating in a Federal agency procurement, they must be aware of
and comply with the applicable disqualification requirements of 5 CFR
2635.604 and 2635.606.
These revisions also may assist agency ethics officials in advising
agency officials participating in a Federal agency procurement. Certain
conduct by an agency official during the conduct of a Federal agency
procurement requires the official's disqualification from participation
irrespective of whether or not the official's participation meets the
definition of participating personally and substantially for purposes
of the Act.
A proposed rule was published in the Federal Register at 65 FR
16758, March 29, 2000. Seven sources submitted comments in response to
the proposed rule. All comments were considered in the development of
the final rule. A summary of the substantive comments is provided.
Comment: Additional clarification should be added that
merely signing appointment letters for source selection evaluation
panels, boards is not "participating personally and substantially
participation in a Federal agency procurement."
Response: Not accepted. The definition of "participating
personally and substantially in a Federal agency procurement" is
already quite detailed and more clarification is unnecessary.
Comment: The standards identified in FAR 3.104-3(d)
concerning prohibition on a former official's acceptance of
compensation from a contractor that has been awarded a competitive or
sole source contract, as an employee, officer, director, or consultant
of the contractor should be made more restrictive.
Response: Not accepted. The regulatory coverage tracks the
statutory language.
Comment: A definition of "must" should be added.
Response: The definition of "must" was added to FAR 2.101 under
another final rule and is currently in the FAR.
Comment: Does the definition of "source selection
information" include quotations in FAR Subpart 13.5, Test Program for
Certain Commercial Items, that are over the simplified acquisition
threshold, normally over $100,000.
Response: No. Bids and proposals are addressed in the Act. Bids and
proposals are terms of art to distinguish methods of contracting (bids
under sealed bidding and proposals under negotiation). A quotation is
not a bid or a proposal.
Comment: The references to "procurement" in the rule
should be changed to read "acquisition."
Response: Not accepted. The Act and its implementation in FAR 3.104
apply only to a "Federal agency procurement." The term "Federal
agency procurement" is defined in both the Act and FAR 3.104. The
definition is different from the definition of "acquisition" in FAR
2.101.
Comment: Head of the contracting activity delegation
restrictions in FAR 3.104-7(g) should be relaxed.
Response: Not accepted. The issues being addressed are very
significant, i.e., violations or possible violations of the Act;
therefore, relaxation of the restriction is not appropriate.
Comment: Informing acquisition employees that some post-
employment restrictions are not tied to "personal and substantial
participation" should be added in the rule.
Response: Accepted. See discussion under Supplementary Information,
Background, above.
Comment: Suggest retaining current FAR definition at FAR
3.104-1, "Participating personally and substantially in a Federal
agency procurement," as applied to the OMB Circular A-76, paragraph
(4). The proposed rule contains an expanded definition.
Response: Accepted. The 1996 amendments to the Act limit the
application of the post-employment restrictions to designated
positions; therefore, the participation of most personnel in these
activities would not place them at risk of losing any right of first
refusal. See paragraph (4)(iv) of FAR 3.104-1, "Participating
substantially".
Comment: Clarify what constitutes a "contact" under the
Act. Response: An explanation of "contact" was added to the rule at
FAR 3.104-3(c)(2). The addition gives the suggested guidance.
Comment: A clarification that employment contacts through
agents are subject to disqualification needs to be added at FAR 3.104-
5(a).
Response: Accepted. The added language makes a clear statement that
an employment contact through agents is subject to disqualification
under this final rule.
Comment: The number of individuals required to receive the
disqualification notice directly from the agency official disqualifying
herself/himself should be reduced.
Response: Partially accepted. The requirement for a notice of
disqualification to the head of the contracting activity was deleted,
but the requirements for notice to the contracting officer, source
selection official, and immediate supervisor were retained. In an
attempt to reduce the number of officials required to be notified, it
was determined that the head of the contracting activity could be
deleted. The Act places an affirmative responsibility on the agency
official to disqualify herself/himself.
Comment: Clarify that satisfying the requirement of 18
U.S.C 208 does not automatically authorize the disqualified official to
resume participation in the procurement.
Response: The wording of the first sentence of 3.104-5(c) was
revised to clarify that the conditions for resumption of participation
in 3.104-3(c)(1)(ii) are statutorily mandated and that reinstatement is
not necessarily automatic after those conditions have been met.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 clarification only
applies to individuals that are Government officials.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the
[[Page 13059]]
approval of the Office of Management and Budget under 44 U.S.C. 3501,
et seq.
List of Subjects in 48 CFR Parts 2, 3, 4, 9, 15, and 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 3, 4, 9, 15,
and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 3, 4, 9, 15, 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).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 by adding, in alphabetical order, the
definitions "Offeror" and "Source selection information" to read as
follows:
2.101 Definitions.
* * * * *
Offeror means offeror or bidder.
* * * * *
Source selection information means any of the following information
that is prepared for use by an agency for the purpose of evaluating a
bid or proposal to enter into an agency procurement contract, if that
information has not been previously made available to the public or
disclosed publicly:
(1) Bid prices submitted in response to an agency invitation for
bids, or lists of those bid prices before bid opening.
(2) Proposed costs or prices submitted in response to an agency
solicitation, or lists of those proposed costs or prices.
(3) Source selection plans.
(4) Technical evaluation plans.
(5) Technical evaluations of proposals.
(6) Cost or price evaluations of proposals.
(7) Competitive range determinations that identify proposals that
have a reasonable chance of being selected for award of a contract.
(8) Rankings of bids, proposals, or competitors.
(9) Reports and evaluations of source selection panels, boards, or
advisory councils.
(10) Other information marked as "Source Selection Information--
See FAR 2.101 and 3.104" based on a case-by-case determination by the
head of the agency or the contracting officer, that its disclosure
would jeopardize the integrity or successful completion of the Federal
agency procurement to which the information relates.
* * * * *
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
3. Remove sections 3.104-10 and 3.104-11 and revise sections 3.104
through 3.104-9 to read as follows:
3.104 Procurement integrity.
3.104-1 Definitions.
As used in this section--
Agency ethics official means the designated agency ethics official
described in 5 CFR 2638.201 or other designated person, including--
(1) Deputy ethics officials described in 5 CFR 2638.204, to whom
authority under 3.104-6 has been delegated by the designated agency
ethics official; and
(2) Alternate designated agency ethics officials described in 5 CFR
2638.202(b).
Compensation means wages, salaries, honoraria, commissions,
professional fees, and any other form of compensation, provided
directly or indirectly for services rendered. Compensation is
indirectly provided if it is paid to an entity other than the
individual, specifically in exchange for services provided by the
individual.
Contractor bid or proposal information means any of the following
information submitted to a Federal agency as part of or in connection
with a bid or proposal to enter into a Federal agency procurement
contract, if that information has not been previously made available to
the public or disclosed publicly:
(1) Cost or pricing data (as defined by 10 U.S.C. 2306a(h)) with
respect to procurements subject to that section, and section 304A(h) of
the Federal Property and Administrative Services Act of 1949 (41 U.S.C.
254b(h)), with respect to procurements subject to that section.
(2) Indirect costs and direct labor rates.
(3) Proprietary information about manufacturing processes,
operations, or techniques marked by the contractor in accordance with
applicable law or regulation.
