[Federal Register Volume 61, Number 178 (Thursday, September 12, 1996)]
[Proposed Rules]
[Pages 48354-48379]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-23169]
[[Page 48353]]
_______________________________________________________________________
Part V
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Parts 1, et al.
Federal Acquisition Regulation; Certification Requirements; Proposed
Rule
Federal Register / Vol. 61, No. 178 / Thursday, September 12, 1996 /
Proposed Rules
[[Page 48354]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 3, 4, 6, 8, 9, 12, 14, 16, 19, 22, 23, 25, 27, 29,
31, 32, 36, 37, 42, 45, 47, 49, 52 and 53
[FAR Case 96-312]
RIN 9000-AH23
Federal Acquisition Regulation; Certification Requirements
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
-----------------------------------------------------------------------
SUMMARY: The Administrator of the Office of Federal Procurement Policy
has requested that the Civilian Agency Acquisition Council and the
Defense Acquisition Regulations Council issue a proposal to amend the
Federal Acquisition Regulation (FAR) to remove particular certification
requirements for contractors and offerors. This regulatory action was
not subject to Office of Management and Budget review under Executive
Order 12866, dated September 30, 1993. This is not a major rule under 5
U.S.C. 804.
DATES: Comments should be submitted on or before November 12, 1996 to
be considered in the formulation of a final rule.
ADDRESSES: Interested parties should submit written comments to:
General Services Administration, FAR Secretariat (MVRS), 18th and F
Streets, NW., Room 4037 Washington, DC 20405.
Please cite FAR case 96-312 in all correspondence related to this
case.
FOR FURTHER INFORMATION CONTACT: Mr. Jack O'Neill at (202) 501-3856 in
reference to this FAR case. For general information, contact the FAR
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAR case 96-312.
SUPPLEMENTARY INFORMATION:
A. Background
The Administrator of the Office of Federal Procurement Policy has
reviewed the certifications in the FAR. The Federal Acquisition
Regulatory Council (FARC) has made recommendations as to the retention
of certain certifications and the Administrator has approved the
retention of certifications discussed herein. As a result, the
Administrator has issued a proposal which we are now publishing on
behalf of the Administrator of Federal Procurement Policy as a proposed
rule.
This proposed rule amends FAR Parts 1, 3, 4, 6, 8, 9, 12, 14, 16,
19, 22, 23, 25, 27, 29, 31, 32, 36, 37, 42, 45, 47, 49, 52 and 53 to
remove particular certification requirements for contractors and
offerors. The proposed rule implements Section 4301b of the National
Defense Authorization Act for Fiscal Year 1996 (Pub. L. 104-106).
Section 4301b requires the Administrator, Office of Federal Procurement
Policy, to issue for public comment a proposal to remove from the FAR
those certification requirements for contractors and offerors that are
not specifically imposed by statute. The Administrator may omit such a
certification only if (1) The FAR Council provides the Administrator
with a written justification for the requirement and a determination
that there is no less burdensome means for administering and enforcing
the particular regulation that contains the certification requirement;
and (2) the Administrator approves in writing the retention of the
certification requirement.
The proposed rule implements Section 4301b by removing
certification requirements for contractors and offerors not
specifically imposed by statute. A separate FAR case 96-013 has been
initiated to identify and delete any representations that place an
unnecessary burden on contractors and offerors.
Review of certifications imposed by the Small Business
Administration revealed that representations, not certifications, were
imposed by the Small Business Act (15 U.S.C. 645(d)). Therefore, in the
FAR text at 19.001, 19.301, 19.703 and the provisions at 52.219-1,
52.219-15, 52.219-18, 52-219-19, and 52-219-21, representations have
been substituted for certifications. These representations will be
reviewed under FAR case 96-013.
Review of certifications contained in the FAR, revealed that
several certifications are required by outside source documents. For
example, the following certifications are required by Department of
Labor regulations: FAR 52.222-8, Payrolls and Basic Records; FAR
52.222-15, Eligibility under the Davis Bacon Act; FAR 52.222-41 (n) and
(p), Service Contract Act; FAR 52.222-48 Exemption from the Service
Contract Act for ADP services; and FAR 52.222-21, Certification of
Nonsegregated Facilities. Also, the following certifications are
required by Executive order: FAR 22.1020, Seniority Lists; and FAR
52.223-13, Toxic Chemical Release Reporting. The following
certifications are required by regulations issued by the Cost
Accounting Standards Board: FAR Provision 52.230-1, Appendix B; FAR
30.201-3, 30.201-4, 30.202-6, and 30.602-1. The disposition of these
certifications will not be covered by this proposal, but in accordance
with section 4301(b)(1)(B) of the Federal Acquisition Reform Act, and
under the authority of the Department of Labor with regard to the labor
certifications; and by the Office of Management and Budget, with regard
to those required by Executive order and the Cost Accounting Standards
Board.
The FAR certifications for contractors and offerors proposed for
elimination are summarized below:
FAR Certification Requirements Recommended for Deletion
----------------------------------------------------------------------------------------------------------------
FAR cite Clause/provision No. Title Remarks
----------------------------------------------------------------------------------------------------------------
3.502-2(i)(1).................... ................................. Subcontractor Revise language to
kickbacks. delete
certification.
4.102(d)......................... ................................. Joint ventures...... Revise language to
delete
certification.
1.106............................ 52.208-1......................... Required Sources for Delete clause.
6.302-3(b)(1)(viii) Jewel Bearings and
Related Items.
8.002............................ 52.208-2......................... Jewel Bearing and Delete provision.
8.2 Related Items
12.504(a)(16) Certificate.
9.505-4(c)....................... 52.209-7......................... Organizational Revise language to
Conflicts of delete
Interest certification.
Certificate--Market
ing Consultants.
9.506(a)......................... ................................. Procedures Revise language to
(Organizational delete
Conflict of certification.
Interest).
[[Page 48355]]
9.506(d)(4)...................... ................................. Procedures Revise language to
(Organizational delete certificate.
Conflict of
Interest).
1.106............................ 52.209-7......................... Organizational Delete provision.
9.507-1 Conflict of
Interest--Marketing
Consultant.
1.106............................ 52.209-8......................... Organizational Delete provision.
9.507-1 Conflict of
Interest--Advisory/
Assistance Services.
9.507-1(d)....................... ................................. Organizational Delete language--
Conflict of Language refers to
Interest. FAR clauses 52.209-
7 and -8.
12.503........................... 52.212-3......................... Offeror Revised language to
Representations and reflect revisions
Certifications--Com in this proposal.
mercial Items Minor
informalities or
irregularities in
bids.
14.405(f)........................ ................................. .................... Revise language to
specify
representations in
lieu of
certifications. FAR
52.222-22 and
52.222-25 are
representations as
required by
statute, not
certifications.
16.306(d)(2)..................... ................................. Level of effort..... Revise language to
delete
certification
requirement.
