[Federal Register Volume 61, Number 93 (Monday, May 13, 1996)]
[Rules and Regulations]
[Pages 21975-21978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11918]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF ENERGY
48 CFR Parts 904, 906, 911, 912, 913, 915, 919, 925, 926, 933, 950,
952 and 970
RIN 1991-AB27
Acquisition Regulation; Technical Amendments
AGENCY: Department of Energy.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Energy (DOE) today issues a final rule to
make technical, non-substantive amendments to the Department of Energy
Acquisition Regulation (DEAR). The Federal Acquisition Regulation (FAR)
was amended several times to implement various parts of the Federal
Acquisition Streamlining Act of 1994, Public Law 103-355. This rule
amends sections of the DEAR to conform to the revised provisions of the
FAR.
EFFECTIVE DATE: This final rule will be effective June 12, 1996.
FOR FURTHER INFORMATION CONTACT: Richard B. Langston, Office of Policy
(HR-51), Office of the Deputy Assistant Secretary for Procurement and
Assistance Management, Department of Energy, 1000 Independence Avenue,
SW., Washington, DC 20585 (202) 586-8247.
SUPPLEMENTARY INFORMATION:
I. Explanation of Revisions
II. Procedural Requirements
A. Review Under Executive Order 12866
B. Review Under Executive Order 12778
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. Review Under the National Environmental Policy Act
G. Public Hearing Determination
I. Explanation of Revisions
The revisions in this rule are either technical and nonsubstantive
in nature, or nondiscretionary. They involve the renumbering or
redesignating of DEAR sections or subsections, or the substitution of
new terminology for designations previously used to describe ``small
purchases'' and ``small and small disadvantaged businesses.'' These
revisions are intended to ensure that the DEAR conforms to the FAR to
implement various parts of the Federal Acquisition Streamlining Act of
1994, Public Law 103-355. Three amendments to the FAR created a need
for this technical amendment of the DEAR. New FAR regulations governing
micropurchases, i.e., acquisitions below $2,500, and simplified
acquisitions, i.e., acquisitions exceeding the micropurchase level but
not greater than $100,000, were published respectively on December 15,
1994 at 59 FR 64786 and July 3, 1995 at 60 FR 34741. These two
amendments require changes at DEAR Parts 901, 904, 906, 913, 915, 925,
952 and 970. The third amendment affected provisions dealing with
commercial items, small business, and protests. It was published on
September 18, 1995, at 60 FR 48206. It requires changes at DEAR Parts
911, 912, 919, 926, and 933.
II. Procedural Requirements
A. Review Under Executive Order 12866
This regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review'' (58 FR 51735, October 4, 1993).
Accordingly, this action was not subject to review, under that
Executive Order, by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing regulations. These requirements, set forth in sections 2 (a)
and (b), include eliminating drafting errors and needless ambiguity,
drafting the regulations to minimize litigation, providing clear and
certain legal standards for affected legal conduct, and promoting
simplification and burden reduction. Agencies are also instructed to
make every reasonable effort to ensure that the regulation specifies
clearly any preemptive effect, effect on existing Federal law or
regulation, and retroactive effect; describes any administrative
proceedings to be available prior to judicial review and any provisions
for the exhaustion of such administrative proceedings; and defines key
terms. DOE certifies that this rule meets the requirements of sections
2 (a) and (b) of Executive Order 12778.
C. Review Under the Regulatory Flexibility Act
This rule was reviewed under the Regulatory Flexibility Act of
1980, Public Law 96-354, which requires preparation of a regulatory
flexibility analysis for any rule that is likely to have a significant
economic impact on a substantial number of small entities. This rule
will have no impact on interest rates, tax policies or liabilities, the
cost of goods or services, or other direct economic factors. It will
also not have any indirect economic consequences such as changed
construction rates. DOE certifies that this rule will not have a
significant economic impact on a substantial number of small entities
and, therefore, no regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required under
the
[[Page 21976]]
Paperwork Reduction Act of 1980 (44 U.S.C. 3501 et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on States, on the relationship between the Federal Government and the
States, or in the distribution of power and responsibilities among
various levels of government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. DOE has determined that
this rule will not have a substantial direct effect on the
institutional interests or traditional functions of States.