(4) Information marked by the contractor as "contractor bid or
proposal information" in accordance with applicable law or regulation.
(5) Information marked in accordance with 52.215-1(e).
Decision to award a subcontract or modification of subcontract
means a decision to designate award to a particular source.
Federal agency procurement means the acquisition (by using
competitive procedures and awarding a contract) of goods or services
(including construction) from non-Federal sources by a Federal agency
using appropriated funds. For broad agency announcements and small
business innovative research programs, each proposal received by an
agency constitutes a separate procurement for purposes of the Act.
In excess of $10,000,000 means--
(1) The value, or estimated value, at the time of award, of the
contract, including all options;
(2) The total estimated value at the time of award of all orders
under an indefinite-delivery, indefinite-quantity, or requirements
contract;
(3) Any multiple award schedule contract, unless the contracting
officer documents a lower estimate;
(4) The value of a delivery order, task order, or an order under a
Basic Ordering Agreement;
(5) The amount paid or to be paid in settlement of a claim; or
(6) The estimated monetary value of negotiated overhead or other
rates when applied to the Government portion of the applicable
allocation base.
Official means--
(1) An officer, as defined in 5 U.S.C. 2104;
(2) An employee, as defined in 5 U.S.C. 2105;
(3) A member of the uniformed services, as defined in 5 U.S.C.
2101(3); or
(4) A special Government employee, as defined in 18 U.S.C. 202.
Participating personally and substantially in a Federal agency
procurement means--
(1) Active and significant involvement of an official in any of the
following activities directly related to that procurement:
(i) Drafting, reviewing, or approving the specification or
statement of work for the procurement.
(ii) Preparing or developing the solicitation.
(iii) Evaluating bids or proposals, or selecting a source.
(iv) Negotiating price or terms and conditions of the contract.
(v) Reviewing and approving the award of the contract.
(2) Participating personally means participating directly, and
includes the direct and active supervision of a subordinate's
participation in the matter.
(3) Participating substantially means that the official's
involvement is of significance to the matter. Substantial participation
requires more than official responsibility, knowledge, perfunctory
[[Page 13060]]
involvement, or involvement on an administrative or peripheral issue.
Participation may be substantial even though it is not determinative of
the outcome of a particular matter. A finding of substantiality should
be based not only on the effort devoted to a matter, but on the
importance of the effort. While a series of peripheral involvements may
be insubstantial, the single act of approving or participating in a
critical step may be substantial. However, the review of procurement
documents solely to determine compliance with regulatory,
administrative, or budgetary procedures, does not constitute
substantial participation in a procurement.
(4) Generally, an official will not be considered to have
participated personally and substantially in a procurement solely by
participating in the following activities:
(i) Agency-level boards, panels, or other advisory committees that
review program milestones or evaluate and make recommendations
regarding alternative technologies or approaches for satisfying broad
agency-level missions or objectives.
(ii) The performance of general, technical, engineering, or
scientific effort having broad application not directly associated with
a particular procurement, notwithstanding that such general, technical,
engineering, or scientific effort subsequently may be incorporated into
a particular procurement.
(iii) Clerical functions supporting the conduct of a particular
procurement.
(iv) For procurements to be conducted under the procedures of OMB
Circular A-76, participation in management studies, preparation of in-
house cost estimates, preparation of "most efficient organization"
analyses, and furnishing of data or technical support to be used by
others in the development of performance standards, statements of work,
or specifications.
Source selection evaluation board means any board, team, council,
or other group that evaluates bids or proposals.
3.104-2 General.
(a) This section implements section 27 of the Office of Federal
Procurement Policy Act (the Procurement Integrity Act) (41 U.S.C. 423)
referred to as "the Act"). Agency supplementation of 3.104, including
specific definitions to identify individuals who occupy positions
specified in 3.104-3(d)(1)(ii), and any clauses required by 3.104 must
be approved by the senior procurement executive of the agency, unless a
law establishes a higher level of approval for that agency.
(b) Agency officials are reminded that there are other statutes and
regulations that deal with the same or related prohibited conduct, for
example--
(1) The offer or acceptance of a bribe or gratuity is prohibited by
18 U.S.C. 201 and 10 U.S.C. 2207. The acceptance of a gift, under
certain circumstances, is prohibited by 5 U.S.C. 7353 and 5 CFR part
2635;
(2) Contacts with an offeror during the conduct of an acquisition
may constitute "seeking employment,"(see subpart F of 5 CFR part 2636
and 3.104-3(c)(2)). Government officers and employees (employees) are
prohibited by 18 U.S.C. 208 and 5 CFR part 2635 from participating
personally and substantially in any particular matter that would affect
the financial interests of any person with whom the employee is seeking
employment. An employee who engages in negotiations or is otherwise
seeking employment with an offeror or who has an arrangement concerning
future employment with an offeror must comply with the applicable
disqualification requirements of 5 CFR 2635.604 and 2635.606. The
statutory prohibition in 18 U.S.C. 208 also may require an employee's
disqualification from participation in the acquisition even if the
employee's duties may not be considered "participating personally and
substantially," as this term is defined in 3.104-1;
(3) Post-employment restrictions are covered by 18 U.S.C. 207 and 5
CFR parts 2637 and 2641, that prohibit certain activities by former
Government employees, including representation of a contractor before
the Government in relation to any contract or other particular matter
involving specific parties on which the former employee participated
personally and substantially while employed by the Government.
Additional restrictions apply to certain senior Government employees
and for particular matters under an employee's official responsibility;
(4) Parts 14 and 15 place restrictions on the release of
information related to procurements and other contractor information
that must be protected under 18 U.S.C. 1905;
(5) Release of information both before and after award (see 3.104-
4) may be prohibited by the Privacy Act (5 U.S.C. 552a), the Trade
Secrets Act (18 U.S.C. 1905), and other laws; and
(6) Using nonpublic information to further an employee's private
interest or that of another and engaging in a financial transaction
using nonpublic information are prohibited by 5 CFR 2635.703.
3.104-3 Statutory and related prohibitions, restrictions, and
requirements.
(a) Prohibition on disclosing procurement information (subsection
27(a) of the Act). (1) A person described in paragraph (a)(2) of this
subsection must not, other than as provided by law, knowingly disclose
contractor bid or proposal information or source selection information
before the award of a Federal agency procurement contract to which the
information relates. (See 3.104-4(a).)
(2) Paragraph (a)(1) of this subsection applies to any person who--
(i) Is a present or former official of the United States, or a
person who is acting or has acted for or on behalf of, or who is
advising or has advised the United States with respect to, a Federal
agency procurement; and
(ii) By virtue of that office, employment, or relationship, has or
had access to contractor bid or proposal information or source
selection information.
(b) Prohibition on obtaining procurement information (subsection
27(b) of the Act). A person must not, other than as provided by law,
knowingly obtain contractor bid or proposal information or source
selection information before the award of a Federal agency procurement
contract to which the information relates.