19.001........................... 52.219-1......................... Small Business Revise language to
19.301 Program delete
Representation. certification
requirement and
substitute
representations as
required by law.
19.703........................... 52.219-18........................ Notification of
Competition Limited
to Eligible 8a
Concerns.
52.219-19........................ SB Concern
Representation for
SB Competitiveness
Demonstration
Program.
52.219-21........................ SB Size
Representation for
Targeted Industry
Categories Under
the SB
Competitiveness
Demonstration
Program.
19.303(c)(2)..................... ................................. Determining Product Revise language to
19.303(c)(3) or Service delete
Classifications. certification
requirement.
9.501(h)(1)...................... ................................. General (self- Revise language to
certification). delete
certification
requirement.
152.219-15 (b) & (c)............. Notice of Delete clause.
Participation by
Organizations for
the Handicapped.
23.105........................... 52.223-1......................... Clean Air and Water Revise language to
23.106 Certification. delete
certification
requirement.
23.302(d)(1)..................... ................................. Policy--Hazardous Revise language to
material. delete
certification
requirement.
52.223-3......................... Hazardous Material Revise language to
Identification and delete
Material Safety certification
Data. requirement.
23.601(c)........................ 52.223-7......................... Notice of Revise language to
Radioactive delete
Materials. certification if
prior conditions
are not changed.
25.109(a)........................ 52.225-1......................... Buy American Revise language to
Certificate. delete
certification
requirement.
25.305........................... 52.225-6......................... Balance of Payments Revise language to
Program Certificate. delete
certification
requirement.
52.225-7......................... Balance of Payment
Program.
25.408(a)(1)..................... 52.225-8......................... Buy American Act-- Revise language to
Trade Agreements-- delete
Balance of Payments certification
Program Certificate. requirement.
25.408(a)(2)..................... 52.225-9......................... Buy American Act-- Revise language to
Trade Agreements-- delete certificate
Balance of Payments requirement.
Program.
25.408(a)(4)..................... 52.225-21........................ Buy American Act-- Revise language to
North American Free delete
Trade Agreement certification
(NAFTA) requirement.
Implementation Act--
Balance of Payments
Program.
25.408(b)........................ ................................. Solicitation Revise language to
provisions and delete
contract clauses. certification
requirement.
27.303(e)........................ ................................. Patent Rights-- Revise language to
Retention by the delete
Contractor (Short certification
form). requirement.
27.406........................... 52.227-12........................ Patent Rights-- Revise language to
27.409(q) Retention by the require declaration
Contractor. in lieu of
certification, as
required by
statute.
52.227-13........................ Patent Rights--
Acquisition by the
Government.
52.227-21........................ Technical Data
Certification,
Revision, and
Withholding of
Payment--Major
Systems.
29.305(b)(3)..................... ................................. State and local tax Revise language to
exemptions. delete
certification
requirement.
31.110........................... 52.242-4......................... Certification of Revise language to
42.703-2 Indirect Costs. delete nonstatutory
certification.
[[Page 48356]]
31.205-22(d) and (e)............. ................................. Legislative Lobbying Revise language to
costs. delete
certification
requirement.
32.805........................... ................................. Procedures Revise language to
(Assignments). delete
certification
requirement.
36.205(b)(3)..................... ................................. Statutory cost Revise language to
limitations. delete
certification
requirement.
37.402........................... 52.237-7......................... Indemnification and Revise language to
Medical Liability require evidence in
Insurance. lieu of
certification.
45.606-1......................... ................................. Submission.......... Revise language to
delete
certification
requirement.
52.245-8......................... Liability for the Revise language to
Facilities. delete
certification
requirement.
47.303-17(d)(3)(ii).............. ................................. Contractor-prepaid Revise language to
commercial bills of delete
lading, small certification
package shipments. requirement.
47.305-11(b)..................... 52.247-54........................ Diversion of Delete clause.
Shipment under
F.o.b. Destination
Contracts.
47.403-3......................... ................................. Disallowance of Revise language to
expenditures. delete
certification
requirement.
52.247-2......................... Permits, Revise language to
Authorities, or delete
Franchises. certification
requirement.
47.404........................... 52.247-63........................ Preference for U.S.- Revise language to
Flag Air Carriers. delete
certification
requirement.
49 U.S.C. 40118
directs agencies to
ensure
transportation is
by U.S. carriers.
49.108-3(b)...................... ................................. Settlement Revise language to
procedures. delete
certification
requirement.
52.209-3......................... First Article Revise language to
Approval (Alt I). delete
certification
requirement.
52.209-4......................... First Article Revise language to
Approval (Alt I). delete
certification
requirement.
52.215-35........................ Annual Revise language to
Representations and require
Certifications--Neg acknowledgment in
otiation. lieu of
certification.
52.216-2......................... Economic Price Revise language to
Adjustment--Standar delete
d Supplies. certification
requirement.
52.216-3......................... Economic Price Revise language to
Adjustment--Semista delete
ndard--Supplies. certification
requirement.
52.216-4......................... Economic Price Revise language to
Adjustment--Labor/ delete
Material. certification
requirement.
52.228-5......................... Insurance--Work on a Revise language to
Government delete
Installation. certification
requirement.
52.228-8......................... Liability and Revise language to
Insurance--Leased delete
Motor Vehicles. certification
requirement.
52.228-9......................... Cargo Insurance..... Revise language to
delete
certification
requirement.
Part 53.......................... ................................. SF 129.............. Revise form to
delete
certification
requirement.
Part 22 Form--SF Revise form to
1445. delete
certification
requirement.
Part 29 Form--SF Revise forms to
1094, SF 1094A. delete
certification
requirement.
Part 45 Forms--SFs Revise forms to
1423, 1426, 1428, delete
1430, 1432, 1434. certification
requirement.
----------------------------------------------------------------------------------------------------------------
The FAR certifications specifically imposed by statute are
summarized below:
FAR Certification Requirements Required by Statute
----------------------------------------------------------------------------------------------------------------
FAR cite Clause/provision No. Title Remarks
----------------------------------------------------------------------------------------------------------------
3.802(b)......................... 52.203-11........................ Certification and Required by 31 USC
Disclosure 1352.
Regarding Payments
to Influence
Certain Federal
Transactions.
3.803............................ 52.212-3(e)
3.804
3.808
9.204(a)(2)...................... ................................. Certification for Required by 10 USC
testing and 2319(d)(2) and 41
evaluation costs. USC 253c(d)(2).
52.214-27........................ Price Reduction for Required by 10 USC
Defective Cost or 2306a(a)(2) and 41
Pricing Data-- USC 254b.
Modifications--Seal
ed Bidding.
[[Page 48357]]
52.214-28........................ Subcontractor Cost Required by 10 USC
or Pricing Data-- 2306a(a)(2) and 41
Modifications--Seal USC 254b.
ed Bidding.
