04-9014. Re-Issuance of the NASA FAR Supplement Subchapters A and B Consistent With the Federal Acquisition Regulations System Guidance and Policy

AGENCY:

National Aeronautics and Space Administration.

ACTION:

Final rule.

SUMMARY:

This rule adopts as final without change, the proposed rule published in the Federal Register on November 17, 2003 (68 FR 64847). This final rule amends the NASA FAR Supplement (NFS) by removing from the Code of Federal Regulations (CFR) those portions of the NFS containing information that consists of internal Agency administrative procedures and guidance that does not control the relationship between NASA and contractors or prospective contractors. This change is consistent with the guidance and policy in FAR Part 1 regarding what comprises the Federal Acquisition Regulations System and requires publication for public comment. The NFS document will continue to contain both information requiring codification in the CFR and internal Agency guidance in a single document that is available on the Internet. This change will reduce the administrative burden and time associated with maintaining the NFS by only publishing in the Federal Register for codification in the CFR material that is subject to public comment.

EFFECTIVE DATE:

April 22, 2004.

FOR FURTHER INFORMATION CONTACT:

Celeste Dalton, NASA, Office of Procurement, Contract Management Division (Code HK); [phone]; e-mail: [e-mail].

SUPPLEMENTARY INFORMATION:

A. Background

Currently the NASA FAR Supplement (NFS) contains information to implement or supplement the FAR. This information contains NASA's policies, procedures, contract clauses, solicitation provisions, and forms that govern the contracting process or otherwise control the relationship between NASA and contractors or prospective contractors. The NFS also contains information that consists of internal Agency administrative procedures and guidance that does not control the relationship between NASA and contractors or prospective contractors. Regardless of the nature of the information, as a policy, NASA has submitted to the Office of Information and Regulatory Affairs (OIRA) within the Office of Management and Budget (OMB) and published in the Federal Register all changes to the NFS. FAR 1.101 states in part that the “Federal Acquisition Regulations System consists of the Federal Acquisition Regulation (FAR), which is the primary document, and agency acquisition regulations that implement or supplement the FAR. The FAR System does not include internal agency guidance of the type described in 1.301(a)(2).” FAR 1.301(a)(2) states in part “an agency head may issue or authorize the issuance of internal agency guidance at any organizational level (e.g., designations and delegations of authority, assignments of responsibilities, work-flow procedures, and internal reporting requirements).” Further, FAR 1.303 states that issuances under FAR 1.301(a)(2) need not be published in the Federal Register. Based on the foregoing, NASA is not required to publish and codify internal Agency guidance.

This rule modifies the existing practice by only publishing those regulations which may have a significant effect beyond the internal operating procedures of the Agency or have a significant cost or administrative impact on contractors or offerors.

The NFS will continue to integrate into a single document both regulations subject to public comments and internal Agency guidance and procedures that do not require public comment. Those portions of the NFS that require public comment will continue to be amended by publishing changes in the Federal Register. NFS regulations that require public comment are issued as chapter 18 of title 48, CFR. Changes to portions of the regulations contained in the CFR, along with changes to internal guidance and procedures, will be incorporated into the NASA-maintained Internet version of the NFS through Procurement Notices (PNs). The single official NASA-maintained version of the NFS will remain available on the Internet. NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.

This change will result in savings in terms of the number of rules subject to publication in the Federal Register and provide greater responsiveness to internal administrative changes. NASA published a proposed rule in the Federal Register on November 17, 2003 (68 FR 64847). Comments were received from the Aerospace Industries Association (AIA). AIA recommended that section 1804.7102, Numbering scheme for solicitations, be retained in the CFR on the basis that it describes the numbering prefixes that identify NASA's sites and is useful to contractors. The numbering methodology is an administrative internal control procedure and does not require inclusion in the FAR System requiring public comment. This information will be retained in the integrated NFS document that will contain both regulations subject to public comments and internal Agency guidance and procedures that do not require public comment. The single document will continue to be available on the Internet. AIA also recommended that section 1807.7205, Public availability, be retained on the basis that it describes the Internet site where the public can get the annual NASA forecast of procurement opportunities. The rule proposed to revise section 1807.7200, Policy, to include the Internet site information contained in section 1807.7205. Retaining 1807.7205 would result in redundant coverage and is not necessary. No changes are made to the proposed rule as a result of comments received.

B. Regulatory Flexibility Act

NASA certifies that this final rule will not have a significant economic impact on a substantial number of small entities with the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601. et seq., because this rule only remove from the CFR information that is considered internal Agency administrative procedures and guidance. The information removed from the CFR will continue to be made available to the public via the Internet.

C. Paperwork Reduction Act

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

List of Subjects in 48 CFR Parts 1801, 1803 through 1809, 1811, and 1812

• Government Procurement

Tom Luedtke,

Assistant Administrator for Procurement.