(c) Actions required when an agency official contacts or is
contacted by an offeror regarding non-Federal employment (subsection
27(c) of the Act). (1) If an agency official, participating personally
and substantially in a Federal agency procurement for a contract in
excess of the simplified acquisition threshold, contacts or is
contacted by a person who is an offeror in that Federal agency
procurement regarding possible non-Federal employment for that
official, the official must--
(i) Promptly report the contact in writing to the official's
supervisor and to the agency ethics official; and
(ii) Either reject the possibility of non-Federal employment or
disqualify himself or herself from further personal and substantial
participation in that Federal agency procurement (see 3.104-5) until
such time as the agency authorizes the official to resume participation
in that procurement, in accordance with the requirements of 18 U.S.C.
208 and applicable agency regulations, because--
(A) The person is no longer an offeror in that Federal agency
procurement; or
[[Page 13061]]
(B) All discussions with the offeror regarding possible non-Federal
employment have terminated without an agreement or arrangement for
employment.
(2) A contact is any of the actions included as "seeking
employment" in 5 CFR 2635.603(b). In addition, unsolicited
communications from offerors regarding possible employment are
considered contacts.
(3) Agencies must retain reports of employment contacts for 2 years
from the date the report was submitted.
(4) Conduct that complies with subsection 27(c) of the Act may be
prohibited by other criminal statutes and the Standards of Ethical
Conduct for Employees of the Executive Branch. See 3.104-2(b)(2).
(d) Prohibition on former official's acceptance of compensation
from a contractor (subsection 27(d) of the Act). (1) A former official
of a Federal agency may not accept compensation from a contractor that
has been awarded a competitive or sole source contract, as an employee,
officer, director, or consultant of the contractor within a period of 1
year after such former official--
(i) Served, at the time of selection of the contractor or the award
of a contract to that contractor, as the procuring contracting officer,
the source selection authority, a member of a source selection
evaluation board, or the chief of a financial or technical evaluation
team in a procurement in which that contractor was selected for award
of a contract in excess of $10,000,000;
(ii) Served as the program manager, deputy program manager, or
administrative contracting officer for a contract in excess of
$10,000,000 awarded to that contractor; or
(iii) Personally made for the Federal agency a decision to--
(A) Award a contract, subcontract, modification of a contract or
subcontract, or a task order or delivery order in excess of $10,000,000
to that contractor;
(B) Establish overhead or other rates applicable to a contract or
contracts for that contractor that are valued in excess of $10,000,000;
(C) Approve issuance of a contract payment or payments in excess of
$10,000,000 to that contractor; or
(D) Pay or settle a claim in excess of $10,000,000 with that
contractor.
(2) The 1-year prohibition begins on the date--
(i) Of contract award for positions described in paragraph
(d)(1)(i) of this subsection, or the date of contractor selection if
the official was not serving in the position on the date of award;
(ii) The official last served in one of the positions described in
paragraph (d)(1)(ii) of this subsection; or
(iii) The official made one of the decisions described in paragraph
(d)(1)(iii) of this subsection.
(3) Nothing in paragraph (d)(1) of this subsection may be construed
to prohibit a former official of a Federal agency from accepting
compensation from any division or affiliate of a contractor that does
not produce the same or similar products or services as the entity of
the contractor that is responsible for the contract referred to in
paragraph (d)(1) of this subsection.
3.104-4 Disclosure, protection, and marking of contractor bid or
proposal information and source selection information.
(a) Except as specifically provided for in this subsection, no
person or other entity may disclose contractor bid or proposal
information or source selection information to any person other than a
person authorized, in accordance with applicable agency regulations or
procedures, by the agency head or the contracting officer to receive
such information.
(b) Contractor bid or proposal information and source selection
information must be protected from unauthorized disclosure in
accordance with 14.401, 15.207, applicable law, and agency regulations.
(c) Individuals unsure if particular information is source
selection information, as defined in 2.101, should consult with agency
officials as necessary. Individuals responsible for preparing material
that may be source selection information as described at paragraph (10)
of the "source selection information" definition in 2.101 must mark
the cover page and each page that the individual believes contains
source selection information with the legend "Source Selection
Information--See FAR 2.101 and 3.104." Although the information in
paragraphs (1) through (9) of the definition in 2.101 is considered to
be source selection information whether or not marked, all reasonable
efforts must be made to mark such material with the same legend.
(d) Except as provided in paragraph (d)(3) of this subsection, the
contracting officer must notify the contractor in writing if the
contracting officer believes that proprietary information, contractor
bid or proposal information, or information marked in accordance with
52.215-1(e) has been inappropriately marked. The contractor that has
affixed the marking must be given an opportunity to justify the
marking.
(1) If the contractor agrees that the marking is not justified, or
does not respond within the time specified in the notice, the
contracting officer may remove the marking and release the information.
(2) If, after reviewing the contractor's justification, the
contracting officer determines that the marking is not justified, the
contracting officer must notify the contractor in writing before
releasing the information.
(3) For technical data marked as proprietary by a contractor, the
contracting officer must follow the procedures in 27.404(h).
(e) This section does not restrict or prohibit--
(1) A contractor from disclosing its own bid or proposal
information or the recipient from receiving that information;
(2) The disclosure or receipt of information, not otherwise
protected, relating to a Federal agency procurement after it has been
canceled by the Federal agency, before contract award, unless the
Federal agency plans to resume the procurement;
(3) Individual meetings between a Federal agency official and an
offeror or potential offeror for, or a recipient of, a contract or
subcontract under a Federal agency procurement, provided that
unauthorized disclosure or receipt of contractor bid or proposal
information or source selection information does not occur; or
(4) The Government's use of technical data in a manner consistent
with the Government's rights in the data.
(f) This section does not authorize--
(1) The withholding of any information pursuant to a proper request
from the Congress, any committee or subcommittee thereof, a Federal
agency, the Comptroller General, or an Inspector General of a Federal
agency, except as otherwise authorized by law or regulation. Any
release containing contractor bid or proposal information or source
selection information must clearly identify the information as
contractor bid or proposal information or source selection information
related to the conduct of a Federal agency procurement and notify the
recipient that the disclosure of the information is restricted by
section 27 of the Act;
(2) The withholding of information from, or restricting its receipt
by, the Comptroller General in the course of a protest against the
award or proposed award of a Federal agency procurement contract;
(3) The release of information after award of a contract or
cancellation of a procurement if such information is
[[Page 13062]]
contractor bid or proposal information or source selection information
that pertains to another procurement; or
(4) The disclosure, solicitation, or receipt of bid or proposal
information or source selection information after award if disclosure,
solicitation, or receipt is prohibited by law. (See 3.104-2(b)(5) and
subpart 24.2.)
3.104-5 Disqualification.
(a) Contacts through agents or other intermediaries. Employment
contacts between the employee and the offeror, that are conducted
through agents, or other intermediaries, may require disqualification
under 3.104-3(c)(1). These contacts may also require disqualification
under other statutes and regulations. (See 3.104-2(b)(2).)
(b) Disqualification notice. In addition to submitting the contact
report required by 3.104-3(c)(1), an agency official who must
disqualify himself or herself pursuant to 3.104-3(c)(1)(ii) must
promptly submit written notice of disqualification from further
participation in the procurement to the contracting officer, the source
selection authority if other than the contracting officer, and the
agency official's immediate supervisor. As a minimum, the notice must--
(1) Identify the procurement;
(2) Describe the nature of the agency official's participation in
the procurement and specify the approximate dates or time period of
participation; and
(3) Identify the offeror and describe its interest in the
procurement.
