2016-27684. Federal Acquisition Regulation: Removal of Regulations Relating to Telegraphic Communication

AGENCY:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Final rule.

SUMMARY:

DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to delete the use of “telegram,” “telegraph,” and related terms. The objective is to delete references to obsolete technologies no longer in use and replace with references to electronic communications. In addition, conforming changes are made regarding expedited notices of termination and change orders.

DATES:

Effective: December 19, 2016.

FOR FURTHER INFORMATION CONTACT:

Ms. Camara Francis, Procurement Analyst, at 202-550-0935 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAC 2005-92, FAR Case 2015-035.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA published a proposed rule in Federal Register at 81 FR 36245 on June 6, 2016, soliciting public comments on this rule, to amend the FAR to delete the use of the terms “telegram,” “telegraph,” “telegraphic,” and related terminology and make conforming changes to the instructions for expedited notices of termination and change orders.

This rule is consistent with the Office of Federal Procurement Policy (OFPP) memorandum dated December 4, 2014, on transforming the marketplace, which describes ongoing actions to support the needs of a 21st century Government.

Two public comments were received supporting the changes.

II. Discussion and Analysis

The Councils reviewed the public comments in development of the final rule.

A. Summary of Significant Changes

There were no changes made to the rule as a result of the comments received.

B. Analysis of Public Comments

Comment: Two respondents expressed support for the changes, highlighting the benefit of removing outdated terms and modernizing technologies and regulations.

Response: The Government notes the public support for this rule.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows:

The final rule amends the Federal Acquisition Regulation (FAR) to delete the use of “telegram,” “telegraph,” and related terms. These terms are replaced with an option for electronic communications. The objective is to delete obsolete technologies no longer in use within the context of the FAR requirements. This proposed rule is consistent with the Office of Federal Procurement Policy (OFPP) memorandum dated December 4, 2014, on transforming the marketplace, which describes ongoing actions to support the needs of a 21st century Government.

There were no significant issues raised by the public in response to the Initial Regulatory Flexibility Analysis provided in the proposed rule.

The final rule would apply to all entities, both small and other than small, performing as contractors or subcontractors on U.S. Government contracts. In 2014 there were about 350,000 active registrants in the System for Award Management (SAM). DoD, GSA, and NASA estimate approximately half of the registrants (175,000) are small entities that will receive a contract or subcontract in a given year. In 2014 small entities received 1,398,605 or about 9 percent of all actions in that year per the Federal Procurement Data System (FPDS). However, the small entities are not expected to be affected by this rule, as the only change provided in this rule is a revision of the means of disseminating contract termination documents between the Government and contractors. This change only affects the Government's responsibility for transmitting termination notices.

Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat Division. The Regulatory Secretariat Division has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration.

V. Paperwork Reduction Act

The rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 5, 14, 19, 22, 25, 28, 43, 47, 49, 52, and 53

• Government procurement

Dated: November 10, 2016.

William F. Clark,

Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 14, 19, 22, 25, 28, 43, 47, 49, 52, and 53 as follows:

1. The authority citation for 48 CFR parts 5, 14, 19, 22, 25, 28, 43, 47, 49, 52, and 53 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

PART 5—PUBLICIZING CONTRACT ACTIONS

5.504

[Amended]

2. Amend section 5.504 by removing from paragraph (d) “telegrams,”.

PART 14—SEALED BIDDING

14.201-6

[Amended]

3. Amend section 14.201-6 by removing and reserving paragraph (g).

14.202-2

[Removed and Reserved]

4. Remove and reserve section 14.202-2.

5. Amend section 14.208 by revising paragraph (b) to read as follows:

14.208

Amendment of invitation for bids.

* * * * *

(b) Before amending an invitation for bids, the contracting officer shall consider the period of time remaining until bid opening and the need to extend this period.

* * * * *

14.301

[Amended]

6. Amend section 14.301 by removing paragraph (b) and redesignating paragraphs (c) through (e) as paragraphs (b) through (d), respectively.

7. Revise section 14.302 to read as follows:

14.302

Bid submission.

Bids shall be submitted so that they will be received in the office designated in the invitation for bids not later than the exact time set for opening of bids.

8. Amend section 14.303 by revising paragraph (a) to read as follows:

14.303

Modification or withdrawal of bids.

(a) Bids may be modified or withdrawn by any method authorized by the solicitation, if notice is received in the office designated in the solicitation not later than the exact time set for opening of bids. If the solicitation authorizes facsimile bids, bids may be modified or withdrawn via facsimile received at any time before the exact time set for receipt of bids, subject to the conditions specified in the provision prescribed in 14.201-6(v). Modifications received by facsimile shall be sealed in an envelope by a proper official.

(1) The official shall—

(i) Write on the envelope—

(A) The date and time of receipt and by whom; and

(B) The number of invitation for bids; and

(ii) Sign the envelope.

(2) No information contained in the envelope shall be disclosed before the time set for bid opening.

* * * * *

14.407-3

[Amended]

9. Amend section 14.407-3 by removing paragraph (g)(4) and redesignating paragraph (g)(5) as (g)(4).

14.408-1

[Amended]

10. Amend section 14.408-1 by removing from paragraph (d)(2) “telegrams or electronic transmissions” and adding “electronic communications” in its place.