Accordingly, 48 CFR Parts 1801, 1803 through 1809, 1811, and 1812 are amended as follows:

1. The authority citation for 48 CFR Parts 1801, 1803 through 1809, 1811, and 1812 continues to read as follows:

Authority: 42 U.S.C. 2473(c)(1).

PART 1801—FEDERAL ACQUISITION REGULATIONS SYSTEM

2. Revise section 1801.105-1 to read as follows:

1801.105-1

Publication and code arrangement.

(b)(i) The NFS is an integrated document that contains both acquisition regulations that require public comment and internal Agency guidance and procedures that do not require public comment. NASA personnel must comply with all regulatory and internal guidance and procedures contained in the NFS.

(ii) NFS regulations that require public comment are issued as chapter 18 of title 48, CFR.

(iii) The single official NASA-maintained version of the NFS is on the Internet (http://www.hq.nasa.gov/​office/​procurement/​regs/​nfstoc.htm).

3. Amend Part 1801 by removing Subparts 1801.2, 1801.3, 1801.4, 1810.6, and 1801.7.

PART 1803—IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF INTEREST

4. Amend Part 1803 by removing sections 1803.101, 1803.101-1, 1803.101-2, 1803.104-4, and 1803.104-7; and Subparts 1803.2, 1803.3, 1803.5, 1803.6, 1803.7, and 1803.8.

PART 1804—ADMINISTRATIVE MATTERS

5. Amend Part 1804 by removing section 1804.103, Subparts 1804.2, 1804.5, 1804.6, 1804.8, 1804.9, 1804.70, 1804.71, 1804.72, and 1804.73.

PART 1805—PUBLICIZING CONTRACT ACTIONS

6. Amend Part 1805 by—

(a) Removing Subparts 1805.1 and 1805.2;

(b) In section 1805.303, removing paragraphs (a)(i)(A), (a)(i)(B), (a)(ii), and (a)(iii);

(c) Removing sections 1805.303-70 and 1805.303-71; and

(d) Removing Subparts 1805.4 and 1805.5.

PART 1806—COMPETITION REQUIREMENTS

7. Amend Part 1806 by—

(a) In section 1806.202, removing paragraph (b); and

(b) Removing section 1806.202-70 and Subparts 1806.3 and 1806.5.

PART 1807—ACQUISITION PLANNING

8. Amend Part 1807 by—

(a) Removing sections 1807.103, 1807.104, 1807.105, and 1807.170;

(b) Revising section 1807.107-70;

(c) Removing Subparts 1807.2, 1807.3, 1807.5, 1807.70, and 1807.71;

(d) Revising section 1807.7200; and

(e) Removing sections 1807.7202, 1807.7203, 1807.7204, and 1807.7205.

Revised sections 1807.107-70 and 1807.7200 read as follows:

1807.107-70

Orders against Federal Supply Schedule contracts or other indefinite-delivery contracts awarded by another agency.

The FAR and NFS requirements for justification, review, and approval of bundling of contract requirements also apply to an order from a Federal Supply Schedule contract or other indefinite-delivery contract awarded by another agency if the requirements consolidated under the order meet the definition of “bundling” at FAR 2.101.

1807.7200

Policy.

(a) As required by the Business Opportunity Development Reform Act of 1988, it is NASA policy to—

(1) Prepare an annual forecast and semiannual update of expected contract opportunities or classes of contract opportunities for each fiscal year;

(2) Include in the forecast contract opportunities that small business concerns, including those owned and controlled by socially and economically disadvantaged individuals, may be capable of performing; and

(3) Make available such forecasts to the public.

(b) The annual forecast and semiannual update are available on the NASA Acquisition Internet Service (http://www.hq.nasa.gov/​office/​procurement/​).

PART 1808—REQUIRED SOURCES OF SUPPLIES AND SERVICES

9. Amend Part 1808 by removing sections 1808.003, 1808.003-70, 1808.003-71, 1808.003-72, 1808.003-73, Subparts 1808.1, 1808.4, 1808.6, 1808.7, section 1808.802, and Subpart 1808.11.

PART 1809—CONTRACTOR QUALIFICATIONS

10. Amend Part 1809 by removing sections 1809.106, 1809.106-1, 1809.106-2, 1809.106-3, 1809.106-70, 1809.200, 1809.202, 1809.203, 1809.203-70, 1809.203-71, paragraphs (b)(i) and (b)(ii) in section 1809.206-1, 1809.404, 1809.405, 1809.405-1, 1809.405-2, 1809.406, 1809.406-3, 1809.407, 1809.407-3, 1809.408, 1809.470, 1809.470-1, 1809.470-2, 1809.470-3, 1809.500, 1809.503, and 1809.506.

PART 1811—DESCRIBING AGENCY NEEDS

11. Amend Part 1811 by removing section 1811.002, Subpart 1811.1, sections 1811.403, 1811.403-70, 1811.404, and Subparts 1811.5 and 1811.6.

PART 1812—ACQUISITION OF COMMERCIAL ITEMS

12. Amend Part 1812 by removing Subpart 1812.1, section 1812.302 and Subpart 1812.4.