(c) Resumption of participation in a procurement. (1) The official
must remain disqualified until such time as the agency, at its sole and
exclusive discretion, authorizes the official to resume participation
in the procurement in accordance with 3.104-3(c)(1)(ii).
(2) After the conditions of 3.104-3(c)(1)(ii)(A) or (B) have been
met, the head of the contracting activity (HCA), after consultation
with the agency ethics official, may authorize the disqualified
official to resume participation in the procurement, or may determine
that an additional disqualification period is necessary to protect the
integrity of the procurement process. In determining the
disqualification period, the HCA must consider any factors that create
an appearance that the disqualified official acted without complete
impartiality in the procurement. The HCA's reinstatement decision
should be in writing.
(3) Government officer or employee must also comply with the
provisions of 18 U.S.C. 208 and 5 CFR part 2635 regarding any resumed
participation in a procurement matter. Government officer or employee
may not be reinstated to participate in a procurement matter affecting
the financial interest of someone with whom the individual is seeking
employment, unless the individual receives--
(i) A waiver pursuant to 18 U.S.C. 208(b)(1) or (b)(3); or
(ii) An authorization in accordance with the requirements of
subpart F of 5 CFR part 2635.
3.104-6 Ethics advisory opinions regarding prohibitions on a former
official's acceptance of compensation from a contractor.
(a) An official or former official of a Federal agency who does not
know whether he or she is or would be precluded by subsection 27(d) of
the Act (see 3.104-3(d)) from accepting compensation from a particular
contractor may request advice from the appropriate agency ethics
official before accepting such compensation.
(b) The request for an advisory opinion must be in writing, include
all relevant information reasonably available to the official or former
official, and be dated and signed. The request must include information
about the--
(1) Procurement(s), or decision(s) on matters under 3.104-
3(d)(1)(iii), involving the particular contractor, in which the
individual was or is involved, including contract or solicitation
numbers, dates of solicitation or award, a description of the supplies
or services procured or to be procured, and contract amount;
(2) Individual's participation in the procurement or decision,
including the dates or time periods of that participation, and the
nature of the individual's duties, responsibilities, or actions; and
(3) Contractor, including a description of the products or services
produced by the division or affiliate of the contractor from whom the
individual proposes to accept compensation.
(c) Within 30 days after receipt of a request containing complete
information, or as soon thereafter as practicable, the agency ethics
official should issue an opinion on whether the proposed conduct would
violate subsection 27(d) of the Act.
(d)(1) If complete information is not included in the request, the
agency ethics official may ask the requester to provide more
information or request information from other persons, including the
source selection authority, the contracting officer, or the requester's
immediate supervisor.
(2) In issuing an opinion, the agency ethics official may rely upon
the accuracy of information furnished by the requester or other agency
sources, unless he or she has reason to believe that the information is
fraudulent, misleading, or otherwise incorrect.
(3) If the requester is advised in a written opinion by the agency
ethics official that the requester may accept compensation from a
particular contractor, and accepts such compensation in good faith
reliance on that advisory opinion, then neither the requester nor the
contractor will be found to have knowingly violated subsection 27(d) of
the Act. If the requester or the contractor has actual knowledge or
reason to believe that the opinion is based upon fraudulent,
misleading, or otherwise incorrect information, their reliance upon the
opinion will not be deemed to be in good faith.
3.104-7 Violations or possible violations.
(a) A contracting officer who receives or obtains information of a
violation or possible violation of subsection 27(a), (b), (c), or (d)
of the Act (see 3.104-3) must determine if the reported violation or
possible violation has any impact on the pending award or selection of
the contractor.
(1) If the contracting officer concludes that there is no impact on
the procurement, the contracting officer must forward the information
concerning the violation or possible violation and documentation
supporting a determination that there is no impact on the procurement
to an individual designated in accordance with agency procedures.
(i) If that individual concurs, the contracting officer may proceed
with the procurement.
(ii) If that individual does not concur, the individual must
promptly forward the information and documentation to the HCA and
advise the contracting officer to withhold award.
(2) If the contracting officer concludes that the violation or
possible violation impacts the procurement, the contracting officer
must promptly forward the information to the HCA.
(b) The HCA must review all information available and, in
accordance with agency procedures, take appropriate action, such as--
(1) Advise the contracting officer to continue with the
procurement;
(2) Begin an investigation;
(3) Refer the information disclosed to appropriate criminal
investigative agencies;
(4) Conclude that a violation occurred; or
[[Page 13063]]
(5) Recommend that the agency head determine that the contractor,
or someone acting for the contractor, has engaged in conduct
constituting an offense punishable under subsection 27(e) of the Act,
for the purpose of voiding or rescinding the contract.
(c) Before concluding that an offeror, contractor, or person has
violated the Act, the HCA may consider that the interests of the
Government are best served by requesting information from appropriate
parties regarding the violation or possible violation.
(d) If the HCA concludes that section 27 of the Act has been
violated, the HCA may direct the contracting officer to--
(1) If a contract has not been awarded--
(i) Cancel the procurement;
(ii) Disqualify an offeror; or
(iii) Take any other appropriate actions in the interests of the
Government.
(2) If a contract has been awarded--
(i) Effect appropriate contractual remedies, including profit
recapture under the clause at 52.203-10, Price or Fee Adjustment for
Illegal or Improper Activity, or, if the contract has been rescinded
under paragraph(d)(2)(ii) of this subsection, recovery of the amount
expended under the contract;
(ii) Void or rescind the contract with respect to which--
(A) The contractor or someone acting for the contractor has been
convicted for an offense where the conduct constitutes a violation of
subsection 27(a) or (b) of the Act for the purpose of either--
(1) Exchanging the information covered by the subsections for
anything of value; or
(2) Obtaining or giving anyone a competitive advantage in the award
of a Federal agency procurement contract; or
(B) The agency head has determined, based upon a preponderance of
the evidence, that the contractor or someone acting for the contractor
has engaged in conduct constituting an offense punishable under
subsection 27(e)(1) of the Act; or
(iii) Take any other appropriate actions in the best interests of
the Government.
(3) Refer the matter to the agency suspending or debarring
official.
(e) The HCA should recommend or direct an administrative or
contractual remedy commensurate with the severity and effect of the
violation.
(f) If the HCA determines that urgent and compelling circumstances
justify an award, or award is otherwise in the interests of the
Government, the HCA, in accordance with agency procedures, may
authorize the contracting officer to award the contract or execute the
contract modification after notifying the agency head.
(g) The HCA may delegate his or her authority under this subsection
to an individual at least one organizational level above the
contracting officer and of General Officer, Flag, Senior Executive
Service, or equivalent rank.
3.104-8 Criminal and civil penalties, and further administrative
remedies.
Criminal and civil penalties, and administrative remedies, may
apply to conduct that violates the Act (see 3.104-3). See 33.102(f) for
special rules regarding bid protests. See 3.104-7 for administrative
remedies relating to contracts.
(a) An official who knowingly fails to comply with the requirements
of 3.104-3 is subject to the penalties and administrative action set
forth in subsection 27(e) of the Act.
(b) An offeror who engages in employment discussion with an
official subject to the restrictions of 3.104-3, knowing that the
official has not complied with 3.104-3(c)(1), is subject to the
criminal, civil, or administrative penalties set forth in subsection
27(e) of the Act.