F. Review Under the National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321). Pursuant to Appendix A of Subpart D of
10 CFR 1021, National Environmental Policy Act Implementing Procedures
(Categorical Exclusion A6), DOE has determined that this rule is
categorically excluded from the need to prepare an environmental impact
statement or environmental assessment.
G. Prior Notice and Public Hearing Determination
The final regulations published in this notice are interpretive of
FAR provisions implementing the Federal Acquisition Streamlining Act of
1994, Public Law 103-355. They are non-discretionary in nature. DOE
therefore is not providing prior notice and opportunity for public
comment.
DOE also has concluded that this rule does not involve any
significant issues of law or fact. Therefore, consistent with 5 U.S.C.
553, DOE has not scheduled a public hearing.
List of Subjects in 48 CFR Parts 904, 906, 911, 912, 913, 915, 919,
925, 926, 933, 950, 952, and 970
Government procurement.
Issued in Washington, D.C., on April 25, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set out in the preamble, Chapter 9 of Title 48 of
the Code of Federal Regulations is amended as set forth below.
1. The authority citation for Parts 904, 906, 911, 912, 913, 915,
919, 925, 926, 933, 950, and 952 continues to read as follows:
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
1a. The authority citation for Part 970 continues to read:
Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C.
2201), sec. 644 of the Department of Energy Organization Act of
1977, Public Law 95-91 (42 U.S.C. 7254).
PART 904--ADMINISTRATIVE MATTERS
Sec. 904.7103 [Amended]
2. Section 904.7103, ``Solicitation provision and contract clause''
is amended, at both paragraphs (a) and (b), by revising the words
``small purchase or other simplified purchase'' to read ``simplified
acquisition.''
PART 906--COMPETITION REQUIREMENTS
Sec. 906.303-1 [Amended]
3. Subsection 906.303-1(a), Requirements, is amended by removing
the final sentence.
PART 912--[REDESIGNATED AS PART 911]
4. Part 912 is redesignated Part 911 (Part 912 is reserved). The
heading for the new 911 is ``DESCRIBING AGENCY NEEDS.''
Sec. 912.300, 912.302, 912.304 [Redesignated as 911.600, 911.602,
911.604]
a. Sections 912.300, 912.302, and 912.304 are redesignated 911.600,
911.602, and 911.604 respectively.
911.600 [Amended]
b. Newly redesignated Section 911.600 is amended by revising the
reference ``FAR subpart 12.3'' to read ``FAR subpart 911.6.''
Sec. 911.604 [Amended]
c. Newly designated Section 911.604 is amended:
i. in paragraph (a) by revising ``952.212-70'' to read ``952.211-
70'' and removing ``(JUNE 1987)'';
ii. in paragraph (b) by revising ``952.212-71'' to read ``952.211-
71'' and removing ``(JUNE 1987)'';
iii. in paragraph (c) by revising ``952.212-70'' and ``952.212-71''
to read ``952.211-70'' and ``952.211-71'' respectively;
iv. in paragraph (d) by revising ``952.212-70'' to read ``952.211-
70'' and removing ``(JUNE 1987)''; and,
v. in paragraph (e) by revising ``952.212-71'' to read ``952.211-
71'' and removing ``(JUNE 1987).''
PART 913--SIMPLIFIED ACQUISITION PROCEDURES
5. The Part heading for Part 913 is amended to read as set forth
above.
Sec. 913.505-1 [Amended]
6. Subsection 913.505-1 is amended as follows:
a. at paragraph (a)(2) by revising the words ``small purchase'' in
the first sentence to read ``simplified acquisition'';
b. by adding a new third sentence to read: 913.505-1 Optional Form
(OF) 347, Order for Supplies or Services, and Optional Form 348, Order
for Supplies or Services-Continuation or DOE F 4250.3, Order for
Supplies or Services.