15.804-4......................... 52.215-22, -23, -24, -25......... TINA................ Required by 10 USC
2306a and 41 USC
254b.
22.407........................... 52.222-8......................... Certified Payroll Required by 40 USC
and Basic Records .. 276.
23.404(b)(2)(iii)................ 52.223-8......................... Estimate of Required by 42 USC
Percentage of 6962(c)(3).
Recovered Material
for Designated
Items to be Used in
the Performance of
the Contract.
23.405(a)........................ 52.223-4......................... Recovered Material Required by 42 USC
Certification. 6962(c)(3)(A)(i).
23.404(b)(4)..................... 52.223-9......................... Certification of Required by 42 USC
23.405(c) Percentage of 6962(c)(3).
Recovered Material
Content for EPA
Designated Items
Used in Performance
of the Contract.
29.304(d)........................ 52.229-2......................... North Carolina State Required by North
and Local Sales and Carolina State Law.
Use Tax.
52.232-33........................ Mandatory Required by 31 USC
Information for 3332
Electronic Funds
Transfer.
52.232-34 (Optional)
33.201........................... 52.233-1......................... Disputes............ Required by 41 USC
33.202 605(c)(1).
33.207
33.208
33.211(c)(2)
33.211(e)
33.214(a)(5)
42.703-2......................... 52.242-4......................... Certificate of Required by 10 USC
Indirect costs. 2324(h) and 41 USC
256(h).
50.303-2......................... ................................. Contractor Required by 10 USC
certification. 2410 and 41 USC
605(c)(1).
----------------------------------------------------------------------------------------------------------------
The FAR certifications approved in writing for retention by the
Administrator for Federal Procurement Policy are summarized below:
FAR Certification Requirements Which OFPP Has Given Approval To Retain
----------------------------------------------------------------------------------------------------------------
FAR cite Clause/provision No. Title Remarks
----------------------------------------------------------------------------------------------------------------
3.103............................ 52.203-2......................... Certificate of See following
Independent Price justification.
Determination.
9.408............................ 52.209-5......................... Certification See following
9.409 Regarding justification.
Debarment,
Suspension,
Proposed Debarment,
and Other
Responsibility
Matters.
52.213-1......................... Fast Payment See following
Procedure. justification.
32.202-4(b)(3)................... ................................. Security for See following
Government justification.
financing.
32.304-8......................... ................................. Other borrowing..... See following
justification.
32.503-4......................... ................................. Approval of progress See following
payment requests. justification.
32.503-5......................... ................................. Administration of See Justification
progress payments. under 32.503-9.
32.503-9(a)(9)................... ................................. Liquidation rates- See following
alternate method. Justification.
32.503-14 (a) and (c)............ ................................. Protection of See following
Government title Justification.
(progress payment).
52.232-4......................... Payments under See following
Transportation Justification.
Contracts and
Transportation
Related Service
Contracts.
32.905(c)(1)..................... 52.232-5......................... Payments Under Fixed- See following
Price Construction Justification.
Contracts.
32.1009 (a) and (c) and 52.232.32........................ Performance-Based See following
32.1010(c). Payments. Justification.
52.232-12 (a), (o)............... Advance Payments.... See following
Justification.
52.232-16(g)..................... Progress Payments... See following
Justification.
42.1204.......................... ................................. Agreement to See following
recognize a Justification.
successor in
interest (novation
agreement).
42.1205.......................... ................................. Agreement to See following
recognize Justification.
contractor's change
of name.
46.315........................... 52.246-15........................ Certificate of See following
46.504 Conformance. Justification.
49.108-4(a)(1)(iii).............. ................................. Authorization for See following
49.602-1(a) subcontract Justification.
settlements without
approval or
ratification.
49.112-1(h)...................... ................................. Certification and See following
approval of partial Justification.
payments.
49.302........................... ................................. Discontinuance of See following
vouchers. Justification.
[[Page 48358]]
49.304-2......................... ................................. Submission of See following
settlement proposal Justification.
(fee only).
49.603-1......................... ................................. Fixed-price See following
contracts-complete Justification.
termination.
49.603-2......................... ................................. Fixed-price See following
contracts-partial Justification.
termination.
49.603-3......................... ................................. Cost-reimbursement See following
contracts-complete Justification.
termination, if
settlement includes
cost.
49.603-8......................... ................................. Fixed-price See following
contracts- Justification.
settlements with
subcontractors only.
52.249-2 (c), (d)................ Termination for See following
Convenience of the Justification.
Government (Fixed-
Price).
52.249-3 (c), (d)................ Termination for See following
Convenience of the Justification.
Government
(Dismantling,
Demolition, or
Removal of
Improvements).
52.249-5(c)...................... Termination for See following
Convenience of the Justification.
Government
(Educational and
Other Nonprofit
Institutions).
52.249-6 (d), (e)................ Termination (Cost- See following
Reimbursement). Justification.
52.249-11 (c), (d)............... Termination of Work See following
(Consolidated Justification.
Facilities or
Facilities
Acquisition).
Part 53, Forms................... ................................. Part 49 Forms-SFs See following
1435, 1436, 1437, Justification.
1438, 1439, and
1440.
----------------------------------------------------------------------------------------------------------------
FAR Provision 52.203-2 and the prescription at 3.103 require that
offerors certify that proposed prices were arrived at independently
without, for the purpose of restricting competition, consultation with
other competitors. This certification is required to continue to
maintain the integrity of the Government procurement process by
insuring fair access to all interested contractors. The requirement
that Certificates of Independent Price Determination (CIPDs) be
submitted by offerors for Government contracts is being retained.
First, CIPDs require the disclosure, by offerors, of with whom prices
were discussed or to whom prices were disclosed, so that contracting
officers can determine whether offers have been prepared according to
the bid requirements set out in Government Requests for Proposals.
Unlike private contracting situations, important public policy concerns
may dictate in some instances that only independently prepared bids are
acceptable, while in other circumstances teaming agreements may be
acceptable or even actively solicited. Second, certain types of pre-bid
conduct or communications among competitors, such as attempting to
induce another firm to submit, or not to submit, an offer or disclosing
price information, may adversely affect the competitiveness of their
offers and yet not constitute an unlawful ``agreement'' under Federal
antitrust laws. With taxpayer dollars at stake, the public deserves the
price and quality benefits of vigorous competition. CIPDs are necessary
to preclude conduct and communications that diminish the
competitiveness of the Federal contracting process. The Government must
be able to hold those who seek to obtain public monies to the highest
standards of conduct at all times, and public funds must be protected
from unlawful collusion in the bidding process. These policy
considerations justify retaining the requirement for the submission of
CIPDs. The Department of Justice has concluded that this certification
will not place a significant burden on most offerors. The continued
preparation of CIPDs will not place a significant burden on most
offerors. For many businesses, and particularly for small businesses,
very few officials are responsible for determining the prices being
offered on Government contracts. The Department relies on the
certificate in trials of bid rigging conspiracies because the
certificate demonstrates that the defendant was put on notice of
antitrust prohibitions against collusive bidding and, in turn,
responded fraudulently when asked to certify the independent and non-
collusive nature of its bid.