(c) An official who refuses to terminate employment discussions
(see 3.104-5) may be subject to agency administrative actions under 5
CFR 2635.604(d) if the official's disqualification from participation
in a particular procurement interferes substantially with the
individual's ability to perform assigned duties.
3.104-9 Contract clauses.
In solicitations and contracts for other than commercial items that
exceed the simplified acquisition threshold, insert the clauses at--
(a) 52.203-8, Cancellation, Rescission, and Recovery of Funds for
Illegal or Improper Activity; and
(b) 52.203-10, Price or Fee Adjustment for Illegal or Improper
Activity.
3.704 [Amended]
4. Amend section 3.704 in paragraph (c)(1) by removing "3.104-10"
and adding "3.104-7" in its place.
PART 4--ADMINISTRATIVE MATTERS
5. Amend section 4.802 in paragraphs (a)(1), (a)(2), and (a)(3) by
removing ", which shall document" and adding "that documents" in
their place; in the introductory text of paragraph (c) by removing
"shall" the first time it appears and adding "must" in its place,
and removing "shall" the second time it appears; in the first
sentence of paragraph (d) by removing "shall" and adding "must" in
its place; and by revising paragraph (e) to read as follows:
4.802 Contract files.
* * * * *
(e) Contents of contract files that are contractor bid or proposal
information or source selection information as defined in 2.101 must be
protected from disclosure to unauthorized persons (see 3.104-4).
* * * * *
PART 9--CONTRACTOR QUALIFICATIONS
9.105-3 [Amended]
6. Amend section 9.105-3 in paragraph (c) by removing "and/or"
and adding "or" in its place, and by removing "3.104-3" and adding
"3.104-4" in its place.
9.505 [Amended]
7. Amend section 9.505 in paragraph (b)(2) by removing "3.104-3"
and adding "2.101" in its place.
PART 15--CONTRACTING BY NEGOTIATION
8. Amend section 15.404-2 by revising paragraph (a)(5) to read as
follows:
15.404-2 Information to support proposal analysis.
(a) * * *
(5) Field pricing information and other reports may include
proprietary or source selection information (see 2.101). This
information must be appropriately identified and protected accordingly.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.203-8 [Amended]
9. Amend section 52.203-8 in the introductory paragraph by removing
"in solicitations and contracts".
[FR Doc. 02-5823 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13064-13065]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr20mr02-26]
[[Page 13064]]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 8 and 52
[FAC 2001-06; FAR Case 2000-008; Item V]
RIN 9000-AJ09
Federal Acquisition Regulation; Acquisition of Helium
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to implement the
Helium Privatization Act of 1996 (Pub. L. 104-273) and associated
changes to the Department of the Interior's regulations regarding its
helium program.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 2001-06, FAR case 2000-008.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule revises FAR Subpart 8.5 and the clause at 52.208-8
to implement the Department of Interior final rule regarding helium
contracts that was published in the Federal Register at 63 FR 66760,
December 3, 1998. The final rule--
Changes the definitions;
Eliminates the requirement for certain contracts and
subcontractors to submit helium forecasts; and
Establishes the requirement that contractors and
subcontractors under contracts with a major helium requirement must
report purchases of helium from Federal helium suppliers.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 66 FR 2752, January 11, 2001. One source, the Department of
Interior, submitted a comment in response to the proposed rule,
recommending that the Councils add "Amarillo Field Office" to the
address provided in the definition of "Bureau of Land Management" at
FAR 8.501 and the clause at 52.208-8(a). The Councils concurred with
the change and included it in the final rule.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 eliminates the
information requirement for submitting helium forecasts and replaces it
with a similar information requirement to report helium purchases. We
estimate that the net change is zero.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR do not impose additional information collection requirements to
the paperwork burden previously approved under OMB Control Number 9000-
0113.
List of Subjects in 48 CFR Parts 8 and 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 8 and 52 as set
forth below:
1. The authority citation for 48 CFR parts 8 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).
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
2. Revise subpart 8.5, consisting of sections 8.500 through 8.505,
to read as follows:
Subpart 8.5--Acquisition of Helium
8.500 Scope of subpart.
This subpart implements the requirements of the Helium Act (50
U.S.C. 167, et seq.) concerning the acquisition of liquid or gaseous
helium by Federal agencies or by Government contractors or
subcontractors for use in the performance of a Government contract
(also see 43 CFR part 3195).
8.501 Definitions.
As used in this subpart--
Bureau of Land Management means the Department of the Interior,
Bureau of Land Management, Amarillo Field Office, Helium Operations,
801 South Fillmore Street, Suite 500, Amarillo, TX 79101-3545.
Federal helium supplier means a private helium vendor that has an
in-kind crude helium sales contract with the Bureau of Land Management
(BLM) and that is on the BLM Amarillo Field Office's Authorized List of
Federal Helium Suppliers available via the Internet at http://
www.nm.blm.gov/www/amfo/amfo_home.html.
Major helium requirement means an estimated refined helium
requirement greater than 200,000 standard cubic feet (scf) (measured at
14.7 pounds per square inch absolute pressure and 70 degrees Fahrenheit
temperature) of gaseous helium or 7510 liters of liquid helium
delivered to a helium use location per year.
8.502 Policy.
Agencies and their contractors and subcontractors must purchase
major helium requirements from Federal helium suppliers, to the extent
that supplies are available.
8.503 Exception.
The requirements of this subpart do not apply to contracts or
subcontracts in which the helium was acquired by the contractor prior
to award of the contract or subcontract.
8.504 Procedures.
The contracting officer must forward the following information to
the Bureau of Land Management within 45 days of the close of each
fiscal quarter:
(a) The name of any company that supplied a major helium
requirement.
(b) The amount of helium purchased.
(c) The delivery date(s).
(d) The location where the helium was used.
8.505 Contract clause.
Insert the clause at 52.208-8, Required Sources for Helium and
Helium Usage Data, in solicitations and contracts if it is anticipated
that performance of the contract involves a major helium requirement.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
3. Revise the clause heading and section 52.208-8 to read as
follows:
[[Page 13065]]
52.208-8 Required Sources for Helium and Helium Usage Data.
As prescribed in 8.505, insert the following clause:
Required Sources for Helium and Helium Usage Data (Apr 2002)
(a) Definitions.
Bureau of Land Management, as used in this clause, means the
Department of the Interior, Bureau of Land Management, Amarillo
Field Office, Helium Operations, located at 801 South Fillmore
Street, Suite 500, Amarillo, TX 79101-3545.
Federal helium supplier means a private helium vendor that has
an in-kind crude helium sales contract with the Bureau of Land
Management (BLM) and that is on the BLM Amarillo Field Office's
Authorized List of Federal Helium Suppliers available via the
Internet at http://www.nm.blm.gov/www/amfo/amfo_home.html.
Major helium requirement means an estimated refined helium
requirement greater than 200,000 standard cubic feet (scf) (measured
at 14.7 pounds per square inch absolute pressure and 70 degrees
Fahrenheit temperature) of gaseous helium or 7510 liters of liquid
helium delivered to a helium use location per year.
(b) Requirements--(1) Contractors must purchase major helium
requirements from Federal helium suppliers, to the extent that
supplies are available.