* * * Standard Form 1449 shall be used for acquisitions of
commercial items.
c. by adding, at paragraph (b)(2), the words ``or Standard Form
1449'' after the words ``Optional Form 347.''
PART 915--CONTRACTING BY NEGOTIATION
915.970-8 [Amended]
7. Subsection 915.970-8 is amended at paragraph (f)(1), second
sentence, by removing the words ``labor surplus,'' and at paragraph
(f)(2)(i), first sentence, by revising the words ``small business and
small disadvantaged business'' to read ``small, small disadvantaged and
women-owned small business,'' by removing paragraph (f)(2)(ii), and by
redesignating subparagraph (f)(2)(iii) as (f)(2)(ii).
915.971-3 [Amended]
8. Subsection 915.971-3, is amended at paragraph (b)(viii), by
revising the words ``small and small disadvantaged'' to read ``small,
small disadvantaged and women-owned small.''
PART 919--SMALL BUSINESS PROGRAMS
9. The Part heading for Part 919 is revised to read as set forth
above.
919.201 [Amended]
10. Paragraph (c) of section 919.201 is amended in each of the
first three sentences, by revising the words ``small and small
disadvantaged'' to read
[[Page 21977]]
``small, small disadvantaged, and women-owned small'' and in the fourth
sentence, by revising the words ``small business/small disadvantaged
business (SB/DB) specialist'' to read ``small business specialist.''
919.501 [Amended]
11. Section 919.501, General, at the end of the first sentence of
paragraph (c), is amended by revising the words ``small purchase
limitation'' to read ``simplified acquisition threshold.''
919.602-1 [Amended]
12. Subsection 919.602-1, Referral, is amended at paragraph (a)(2)
by removing the words ``and disadvantaged.''
919.7 [Amended]
Subpart 919.7--Subcontracting with Small Business, Small
Disadvantaged Business, and Women-Owned Small Business Concerns
13. The heading of Subpart 919.7 is revised to read as set forth
above.
PART 925--FOREIGN ACQUISITION
925.901 [Amended]
14. Section 925.901, Omission of the examination of records clause,
is amended by revising its heading to read ``Omission of the audit
clause.'' and by revising ``48 CFR 25.903'' to read ``48 CFR 25.901.''
PART 926--OTHER SOCIOECONOMIC PROGRAMS
926.7003 [Amended]
15. Section 926.7003, Review of the procurement request, is amended
by removing ``/Labor Surplus Area Set Aside.''
PART 933--PROTESTS, DISPUTES, AND APPEALS
933.106 [Amended]
16. Section 933.106 is amended by revising the words ``for other
than small purchases'' to read ``above the simplified acquisition
threshold.''
PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS
950.7101 [Amended]
17. Section 950.7101, at paragraph (c)(2), first sentence, is
amended by revising the words ``small businesses and small
disadvantaged businesses'' to read ``small, small disadvantaged and
women-owned small businesses.''
PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
952.212 [Redesignated as 952.211]
18. Section 952.212 is redesignated 952.211. Its subsections are
amended as follows:
a. Subsections 952.212-70, 952.212-71, 952.212-72, and 952.212-73
are redesignated 952.211-70, 952.211-71, 952.211-72, and 952.211-73
respectively.
b. Redesignated subsection 952.211-70, is amended by revising the
reference ``912.304(a)'' to read ``911.604(a)'' in the introductory
paragraph and by revising the reference ``912.304(d)'' to read
``911.604(d)'' in Alternate I.
c. Redesignated 952.211-71 is amended by revising the reference
``912.304(b)'' to read ``911.604(b)'' in the introductory paragraph and
by revising the reference ``912.304(e)'' to read ``911.604(e)'' in
Alternate I.
952.226 [Amended]
19. Section 952.226 is amended at 952.226-70(c) in the first
sentence, 952.226-70(d) and 970.226-72(c)(2) by revising the words
``Small Business and Small Disadvantaged Business Subcontracting Plan''
to read ``Small, Small Disadvantaged and Women-Owned Subcontracting
Plan'' and at 952.226-71(b) by revising the words ``Utilization of
Small Business Concerns and Small Disadvantaged Business Concerns'' to
read ``Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns.''