FAR Provision 52.209-5 and the prescriptions at 9.408 and 9.409
require certified information from offerors regarding debarment,
suspension, and other responsibility matters. This information is
crucial to contracting officers in evaluating the responsibility of
prospective contractors. Not all the information that an offeror
submits under the provision at 52.209-5 is available from the General
Services Administration's (GSA) List of Parties Excluded from Federal
Procurement and Nonprocurement Programs. While the list is updated by
GSA to reflect suspensions and reinstatements by other Federal
agencies, the list can not be precisely correct at all times.
Consequently, the certification required by this provision is necessary
to afford protections to both the Government and contractors by
providing contracting officers with accurate information at all times
on which to evaluate contractor responsibility. The alternative is
extensive preaward surveys.
FAR clause 52.213-1 provides for contractor payment prior to the
Government's receipt, inspection and acceptance of supplies. This
certification is being retained because it expedites payment to
contractors without formal acceptance thereby improving cash flow. The
alternative to the fast pay invoice certification would be to delay
contractor payment until the Government actually received the supplies
shipped.
FAR 32.202-4(b)(3) requires contractors to certify that, when the
Government's security for contract financing is in the form of a lien
on contractor assets, the assets subject to the lien are free from any
prior encumbrances. This certification is being retained because it
represents good business practice to ascertain that no other
encumbrances have been attached to assets pledged by contractors to
secure Government financing. The alternative to the use of a
certification would be to conduct an exhaustive search of contractor
records to ensure no other liens on pledged assets exist.
[[Page 48359]]
FAR 32.304-8 requires contractors to certify to the amount of their
unliquidated unguaranteed borrowings. This certification is being
retained because the Government must be aware of and have strong
confidence in the amount of outstanding unguaranteed borrowing before
it can prudently consent to contractor requests for additional
borrowing during the guaranteed loan period. The alternative would be
to obtain this financial information from the contractor's ledgers
which is more burdensome. The contractor would still be required to
submit status reports in writing regardless of the requirement for a
certification. Thus, the underlying burden would not be removed even if
the certificate were.
There are several certifications required when contractors are
requesting progress payments. These certifications and associated
documentation are required when the Government is providing payments
without receiving goods or services. FAR clauses 52.232-5, 52.232-12,
52.232-32 and the prescriptions at 32.503-4, 32.503-5, 32.503-9,
32.503-14, 32.905, 32.1009, and 32.1010 require contractor
certifications when submitting requests for progress payments. Progress
payments are a form of contract financing which benefit contractors.
For this benefit to accrue, the contracting officer relies on
information submitted with the certification to establish the amount to
be paid and to ensure that the contractor has met certain safeguards
necessary to protect taxpayer funds. Because progress payments can
involve large sums of money, requiring these certifications is a
prudent business practice. Even if a certification were not required,
the contractor must still submit written requests with appropriate
documentation for payment. Elimination of the certification will not
eliminate that underlying burden. The only alternative would be an
audit of the contractor's records.
FAR 42.1204 and 42.1205 require contractors to certify that a
novation or contractor change of name was authorized by the
corporation's governing body and was within the scope of its corporate
powers. These certifications are being retained because they are
necessary to enable contracting officers to maintain and enforce
contracts with entities that had their contractual interest transferred
or assigned. The alternative to the use of certified statements would
be to obtain this information by reviewing and analyzing the
contractor's legal documentation in support of the name change or
novation.
FAR clause 52.246-15 and the prescriptions at 46.315 and 46.504
require contractors to certify that supplies have met the requirements
of the contract in lieu of Government source inspection, thereby
allowing the Government to eliminate on-site inspections. This
certification is being retained because it reduces administrative
burden for both the Government and contractors. The alternative would
be increased source inspections.
FAR clauses 52.249-2, 52.249-3, 52.249-5, 52.249-6, 52.249-11 and
the prescriptions at 49.108-4, 49.112-1, 49.302, 49.304-2, 49.602-1,
49.603-1, 49.603-2, 49.603-3, and 49.603-8 contain procedures for
settling contracts terminated for the convenience of the Government.
Because these certifications apply to final settlement proposals, the
indirect costs must be certified in accordance with 10 U.S.C. 2324(h).
Strict application of only the statutorily mandated certification would
leave areas in the overall settlement proposal that would not be
certified. Requiring contractors to certify all claimed costs as a
condition to settle a termination claim against the Government is a
prudent safeguard of taxpayer funds and is less burdensome than
requiring one settlement form for indirect costs that must be certified
and one settlement form for all other costs.
B. Regulatory Flexibility Act
This proposed rule may have a significant economic impact on a
substantial number of small entities within the meaning of the
Regulatory Flexibility Act, 5 U.S.C. 602, et seq., because it reduces
the number of certifications that offerors and contractors must provide
to the Government. An Initial Regulatory Flexibility Analysis (IRFA)
has been prepared and is summarized as follows: This rule proposes to
amend the FAR to remove particular certification requirements for
contractors and offerors that are not specifically imposed by statute,
and which have not been approved for retention by the Administrator for
Federal Procurement Policy. The objective of the rule is to implement
the Federal Acquisition Reform Act of 1996 (Public Law 104-106).
Section 4301b requires that all certifications not specifically
required by statute be eliminated from the FAR unless otherwise
approved for retention by the Administrator for Federal Procurement
Policy. The rule will apply to all businesses, large and small, who are
interested in receiving Government contracts. The rule imposes no
reporting, recordkeeping, or other compliance requirements, but,
rather, deletes existing certification requirements that are not
required by statute and which have not been approved for retention by
the Administrator for Federal Procurement Policy. The rule does not
duplicate, overlap, or conflict with any other Federal rules. A copy of
the IRFA may be obtained from the FAR Secretariat. A copy of the IRFA
has been submitted to the Chief Counsel for Advocacy of the Small
Business Administration. Comments are invited from small business and
other interested parties. Comments from small entities concerning the
affected FAR parts will be considered in accordance with Section 610 of
the Act. Such comments should be submitted separately and cite FAR case
96-312 in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act (Public Law 96-511) is deemed to apply
because the proposed rule eliminates certain information collection
requirements found at FAR 52.208-2, 52.209-7, 52.209-8, and 52.222-21.
Accordingly, a request for elimination of the information collection
requirement concerning Certification Requirements will be submitted to
the Office of Management and Budget under 44 U.S.C. 3501, et seq.
List of Subjects in 48 CFR Parts 1, 3, 4, 6, 8, 9, 12, 14, 16, 19, 22,
23, 25, 27, 29, 31, 32, 36, 37, 42, 45, 47, 49, 52 and 53
Government procurement.
Dated: September 5, 1996.
Edward C. Loeb,
Director, Office of Federal Acquisition Policy Division.