(2) The Contractor shall provide to the Contracting Officer the
following data within 10 days after the Contractor or subcontractor
receives a delivery of helium from a Federal helium supplier--
(i) The name of the supplier;
(ii) The amount of helium purchased;
(iii) The delivery date(s); and
(iv) The location where the helium was used.
(c) Subcontracts. The Contractor shall insert this clause,
including this paragraph (c), in any subcontract or order that
involves a major helium requirement.
(End of clause)
[FR Doc. 02-5824 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13065-13066]
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[DOCID:fr20mr02-27]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 12, 19, and 52
[FAC 2001-06; FAR Case 2001-003; Item VI]
RIN 9000-AJ32
Federal Acquisition Regulation; HUBZone Program Applicability
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
that amends the Federal Acquisition Regulation (FAR) to simplify
current FAR language that expands the applicability of the HUBZone
Program to all agencies covered by the FAR after September 30, 2000.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Rhonda Cundiff, Procurement Analyst, at (202) 501-
0044. Please cite FAC 2001-06, FAR case 2001-003.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends and simplifies language at FAR Parts 12, 19,
and 52. Current FAR language expands the applicability of the HUBZone
Program to all agencies covered by the FAR after September 30, 2000.
Initially, procurements under the HUBZone Program applied to a limited
list of Federal agencies. Under Section 602(b) of the HUBZone Act of
1997 (Title VI of Pub. L. 105-135), this initial limited applicability
expired on September 30, 2000.
The purpose of the program is to provide Federal contracting
assistance for qualified small business concerns located in
historically underutilized business zones in an effort to increase
employment opportunities, investment, and economic development in these
areas. The program provides for set-asides, sole-source awards, and
price evaluation preferences for HUBZone small business concerns and
establishes goals for awards to such concerns.
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
This final rule does not constitute a significant FAR revision
within the meaning of FAR 1.501 and Public Law 98-577, and publication
for public comments is not required. However, the Councils will
consider comments from small entities concerning the affected FAR Parts
12, 19, and 52 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.
(FAC 2001-06, FAR case 2001-003), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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.
List of Subjects in 48 CFR Parts 12, 19, and 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 12, 19, and 52 as
set forth below:
1. The authority citation for 48 CFR parts 12, 19, 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).
PART 12--ACQUISITION OF COMMERCIAL ITEMS
2. Amend section 12.301 by revising the introductory text of
paragraph (b) and (b)(2) to read as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(b) Insert the following provisions in solicitations for the
acquisition of commercial items, and clauses in solicitations and
contracts for the acquisition of commercial items:
* * * * *
(2) The provision at 52.212-3, Offeror Representations and
Certifications--Commercial Items. This provision provides a single,
consolidated list of certifications and representations for the
acquisition of commercial items and is attached to the solicitation for
offerors to complete and return with their offer. This provision may
not be tailored except in accordance with Subpart 1.4. Use the
provision with its Alternate I in solicitations issued by DoD, NASA, or
the Coast Guard that are expected to exceed the threshold at 4.601(a).
Use the provision with its Alternate II in solicitations for
acquisitions for which small disadvantaged business procurement
mechanisms are authorized on a regional basis;
* * * * *
[[Page 13066]]
PART 19--SMALL BUSINESS PROGRAMS
19.307 [Amended]
3. Amend section 19.307 by removing paragraph (a)(2); by
redesignating paragraph (a)(3) as (a)(2); in the newly designated
paragraph (a)(2) by removing "Alternate II" and adding "Alternate
I" in its place; and in paragraph (c) by removing "and contracts".
4. Revise section 19.1302 to reads as follows:
19.1302 Applicability.
The procedures in this subpart apply to all Federal agencies that
employ one or more contracting officers.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
5. Amend section 52.212-3 by revising the date of the provision; by
adding paragraph (c)(10); by revising the introductory text of
Alternate I; by redesignating paragraph (c)(10) of Alternate I as
(c)(11); and by removing Alternate III. The revised and added text
reads as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Apr 2002)
* * * * *
(c) * * *
(10) HUBZone small business concern. [Complete only if the
offeror represented itself as a small business concern in paragraph
(c)(1) of this provision.] The offeror represents, as part of its
offer, that--
(i) It [ ] is, [ ] is not a HUBZone small business concern
listed, on the date of this representation, on the List of Qualified
HUBZone Small Business Concerns maintained by the Small Business
Administration, and no material change in ownership and control,
principal place of ownership, or HUBZone employee percentage has
occurred since it was certified by the Small Business Administration
in accordance with 13 CFR part 126; and
(ii) It [ ] is, [ ] is not a joint venture that complies with
the requirements of 13 CFR part 126, and the representation in
paragraph (c)(10)(i) of this provision is accurate for the HUBZone
small business concern or concerns that are participating on the
joint venture. [The offeror shall enter the name or names of the
HUBZone small business concern or concerns that are participating in
the joint venture:____________.] Each HUBZone small business concern
participating in the joint venture shall submit a separate signed
copy of the HUBZone representation.
* * * * *
Alternate I (Apr 2002). As prescribed in 12.301(b)(2), add the
following paragraph (c)(11) to the basic provision:
* * * * *
6. Amend section 52.219-1 by revising the date of the provision; by
adding paragraph (b)(6); by removing Alternate I and redesignating
Alternate II as Alternate I; and by revising the introductory text of
the newly designated Alternate I to read as follows:
52.219-1 Small Business Program Representations.
* * * * *
Small Business Program Representations (Apr 2002)
* * * * *
(b) * * *
(6) [Complete only if the offeror represented itself as a small
business concern in paragraph (b)(1) of this provision.] The offeror
represents, as part of its offer, that--
(i) It [ ] is, [ ] is not a HUBZone small business concern
listed, on the date of this representation, on the List of Qualified
HUBZone Small Business Concerns maintained by the Small Business
Administration, and no material change in ownership and control,
principal office, or HUBZone employee percentage has occurred since
it was certified by the Small Business Administration in accordance
with 13 CFR part 126; and
(ii) It [ ] is, [ ] is not a joint venture that complies with
the requirements of 13 CFR part 126, and the representation in
paragraph (b)(6)(i) of this provision is accurate for the HUBZone
small business concern or concerns that are participating in the
joint venture. [The offeror shall enter the name or names of the
HUBZone small business concern or concerns that are participating in
the joint venture:____________.] Each HUBZone small business concern
participating in the joint venture shall submit a separate signed
copy of the HUBZone representation.
* * * * *
Alternate I (Apr 2002). As prescribed in 19.307(a)(2), add the
following paragraph (b)(7) to the basic provision:
* * * * *
[FR Doc. 02-5825 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13066-13067]
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[DOCID:fr20mr02-28]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 52
[FAC 2001-06; FAR Case 1999-612; Item VII]
RIN 9000-AI95
Federal Acquisition Regulation; Application of Labor Clauses
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) by revising the
clause, Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items), to clarify the application of labor clauses below
the simplified acquisition threshold. The Councils also revised the
Equal Opportunity clause to incorporate the exception for work
performed outside the United States.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Linda Nelson, Procurement Analyst, at (202) 501-
1900. Please cite FAC 2001-06, FAR case 1999-612.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule--
1. Moves the Prohibition of Segregated Facilities clause from the
list at paragraph (b), to the list at paragraph (a), of the clause at
52.213-4 and clarifies the existing requirements of 41 CFR 60-1.8,
promulgated by the Department of Labor under E.O. 11246. The
Prohibition of Segregated Facilities clause must be included in
contracts whenever the Equal Opportunity clause (FAR 52.222-26) is
included.