PART 19—SMALL BUSINESS PROGRAMS

19.302

[Amended]

11. Amend section 19.302 by removing from paragraph (d)(1)(ii) “telegram,”.

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

22.1003-3

[Amended]

12. Amend section 22.1003-3 by removing from paragraph (d) “telegraph,”.

PART 25—FOREIGN ACQUISITION

25.401

[Amended]

13. Amend section 25.401, in the table, by removing from paragraph (b)(2)(iii) “telegraph services,”, and removing “ 47 U.S.C. 153(20)” and adding “47 U.S.C. 153(24)” in its place.

PART 28—BONDS AND INSURANCE

28.101-4

[Amended]

14. Amend section 28.101-4 by removing paragraph (c)(6) and redesignating paragraphs (c)(7) through (9) as paragraphs (c)(6) through (8), respectively.

PART 43—CONTRACT MODIFICATIONS

15. Amend section 43.201 by revising paragraph (c) to read as follows:

43.201

General.

* * * * *

(c) The contracting officer may issue a change order by electronic means without a SF 30 under unusual or urgent circumstances, provided that the message contains substantially the information required by the SF 30 and immediate action is taken to issue the SF 30.

PART 47—TRANSPORTATION

16. Amend section 47.305-10 by revising paragraph (c) to read as follows:

47.305-10

Packing, marking, and consignment instructions.

* * * * *

(c) If necessary to meet required delivery schedules, the contracting officer may issue instructions by telephone or electronic means. The contracting officer shall confirm telephonic instructions in writing, and confirm electronic instructions if the contracting officer did not receive confirmation of receipt.

* * * * *

PART 49—TERMINATION OF CONTRACTS

17. Amend section 49.102 by revising the introductory text of paragraph (a) to read as follows:

49.102

Notice of termination.

(a) General. The contracting officer shall terminate contracts for convenience or default only by a written notice to the contractor (see 49.601). The notice of termination may be expedited by means of electronic communication capable of providing confirmation of receipt by the contractor. When the notice is mailed, it shall be sent by certified mail, return receipt requested. When the contracting office arranges for hand delivery of the notice, a written acknowledgment shall be obtained from the contractor. The notice shall state—

* * * * *

18. Amend section 49.601-1 by—

a. Revising the section heading;

b. Adding introductory text;

c. Removing from paragraph (a) “telegraphic”, “[ insert “immediately””, and “Telegraph”, and adding “electronic”, “[insert “immediately, (today's date)””, and “Provide by electronic means” in their places, respectively; and

d. Removing from paragraph (b) “telegraphic”, “[ insert “immediately””, and “Telegraph”, and adding “electronic”, “[insert “immediately, (today's date)””, and “Provide by electronic means” in their places, respectively.

The revision and addition reads as follows:

49.601-1

Electronic notice.

The contracting officer may provide expedited notice of termination by electronic means that includes a requirement for the contractor to confirm receipt. If the contractor does not confirm receipt promptly, the contracting officer shall resend the notice electronically, and expedite the letter notice described in 49.601-2. If confirmation of the electronic notice is received, and the electronic notice includes all content in 49.601-2, the contracting officer need not send the letter notice described in 49.601-2.

* * * * *

19. Amend section 49.601-2 by—

a. Revising the third and fourth sentences of the introductory text;

b. Removing from paragraph (a), “telegram” and adding “electronic notice” in its places (two times); and

c. Revising the introductory text of the Alternate notice.

The revisions read as follows:

49.601-2

Letter notice.

* * * This notice shall be sent by certified mail, return receipt requested, or electronically, provided evidence of receipt is received by the contracting officer. If no prior electronic notice was issued, or if no confirmation of an electronic notice was received, use the alternate notice that follows this notice.

* * * * *

Alternate notice. Substitute the following paragraph (a) for paragraph (a) of 49.601-2, Notice of Termination to Prime Contractors, if no prior electronic notice was issued, or if no confirmation of an electronic notice was received:

* * * * *

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

20. Amend section 52.214-3 by revising the date of the provision and paragraph (b) to read as follows:

52.214-3

Amendments to Invitations for Bids.

* * * * *

Amendments to Invitations for Bids DEC 2016

* * * * *

(b)(1) Bidders shall acknowledge receipt of any amendment to this solicitation—

(i) By signing and returning the amendment;

(ii) By identifying the amendment number and date in space provided for this purpose on the form for submitting a bid;

(iii) By letter;

(iv) By facsimile, if facsimile bids are authorized in the solicitation; or

(v) By email, if email bids are authorized in the solicitation.

(2) The Government must receive the acknowledgement by the time and at the place specified for receipt of bids.

21. Amend section 52.214-5 by—

a. Revising the date of the provision;

b. Removing paragraph (c); and

c. Redesignating paragraphs (d) and (e), as paragraphs (c) and (d), respectively.

The revision reads as follows:

52.214-5

Submission of Bids.

* * * * *

Submission of Bids Dec 2016

* * * * *

52.214-13

[Removed and Reserved]

22. Remove and reserve section 52.214-13.

PART 53—FORMS

53.213

[Amended]

23. Amend section 53.213 by removing from paragraph (b) “( 10/83)” and adding “(11/2016)” in its place.

53.215-1

[Amended]

24. Amend section 53.215-1 by removing from paragraph (b) “( 10/83)” and adding “(11/2016)” in its place.

53.243

[Amended]

25. Amend section 53.243, introductory text, by removing “( 10/83)” and adding “(11/2016)” in its place.

26. Revise 53.301-30 to read as follows:

53.301-30

SF 30, Amendment of Solicitation/Modification of Contract.