Therefore, it is proposed that 48 CFR Parts 1, 3, 4, 6, 8, 9, 12,
14, 16, 19, 22, 23, 25, 27, 29, 31, 32, 36, 37, 42, 45, 47, 49, 52 and
53 be amended as set forth below:
1. The authority citation for 48 CFR Parts 1, 3, 4, 6, 8, 9, 12,
14, 16, 19, 22, 23, 25, 27, 29, 31, 32, 36, 37, 42, 45, 47, 49, 52 and
53 continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. 2301 to 2331; and 42
U.S.C. 2473(c).
PART 1--FEDERAL ACQUISITION REGULATIONS SYSTEM
1.106 [Amended]
2. Section 1.106 is amended in the table following the text by
removing the following entries along with their control numbers: 8.203-
2, 9.5, 52.208-1, and 52.222-21.
[[Page 48360]]
PART 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
3. Section 3.502-2(i)(1) is revised to read as follows:
3.502-2 General.
* * * * *
(i) * * *
(1) Have in place and follow reasonable procedures designed to
prevent and detect violations of the Act in its own operations and
direct business relationships (e.g., company ethics rules prohibiting
kickbacks by employees, agents, or subcontractors; education programs
for new employees and subcontractors, explaining policies about
kickbacks, related company procedures and the consequences of
detection; procurement procedures to minimize the opportunity for
kickbacks; audit procedures designed to detect kickbacks; periodic
surveys of subcontractors to elicit information about kickbacks;
procedures to report kickbacks to law enforcement officials; annual
declarations by employees of gifts or gratuities received from
subcontractors; annual employee declarations that they have violated no
company ethics rules; personnel practices that document unethical or
illegal behavior and make such information available to prospective
employers); and
* * * * *
PART 4--ADMINISTRATIVE MATTERS
4. Section 4.102 is amended by revising the last sentence of
paragraph (d) to read as follows:
4.102 Contractor's signature.
* * * * *
(d) Joint ventures. * * * When a corporation is participating, the
contracting officer shall verify that the corporation is authorized to
participate in the joint venture.
* * * * *
PART 6--COMPETITION REQUIREMENTS
6.302-3 [Amended]
5. Section 6.302-3 is amended by removing paragraph (b)(1)(viii).
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
8.002 [Amended]
6. Section 8.002 is amended by removing paragraph (a), and
redesignating paragraphs (b) through (f) as (a) through (e).
Subpart 8.2--[Removed and reserved]
7. Subpart 8.2 is removed and reserved.
PART 9--CONTRACTOR QUALIFICATIONS
9.505-4 [Amended]
8. Section 9.505-4(c) is amended by removing the last sentence.
9. Section 9.506 is amended in paragraph (a) by revising the first
sentence; by adding ``and'' after the semicolon in (b)(1); by removing
(b)(2); by redesignating (b)(3) as (b)(2); and by revising (c)(1) and
(d). The revised text reads as follows:
9.506 Procedures.
(a) If information concerning prospective contractors is necessary
to identify and evaluate potential organizational conflicts of interest
or to develop recommended actions, contracting officers should first
seek the information from within the Government or from other readily
available sources. * * *
* * * * *
(c) * * *
(1) Review the contracting officer's analysis and recommended
course of action, including any proposed clause.
* * * * *
(d) The contracting officer shall--
(1) Include any approved clause(s) in the solicitation or the
contract;
(2) Consider additional information provided by prospective
contractors in response to the solicitation or during negotiations;
(3) Before awarding the contract, resolve the conflict or the
potential conflict in a manner consistent with the approval or other
direction by the head of the contracting activity.
* * * * *
9.507-1 [Removed and reserved]
10. Section 9.507-1 is removed and reserved.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
11. Section 12.503 is amended by revising paragraphs (b)(1) and
(b)(5) to read as follows:
12.503 Applicability of certain laws to Executive agency contracts for
the acquisition of commercial items.
* * * * *
(b) * * *
(1) 33 U.S.C. 1368, Requirement for a clause under the Federal
Water Pollution Control Act (see 23.105).
* * * * *
(5) 42 U.S.C. 7606, Requirements for a clause under the Clean Air
Act (see 23.105).
12.504 [Amended]
12. Section 12.504 is amended by removing paragraph (a)(16).
PART 14--SEALED BIDDING
14.405 [Amended]
13. Section 14.405(f) is amended by removing ``certifications'' and
inserting ``representations'' in its place.
PART 16--TYPES OF CONTRACTS
16.306 [Amended]
14. Section 16.306 is amended in paragraph (d)(2) by removing
``certification'' and inserting ``statement'' in its place.
PART 19--SMALL BUSINESS PROGRAMS
19.001 [Amended]
15. Section 19.001 is amended in the introductory text of paragraph
(b) of the definition ``Small disadvantaged business concern'' by
removing ``certify'' and inserting ``represent''.
16. Section 19.301 is amended by revising the first sentence of
paragraph (a) to read as follows:
19.301 Representation by the offeror.
(a) To be eligible for award as a small business, an offeror must
represent in good faith that it is a small business at the time of its
written representation. * * *
* * * * *
17. Section 19.303 is amended by revising the introductory text of
paragraph (c)(2); in paragraph (c)(2)(vi) by removing ``certifying''
and inserting ``acknowledging'' in its place; and by revising the
second sentence of paragraph (c)(3) to read as follows:
19.303 Determining product or service classifications.
* * * * *
(c) * * *
(2) The appeal shall be in writing and shall be addressed to the
Office of Hearings and Appeals, Small Business Administration,
Washington, D.C. 20416. No particular form is prescribed for the
appeal. However, time limits and procedures set forth in SBA's
regulations at 13 CFR 121.11 are strictly enforced. The appellant shall
submit an original and one legible copy of the appeal. In the case of
telegraphic appeals, the telegraphic notice shall be confirmed by the
next day mailing of a written appeal, in duplicate. By signing the
submission, a party or its attorney
[[Page 48361]]
attests that the statements and allegations in the submission are true
to the best of its knowledge, and that the submission is not being
filed for the purpose of delay or harassment. The appeal shall
include--
* * * * *
(3) * * * The contracting officer's response, if any, to the appeal
must include appropriate argument and evidence, and must be filed with
the Office of Hearings and Appeals no later than 5 business days after
receipt of the appeal. * * *
19.501 [Amended]
18. Section 19.501 is amended by removing paragraph (h).
19.508 [Removed]
18a. Section 19.508 is removed.