2. Moves the Equal Opportunity clause from the list at paragraph
(b), to the list at paragraph (a), of the clause at 52.213-4 because
the clause must be included in almost all contracts, even those under
$10,000, in accordance with the requirements at FAR 22.802(a)(1)
[[Page 13067]]
and 22.807(b). Even though included, the clause is inapplicable unless
the aggregate value of contracts and subcontracts awarded to the
contractor exceeds $10,000 in a year.
3. Makes other revisions to paragraphs (b)(1)(i), (b)(1)(v), and
(b)(1)(vii) of the clause at FAR 52.213-4, and paragraph (a) of the
clause at FAR 52.222-26, relating to geographic applicability of labor
clauses, to comply with the current regulations at FAR 22.603,
22.807(b)(2), 22.1001, 22.1003-2, and 22.1408(a)(1).
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 65 FR 64298, October 26, 2000. Two respondents submitted
public comments. One respondent is in favor of the rule, while the
other commenter believes the 52.222-36 clause change creates a double
standard, strongly favoring Americans, while making non-Americans
working outside the United States susceptible to abuses by contractors.
The Councils believe that the comment is outside the scope of the rule.
The clause at 52.222-36 does not apply to employees recruited outside
the United States for work performed outside the United States. This
has been in the FAR since this FAR subpart was written in 1984. It is
in the Department of Labor regulation which is the source of the FAR
subpart (see 41 CFR 60-741.4(a)(4)). The concept is that the country in
which the work is performed has the sovereignty to write its own laws
regarding affirmative action of those disabled workers. This case
confirms that this long-standing exception applies to items whether
commercial or noncommercial. Accordingly, the comments resulted in no
change to the rule.
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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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 this rule only
clarifies the existing requirements.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the 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.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth
below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
1. The authority citation for 48 CFR part 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. Amend section 52.213-4 by--
a. Revising the date of the clause;
b. Redesignating paragraphs (a)(1)(ii) and (a)(1)(iii) as
(a)(1)(iv) and (a)(1)(v), respectively, and adding new paragraphs
(a)(1)(ii) and (a)(1)(iii);
c. Removing paragraphs (b)(1)(ii) and (b)(1)(iii), and
redesignating paragraphs (b)(1)(iv) through (b)(1)(xiii) as (b)(1)(ii)
through (b)(1)(xi), respectively; and
d. Revising paragraph (b)(1)(i) and newly designated paragraphs
(b)(1)(iii) and (b)(1)(v).
The added and revised text reads as follows:
52.213-4 Terms and Conditions Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items) (Apr 2002)
(a) * * *
(1) * * *
(ii) 52.222-21, Prohibition of Segregated Facilities (Feb 1999)
(E.O. 11246).
(iii) 52.222-26, Equal Opportunity (Apr 2002) (E.O. 11246).
* * * * *
(b) * * *
(1)
(i) 52.222-20, Walsh-Healey Public Contracts Act (Dec 1996) (41
U.S.C. 35-45) (Applies to supply contracts over $10,000 in the
United States, Puerto Rico, or the U.S. Virgin Islands).
* * * * *
(iii) 52.222-36, Affirmative Action for Workers with
Disabilities (June 1998) (29 U.S.C. 793). (Applies to contracts over
$10,000, unless the work is to be performed outside the United
States by employees recruited outside the United States.) (For
purposes of this clause, United States includes the 50 States, the
District of Columbia, Puerto Rico, the Northern Mariana Islands,
American Samoa, Guam, the U.S. Virgin Islands, and Wake Island.)
* * * * *
(v) 52.222-41, Service Contract Act of 1965, As Amended (May
1989) (41 U.S.C. 351, et seq.) (Applies to service contracts over
$2,500 that are subject to the Service Contract Act and will be
performed in the United States, District of Columbia, Puerto Rico,
the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin
Islands, Johnston Island, Wake Island, or the outer continental
shelf lands).
* * * * *
3. Amend section 52.222-26 by--
a. Revising the date of the clause;
b. Removing the paragraph designation and the introductory text of
paragraph (b);
c. Redesignating paragraph (a) as paragraph (b) and revising the
introductory text; and
d. Adding a new paragraph (a).
The added and revised text reads as follows:
52.222-26 Equal Opportunity.
* * * * *
Equal Opportunity (Apr 2002)
(a) Definition. United States, as used in this clause, means the
50 States, the District of Columbia, Puerto Rico, the Northern
Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and
Wake Island.
(b) If, during any 12-month period (including the 12 months
preceding the award of this contract), the Contractor has been or is
awarded nonexempt Federal contracts and/or subcontracts that have an
aggregate value in excess of $10,000, the Contractor shall comply
with paragraphs (b)(1) through (b)(11) of this clause, except for
work performed outside the United States by employees who were not
recruited within the United States. Upon request, the Contractor
shall provide information necessary to determine the applicability
of this clause.
* * * * *
[FR Doc. 02-5826 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13067-13068]
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[DOCID:fr20mr02-29]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 5, 6, 9, 31, and 52
[FAC 2001-06; Item VIII]
Federal Acquisition Regulation; Technical Amendments
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
[[Page 13068]]
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: This document makes amendments to the Federal Acquisition
Regulation in order to update references and make editorial changes.
DATES: Effective Date: April 4, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755. Please cite FAC 2001-
06, Technical Amendments.
List of Subjects in 48 CFR Parts 1, 5, 6, 9, 31, and 52
Government procurement.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 1, 5, 6, 9, and 52
as set forth below:
1. The authority citation for 48 CFR parts 1, 5, 6, 9, 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).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.404 [Amended]
2. Amend section 1.404 in paragraph (c) by removing "Associate"
and adding "Assistant" in its place.
PART 5--PUBLICIZING CONTRACT ACTIONS
5.207 [Amended]
3. Amend section 5.207(c)(4) in paragraph 6. of "Format Item and
Explanation/Description of Entry" by removing "5.207(g)" and adding
"5.207(h)" in its place.
PART 6--COMPETITION REQUIREMENTS
6.302-5 [Amended]
4. Amend section 6.302-5 in paragraph (b)(2) by removing the word
"Handicapped" and adding "Disabled" in its place.
PART 9--CONTRACTOR QUALIFICATIONS
9.104-3 [Amended]
5. Amend section 9.104-3 in paragraph (c) by removing "(see
Affiliates and Concerns in 19.101)" and adding "(see Concern in
19.001 and Affiliates in 19.101)" in its place.
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
31.101 [Amended]
6. Amend section 31.101 in the next-to-the-last sentence by
removing "Associate" and adding "Assistant" in its place.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.219-19 [Amended]
7. Amend section 52.219-19 in the introductory text by removing
"19.1007(a)" and adding "19.1008(a)" in its place.
52.219-20 [Amended]
8. Amend section 52.219-20 in the introductory text by removing
"19.1007(b)" and adding "19.1008(b)" in its place.