952.250-70 [Amended]
20. Subsection 952.250-70, Nuclear hazards indemnity agreement, is
amended at paragraph (h) by removing the words ``Officials Not to
Benefit'' and revising the words ``Examination of Records by the
Comptroller General'' to read ``Audit and records--negotiation.''
PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS
970.19 Small, Small Disadvantaged and Women-Owned Small Business
Concerns
21. The heading of subpart 970.19 is revised to read as set forth
above.
970.5203-2 [Removed and reserved]
22. Subsection 970.5203-2, Examination of Records by the
Comptroller General, is removed and reserved.
970.5204-9 [Amended]
23. Subsection 970.5204-9, Accounts, records, and inspection, is
amended by revising paragraph (g) and adding paragraph (i). The revised
and added paragraphs read:
970.5204-9 Accounts, records, and inspection.
* * * * *
Accounts, Records, and Inspection (APR 1996)
* * * * *
(g) Subcontracts. The contractor further agrees to require the
inclusion of provisions similar to those in paragraphs (a) through
(g) and paragraph (i) of this clause in all subcontracts (including
fixed-price or unit-price subcontracts or purchase orders) of any
tier entered into hereunder where, under the terms of the
subcontract, costs incurred are a factor in determining the amount
payable to the subcontractor.
Note: If the prime contract contains a ``Defective Cost or
Pricing Data'' clause, this paragraph (g) shall be modified by
adding the following:
The contractor further agrees to include an ``Audit'' clause,
the substance of which is the ``Audit'' clause set forth at FAR
52.215-2, in each subcontract which does not include provisions
similar to those in paragraph (a) through paragraph (g) and
paragraph (i) of this clause, but which contains a ``defective cost
and pricing data'' clause.
* * * * *
(i) Comptroller General.
(1) The Comptroller General of the United States, or an
authorized representative, shall have access to and the right to
examine any of the contractor's directly pertinent records involving
transactions related to this contract or a subcontract hereunder.
(2) This paragraph may not be construed to require the
contractor or subcontractor to create or maintain any record that
the contractor or subcontractor does not maintain in the ordinary
course of business or pursuant to a provision of law.
(3) Nothing in this contract shall be deemed to preclude an
audit by the General Accounting Office of any transaction under this
contract.
970.5204-13 [Amended]
24. Subsection 970.5204-13, Allowable costs and fixed-fee
(Management and Operating contracts), at clause paragraph
(e)(36)(ii)(A), is amended by revising the words ``Small Businesses and
Small Disadvantaged Businesses'' (both sentences) to read ``small,
small disadvantaged and women-owned small businesses'' and by revising
the words ``Utilization of Small Business Concerns and Small
Disadvantaged Business Concerns'' to read ``Utilization of Small, Small
Disadvantaged and Women-Owned Small Business Concerns'' in the first
sentence.
[[Page 21978]]
970.5204-14 [Amended]
25. Subsection 970.5204-14, Allowable costs and fixed-fee (support
contracts), at paragraph (e)(34)(ii)(A), is amended by revising the
words ``Small Businesses and Small Disadvantaged Businesses'' (both
sentences) to read ``small, small disadvantaged and women-owned small
businesses'' and by revising the words ``Utilization of Small Business
Concerns and Small Disadvantaged Business Concerns'' to read
``Utilization of Small, Small Disadvantaged and Women-Owned Small
Business Concerns.'' (first sentence).
970.5204-44 [Amended]
26. Subsection 970.5204-44, Flowdown of contract requirements to
subcontracts, is amended by removing and reserving paragraph (b)(12),
Examination of Records by the Comptroller General, and revising the
title of subparagraph (b)(19) to read ``Accounts, Records, and
Inspection.''
[FR Doc. 96-11918 Filed 5-10-96; 8:45 am]
BILLING CODE 6450-01-P