19. Section 19.703 is amended in paragraph (a)(2) by revising the
second and fourth sentences to read as follows:
19.703 Eligibility requirements for participating in the program.
(a) * * *
(2) * * * Individuals who represent that they are members of named
groups (Black Americans, Hispanic Americans, Native Americans, Asian-
Pacific Americans, Subcontinent-Asian Americans) may also represent
themselves as socially and economically disadvantaged. * * * Concerns
who are tribally-owned entities or Native Hawaiian Organizations may
represent themselves as socially and economically disadvantaged if they
qualify under the requirements of 13 CFR 124.112 or 13 CFR 124.113,
respectively. * * *
* * * * *
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS
20. Section 22.810(a) is revised to read as follows:
22.810 Solicitation provisions and contract clauses.
(a) The contracting officer shall insert the provision at 52.222-
22, Previous Contracts and Compliance Reports, in solicitations when a
contract is contemplated that will include the clause at 52.222-26,
Equal Opportunity.
* * * * *
PART 23--ENVIRONMENT, CONSERVATION, OCCUPATIONAL SAFETY, AND DRUG-
FREE WORKPLACE
23.102 [Amended]
21. Section 23.102 is amended in paragraph (d) by removing the
reference ``40 CFR Part 15'' and inserting ``40 CFR Part 32'' in its
place.
22. Section 23.105 is amended by revising paragraph (a) to read as
follows:
23.105 Solicitation provision and contract clause.
(a) The contracting officer shall insert the solicitation provision
at 52.223-1, Notification of Clean Air Act and/or Clean Water Act
Convictions, in solicitations containing the clause at 52.223-2, Clean
Air and Water (see paragraph (b) of this section).
* * * * *
23. Section 23.106 is amended by revising paragraph (a) to read as
follows:
23.106 Delaying award.
(a) If an otherwise successful offeror informs the contracting
officer that EPA is considering listing a facility proposed for
contract performance (see the provision at 52.223-1, Notification of
Clean Air Act and/or Clean Water Act Convictions), the contracting
officer shall promptly notify the EPA Administrator or a designee, in
writing, that the offeror is being considered for award.
* * * * *
24. Section 23.302 is amended by revising paragraph (d)(1) to read
as follows:
23.302 Policy.
* * * * *
(d) * * *
(1) By the apparently successful offeror prior to contract award if
hazardous materials are expected to be used during contract
performance.
* * * * *
25. Section 23.601 is amended by revising paragraph (c) to read as
follows:
23.601 Requirements.
* * * * *
(c) The clause permits the contracting officer to waive the
notification if the contractor states that the notification on prior
deliveries is still current. The contracting officer may waive the
notice only after consultation with cognizant technical
representatives.
* * * * *
PART 25--FOREIGN ACQUISITION
25.109, 25.305, and 25.408 [Amended]
26. Part 25 is amended in the following sections by removing
``Certificate'' and inserting ``Provision'' in its place: 25.109(a),
25.305(a); and 25.408(a)(1).
26b. In addition to the amendment set forth above, section 25.408
is further amended by revising paragraph (b) to read as follows:
25.408 Solicitation provision and contract clause.
* * * * *
(b) The contracting officer shall rely on the information submitted
by the offeror.
* * * * *
PART 27--PATENT, DATA, AND COPYRIGHTS
27. Section 27.303(e) is amended by revising the first sentence to
read as follows:
27.303 Contract clauses.
* * * * *
(e) For those agencies excepted under paragraph (a)(1)(i), only
small business firms or non-profit organizations qualify for the clause
at 52.227-11.
* * * * *
28. Section 27.406 is amended by revising paragraph (c); in
paragraph (d)(1) and (d)(2), and twice in (d)(3) by removing (C)
certification and inserting ``(D) declaration''; and in paragraph
(d)(2) by removing certify and inserting ``declare'' in its place. The
revised text reads as follows:
27.406 Acquisition of data.
* * * * *
(c) Acceptance of data. As required by 41 U.S.C. 418a(d)(7),
acceptability of technical data delivered under a contract shall be in
accordance with the appropriate contract clause as required by Subpart
46.3, and the clause at 52.227-21, Technical Data Declaration,
Revision, and Withholding of Payment--Major Systems, when it is
included in the contract. (See paragraph (d) of this section.)
* * * * *
27.409 [Amended]
29. Section 27.409 is amended in paragraph (q) by removing
``Certification'' and inserting ``Declaration'' in its place.
PART 29--TAXES
30. Section 29.305 is amended by revising paragraph (b)(3) to read
as follows:
29.305 State and local tax exemptions.
* * * * *
(b) * * *
(3) Under a contract or purchase order that contains no tax
provision, if:
(i) Requested by the contractor and approved by the contracting
officer or at the discretion of the contracting officer; and
(ii) Either the contract price does not include the tax or, if the
transaction or property is tax exempt, the contractor
[[Page 48362]]
consents to a reduction in the contract price.
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
31. Section 31.110 is amended by revising the first sentence of
paragraph (a) to read as follows:
31.110 Indirect cost rate certification and penalties on unallowable
costs.
(a) Certain contracts require certification of the indirect cost
rates proposed for final payment purposes.
* * * * *
31.205-22 Legislative lobbying costs.
32. Section 31.205-22 is amended by revising the section heading as
set forth above; by removing paragraph (d) and redesignating paragraphs
(e) and (f) as (d) and (e), respectively; and in the newly designated
(d) by adding ``(See 42.703-2)'' after ``unallowable''.
PART 32--CONTRACT FINANCING
32.805 [Amended]
33. Section 32.805 is amended in paragraph (a)(1)(iii) by removing
``certified'' and inserting ``true''.
PART 36--CONSTRUCTION AND ARCHITECT-ENGINEER CONTRACTS
34. Section 36.205 is amended by revising paragraph (b)(3) to read
as follows:
36.205 Statutory cost limitations.
* * * * *
(b)* * * (3) that the price on each schedule shall include an
approximate apportionment of all estimated direct costs, allocable
indirect costs, and profit.
* * * * *
PART 37--SERVICE CONTRACTING
35. Section 37.402 is revised to read as follows:
37.402 Contracting officer responsibilities.
Contracting officers shall obtain evidence of insurability
concerning medical liability insurance from the apparently successful
offeror prior to contract award and shall obtain evidence of insurance
demonstrating the required coverage prior to commencement of
performance.
PART 42--CONTRACT ADMINISTRATION
36. Section 42.703-2 is amended by revising paragraph (a); in
paragraph (c)(1) by removing ``billing rates or'' and inserting
``final'' in its place; and by revising paragraph (f) to read as
follows:
42.703-2 Certificate of indirect costs.
(a) General. In accordance with 10 U.S.C. 2324(h) and 41 U.S.C.
256(h), a proposal shall not be accepted and no agreement shall be made
to establish final indirect cost rates unless the costs have been
certified by the contractor.
* * * * *
(f) Contract clause. (1) Except as provided in paragraph (f)(2) of
this subsection, the clause at 52.242-4, Certification of Indirect
Costs, shall be incorporated into all solicitations and contracts which
provide for establishment of final indirect cost rates.
(2) The Department of Energy may provide an alternate clause in is
agency supplement for its management and operating contracts.