[FR Doc. 02-5827 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P
[Federal Register: March 20, 2002 (Volume 67, Number 54)]
[Rules and Regulations]
[Page 13068-13069]
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[DOCID:fr20mr02-30]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Regulation; Small Entity Compliance Guide
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Small Entity Compliance Guide.
-----------------------------------------------------------------------
SUMMARY: This document is issued under the joint authority of the
Secretary of Defense, the Administrator of General Services and the
Administrator for the National Aeronautics and Space Administration.
This Small Entity Compliance Guide has been prepared in accordance with
Section 212 of the Small Business Regulatory Enforcement Fairness Act
of 1996 (Public Law 104-121). It consists of a summary of rules
appearing in Federal Acquisition Circular (FAC) 2001-06 which amend the
FAR. An asterisk (*) next to a rule indicates that a Regulatory
Flexibility Analysis has been prepared in accordance with 5 U.S.C. 604.
Interested parties may obtain further information regarding these rules
by referring to FAC 2001-06 which precedes this document. These
documents are also available via the Internet at http://www.arnet.gov/
far.
FOR FURTHER INFORMATION CONTACT: Laurie Duarte, FAR Secretariat, (202)
501-4225. For clarification of content, contact the analyst whose name
appears in the table below.
List of Rules in FAC 2001-06
----------------------------------------------------------------------------------------------------------------
Item Subject FAR case Analyst
----------------------------------------------------------------------------------------------------------------
I.............................. Commercial Items--Standard Form 2000-012 Moss.
1449.
II............................. Definitions for "Contract 2000-402 Moss.
Action" and "Contracting
Action".
III............................ Definitions for Sealed Bid and 2000-403 DeStefano.
Negotiated Procurements.
IV............................. Procurement Integrity Rewrite.. 1998-024 DeStefano.
V.............................. Acquisition of Helium.......... 2000-008 Nelson.
VI............................. HUBZone Program Applicability.. 2001-003 Cundiff.
VII............................ Application of Labor Clauses... 1999-612 Nelson.
VIII........................... Technical Amendments...........
----------------------------------------------------------------------------------------------------------------
Item I--Commercial Items--SF 1449 (FAR Case 2000-012)
Standard Form 1449, Solicitation/Contract/Order for Commercial
Items, is prescribed by the FAR for the acquisition of commercial
items. This final rule makes several minor revisions to the form,
including the addition of a block to indicate that the acquisition is a
HUBZone set-aside, the substitution of a NAICS code for the SIC code,
the notation that award is made only on the offeror's items
specifically listed in block 29, and the addition of several blocks in
the area of the form used as a receiving report by the Government. All
of the changes involve blocks that are completed by the Government.
[[Page 13069]]
Item II--Definitions for "Contract Action" and "Contracting
Action" (FAR Case 2000-402)
This final rule amends the FAR to provide for consistent use of the
term "contract action." The rule changes the term "contracting
action" to "contract action" throughout the FAR and makes other
editorial changes to clarify the text.
Item III--Definitions for Sealed Bid and Negotiated Procurements
(FAR Case 2000-403)
This final rule amends the FAR to clarify definitions that are used
for sealed bid and negotiated procurements. The final rule--
Moves the definitions of "bid sample" and "descriptive
literature" from FAR Part 14 to FAR 2.101 because the definitions
apply to more than one FAR part, e.g., parts 14 and 15;
Amends those definitions and the definition of "offer"
in accordance with plain language guidelines;
Revises applicable provisions in FAR Part 52 to conform
with the new definitions;
Adds a new definition for "solicitation" at FAR 2.101;
and
Provides definitions for "bid" and "bidder" in FAR
Part 28 because, as used in that part, the terms address sealed bid and
negotiated acquisitions.
The rule clarifies terminology used in FAR 15.201(f), 15.609(e),
and 35.007(g). Where we mean an entity that is actively seeking a
contract, we use the term "prospective offeror." However, those cites
describe processes that are set up to ensure fair and open competition.
Therefore, any interested party is able to participate, including
parties that the Government has not yet identified. Therefore, the rule
uses the more general term "potential offeror."
Item IV--Procurement Integrity Rewrite (FAR Case 1998-024)
This final rule amends FAR parts 2, 3, 4, 9, 15, and 52 to rewrite
the procurement integrity coverage (the implementation of section 27 of
the Office of Federal Procurement Policy Act (41 U.S.C. 423) (more
commonly referred to as the Procurement Integrity Act)) in plain
language.
FAR 3.104 implements prohibitions, restrictions, and other
requirements of the Procurement Integrity Act that are placed on
certain agency officials that participate in Federal agency
procurements. However, other statutes and regulations also govern the
conduct of Government employees. While specific guidance pertaining to
the Procurement Integrity Act at FAR 3.104 does not implement these
other statutes and regulations, the rule does add guidance to alert
these agency officials that they should seek advice from agency ethics
officials before engaging in certain activities that could have serious
consequences, including criminal prosecution.
These revisions to FAR 3.104 do not change either the requirements
of the Procurement Integrity Act or change, in any manner, who is
covered by, or the activities covered in, Office of Government Ethics
regulations interpreting conflict of interest statutes.
Item V--Acquisition of Helium (FAR Case 2000-008)
This final rule revises FAR Subpart 8.5 and the clause at 52.208-8
to implement the Department of the Interior final rule regarding helium
contracts that was published in the Federal Register at 63 FR 66760,
December 3, 1998. The final rule--
Changes the definitions;
Eliminates the requirement for certain contractors and
subcontractors to submit helium forecasts; and
Establishes the requirement that contractors and
subcontractors under contracts with a major helium requirement must
report purchases of helium from Federal helium suppliers.
Item VI--HUBZone Program Applicability (FAR Case 2001-003)
The HUBZone Act of 1997 expanded the applicability of the HUBZONE
Program to all agencies covered by the FAR after September 30, 2000,
and is currently reflected in the FAR. This rule amends the FAR to
simplify the existing language at FAR parts 12, 19, and 52.
Item VII--Application of Labor Clauses (FAR Case 1999-612)
This final rule affects all contracting officers who use the FAR.
The rule--
Moves the Prohibition of Segregated Facilities clause from
the list at paragraph (b), to the list at paragraph (a), of the clause
at 52.213-4 and clarifies the existing requirements of 41 CFR 60-1.8,
promulgated by the Department of Labor under E.O. 11246. The
Prohibition of Segregated Facilities clause must be included in
contracts whenever the Equal Opportunity clause (FAR 52.222-26) is
included.
Moves the Equal Opportunity clause from the list at
paragraph (b), to the list at paragraph (a), of the clause at 52.213-4
because the clause must be included in almost all contracts, even those
under $10,000, in accordance with the requirements at FAR 22.802(a)(1)
and 22.807(b). Even though included, the clause is inapplicable unless
the aggregate value of contracts and subcontracts awarded to the
contractor exceeds $10,000 in a year.
Makes other revisions to the clause at FAR 52.222-26,
Equal Opportunity, to include a definition of "United States" and
incorporate the exception for work performed outside the United States.
Item VIII--Technical Amendments
These amendments update sections and make editorial changes at FAR
1.404, 5.207, 6.302-5, 9.104-3, 31.101, 52.219-19, and 52.219-20.
Dated: March 6, 2002.
Al Matera,
Director, Acquisition Policy Division.
[FR Doc. 02-5828 Filed 3-19-02; 8:45 am]
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