PART 45--GOVERNMENT PROPERTY
45.606-1 [Amended]
37. Section 45.606-1 is amended by removing the designation of
paragraph (a); and by removing paragraph (b).
PART 47--TRANSPORTATION
38. Section 47.303-17 is amended by revising paragraph (d)(3)(ii)
to read as follows:
47.303-17 Contractor-prepaid commercial bills of lading, small package
shipments.
* * * * *
(d) * * *
(3) * * *
(ii) The contractor agrees to furnish evidence of payment when
requested by the Government.
* * * * *
47.305-11 [Amended]
39. Section 47.305-11 is amended by removing the designation of
paragraph (a) and adding the text to the end of the undesignated
paragraph which precedes it; by removing paragraph (b); and
redesignating paragraphs (a)(1) through (3) as (a) through (c).
40. Section 47.403-3 is amended in paragraph (a) by removing
certificate or; and by revising paragraph (c) to read as follows:
47.403-3 Disallowance of expenditures.
* * * * *
(c) The justification requirement is satisfied by the contractor's
use of a statement similar to one contained in the clause at 52.247-63,
Preference for U.S.-Flag Air Carriers. (See 47.405.)
41. Section 47.404 is amended by revising paragraph (b)(2) to read
as follows:
47.404 Air freight forwarders.
* * * * *
(b) * * * (2) justification for the use of foreign-flag air
carriers similar to the one shown in the clause at 52.247-63,
Preference for U.S.-Flag Air Carriers.
PART 49--TERMINATION OF CONTRACTS
42. Section 49.108-3 is amended by revising paragraph (b) to read
as follows:
49.108-3 Settlement procedure.
* * * * *
(b) Except as provided in 49.108-4, the TCO shall require that:
(1) All subcontractor termination inventory be disposed of and
accounted for in accordance with Part 45; and
(2) The prime contractor submit for approval or ratification, all
termination settlements with subcontractors.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.208-1 and 52.208-2 [Removed and reserved]
43. Sections 52.208-1 and 52.208-2 are removed and reserved.
44. Section 52.209-3 is amended in Alternate I by revising the date
and paragraph (i) to read as follows:
52.209-3 First Article Approval--Contractor Testing.
* * * * *
Alternate I (Date). * * *
(i) The Contractor shall produce both the first article and the
production quantity at the same facility.
* * * * *
45. Section 52.209-4 is amended by revising the date and paragraph
(j) of Alternate I to read as follows:
52.209-4 First Article Approval--Government Testing.
* * * * *
Alternate I (DATE). * * *
(j) The Contractor shall produce both the first article and the
production quantity at the same facility.
* * * * *
52.209-7 and 52.209-8 [Removed]
47. Sections 52.209-7 and 52.209-8 are removed.
46. Section 52.212-3 is amended--
a. By revising the provision date, paragraph (c)(2), the
introductory text of (c)(6), and the last sentence of the introductory
text of (c)(6)(ii);
c. By revising the introductory text of (d), and by removing (d)(1)
and the undesignated paragraph following it, and redesignating (d)(2)
and (d)(3) as (d)(1) and (d)(2), respectively; and
c. In the introductory text of (f) by removing ``Certificate'' and
inserting ``Provision'' in its place, and by revising (f)(1) and
(f)(3). The revised text reads as follows:
[[Page 48363]]
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS (DATE)
* * * * *
(c) * * *
(2) Small disadvantaged business concern. The offeror represents
that it {time} is, {time} is not a small disadvantaged business
concern.
* * * * *
(6) Small Business Size for the Small Business Competitiveness
Demonstration Program and for the Targeted Industry Categories under
the Small Business Competitiveness Demonstration Program. [Complete
only if the offeror has represented itself to be a small business
concern under the size standards for this solicitation.]
* * * * *
(ii) * * * Offeror represents as follows:
* * * * *
(d) Representations required to implement provisions of Executive
Order 11246--
* * * * *
(f) * * *
(1) Each end product being offered, except those listed in
paragraph (f)(2) of this provision, is a domestic end product (as
defined in the clause entitled ``Buy American Act--Trade Agreements--
Balance of Payments Program''). Components of unknown origin have been
considered to have been mined, produced, or manufactured outside the
United States, a designated country, a North American Free Trade
Agreement (NAFTA) country, or a Caribbean Basin country, as defined in
section 25.401 of the Federal Acquisition Regulation.
* * * * *
(3) Offers will be evaluated by giving certain preferences to
domestic end products, designated country end products, NAFTA country
end products, and Caribbean Basin country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (f)(2) of this provision,
offerors must identify and list below those excluded end products that
are designated country end products or NAFTA country end products, or
Caribbean Basin country end products. Products that are not identified
and listed below will not be deemed designated country end products,
NAFTA country end products, or Caribbean Basin country end products.
Offerors must insert the applicable line item numbers in the following:
(i) The following supplies qualify as ``designated country end
products'' or ``NAFTA country end products'' as those terms are defined
in the clause entitled ``Buy American Act--Trade Agreements--Balance of
Payments Program'':
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Insert line item numbers)
(ii) The following supplies qualify as ``Caribbean Basin country
end products'' as that term is defined in the clause entitled ``Buy
American Act--Trade Agreements--Balance of Payments Program'':
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------
(Insert line item numbers)
* * * * *
48. Section 52.214-30 is revised to read as follows:
52.214-30 Annual Representations and Certifications--Sealed Bidding.
As prescribed in 14.201-6(u), insert the following provision:
ANNUAL REPRESENTATIONS AND CERTIFICATIONS--SEALED BIDDING (DATE)
The bidder has (check the appropriate block): {time} (a) Submitted
to the contracting office issuing this solicitation, annual
representations and certifications dated ______________ [Insert date of
signature of submission], which are incorporated herein by reference,
and are current, accurate, and complete as of the date of this bid,
except as follows [insert changes that affect only this solicitation;
if ``none,'' so state]: ____________
{time} (b) Enclosed its annual representations and certifications.
(End of provision)
49. Section 52.215-35 is revised to read as follows:
52.215-35 Annual Representations and Certifications--Negotiation.
As prescribed in 15.407(i), insert the following provision:
ANNUAL REPRESENTATIONS AND CERTIFICATIONS--NEGOTIATION (DATE)
The offeror has (check the appropriate block):
{time} (a) Submitted to the contracting office issuing this
solicitation, annual representations and certifications dated
____________________ [insert date of signature on submission] which are
incorporated herein by reference and are current, accurate, and
complete as of the date of this bid, except as follows [insert changes
that affect only this solicitation; if ``none,'' so state]:
____________
{time} (b) Enclosed its annual representations and certifications.
(End of provision)
52.216-2 [Amended]
50. Section 52.216-2 is amended by revising the clause date to read
``(DATE)''; and in paragraph (b) by removing the last sentence.
52.216-3 [Amended]
51. Section 52.216-3 is amended by revising the clause date to read
``(DATE)''; and in paragraph (b) by removing the last sentence.
52.216-4 [Amended]
52. Section 52.216-4 is amended by revising the clause date to read
``(DATE)''; and by removing paragraph (d) and redesignating paragraph
(e) as (d).
52.219-1 [Amended]
53. Section 52.219-1 is amended by revising the provision date to
read ``(DATE)''; and in paragraph (b)(1) by removing ``and certifies''.
52.219-15 [Removed and Reserved]
54. Section 52.219-15 is removed and reserved,
52.219-18 [Amended]
55. Section 52.219-18 is amended by revising the clause date to
read ``(DATE)''; and in paragraph (b) by removing ``certifies'' and
inserting ``represents''.
56. Section 52.219-19 is amended by revising the date and paragraph
(b) of the provision to read as follows:
52.219-19 Small Business Concern Representation for the Small Business
Competitiveness Demonstration Program.
* * * * *
SMALL BUSINESS CONCERN REPRESENTATION FOR THE SMALL BUSINESS
COMPETITIVENESS DEMONSTRATION PROGRAM (DATE)
* * * * *
(b) [Complete only if the Offeror has represented itself under the
provision at 52.219-1 as a small business concern under the size
standards of this solicitation.]
The offeror {time} is, {time} is not an emerging small business.
* * * * *
52.219-21 [Amended]
57. Section 52.219-21 is amended by revising the clause date to
read (XXX);
[[Page 48364]]
in the parenthetical following the provision heading by removing
``certified'' and inserting ``represented''; and in the first paragraph
of the provision by removing ``and certifies''.
52.222-21 [Reserved]
58. Section 52.222-21 is removed and reserved.
59. Section 52.223-1 is revised to read as follows:
52.223-1 Notification of Clean Air Act and/or Clean Water Act
Convictions.
As prescribed in 23.105(a), insert the following provision in
solicitations containing the clause at 52.223-2, Clean Air and Water:
NOTIFICATION OF CLEAN AIR ACT AND/OR CLEAN WATER ACT CONVICTIONS (DATE)
(a) If a facility owned or leased by the offeror is proposed to be
used in the performance of the contract, and the facility owner,
lessee, or supervisor was convicted of a violation at that facility of
Section 113 of the Clean Air Act (CAA), 42 U.S.C. 7413, or Section
309(c) of the Clean Water Act (CWA), 33 U.S.C. 1319(c), the offeror
shall notify the Contracting Officer whether such facility is presently
owned, leased or supervised by the convicted person. The notification
shall be submitted with the offer; if the conviction occurs on or after
the date the offer was submitted, the offeror shall promptly submit a
separate notification to the Contracting Officer.
(b) After receiving notification of a CAA or a CWA conviction, the
Contracting Officer may make award only if the Contracting Officer
obtains confirmation that the Environmental Protection Agency has
certified that the condition giving rise to the conviction has been
corrected, or that the agency head has excepted the contract or
subcontract from the CAA or CWA ineligibility.
(End of provision)
60. Section 52.223-3 is amended by revising the clause date and
paragraphs (c) and (e) to read as follows:
52.223-3 Hazardous Material Identification and Material Safety Data.
* * * * *
HAZARDOUS MATERIAL IDENTIFICATION AND MATERIAL SAFETY DATA (DATE)
* * * * *
(c) This list must be updated during performance of the contract
whenever the Contractor determines that any other material to be
delivered under this contract is hazardous.
* * * * *
(e) If, after award, there is a change in the composition of the
item(s) or a revision to Federal Standard No. 313, which renders
incomplete or inaccurate the data submitted under paragraph (d) of this
clause, the Contractor shall promptly notify the Contracting Officer
and resubmit the data.
* * * * *
61. Section 52.223-7 is amended by revising the clause date and
paragraph (b)(2) to read as follows:
52.223-7 Notice of Radioactive Materials.
NOTICE OF RADIOACTIVE MATERIALS (DATE)
* * * * *
(b) * * *
(2) State that the quantity of activity, characteristics, and
composition of the radioactive material have not changed; and
* * * * *
62. Section 52.225-1 is amended by revising its heading; and by
revising the provision heading and the first paragraph to read as
follows:
52.225-1 Buy American Provision.
* * * * *
BUY AMERICAN PROVISION (DATE)
The offeror shall list below each end product that is not a
domestic end product (as defined in the clause entitled ``Buy American
Act-Supplies''). Components of unknown origin are considered to have
been mined, produced, or manufactured outside the United States.
------------------------------------------------------------------------
Excluded end products Country of origin
------------------------------------------------------------------------
------------------------------------------------------------------------
* * * * *
(End of provision)
63. Section 52.225-6 is amended by revising the heading; and by
revising the heading and date and paragraph (a) of the provision to
read as follows:
52.225-6 Balance of Payments Program Provision.
BALANCE OF PAYMENTS PROGRAM PROVISION (DATE)
(a) The offeror shall list below each end product or service that
is not a domestic end product or service (as defined in the clause
entitled ``Balance of Payments Program''). Components of unknown origin
have been considered to have been mined, produced, or manufactured
outside the United States.
* * * * *
52.225-7 [Amended]
64. Section 52.225-7 is amended by revising the date of the
provision heading to read ``(DATE)''; and in paragraph (b) by removing
``Certificate'' and inserting ``Provision''.
65. 52.225-8 is amended by revising the section and provision
headings; and by revising paragraphs (a) and (c) of the provision to
read as follows:
52.225-8 Buy American Act--Trade Agreements--Balance of Payments
Program Provision.
* * * * *
BUY AMERICAN ACT--TRADE AGREEMENTS--BALANCE OF PAYMENTS PROGRAM
PROVISION (DATE)
(a) Each end product being offered, except those listed in
paragraph (b) of this provision, is a domestic end product (as defined
in the clause entitled ``Buy American Act--Trade Agreements--Balance of
Payments Program''). Components of unknown origin have been considered
to have been mined, produced, or manufactured outside the United
States, a designated country, a North American Free Trade Agreement
(NAFTA) country, or a Caribbean Basin country, as defined in section
25.401 of the Federal Acquisition Regulation.
* * * * *
(c) Offers will be evaluated by giving certain preferences to
domestic end products, designated country end products, NAFTA country
end products, and Caribbean Basin country end products over other end
products. In order to obtain these preferences in the evaluation of
each excluded end product listed in paragraph (b) of this provision,
offerors must identify and list below those excluded end products that
are designated country end products or NAFTA country end products, or
Caribbean Basin country end products. Products that are not identified
and listed below will not be deemed designated country end products,
NAFTA country end products, or Caribbean Basin country end products.
Offerors must insert the applicable line item numbers in the following:
(1) The following supplies qualify as ``designated country end
products or NAFTA country end products'' as those terms are defined in
the clause entitled ``Buy American Act--Trade Agreements--Balance of
Payments Program:''
----------------------------------------------------------------------
[Insert line item numbers]
(2) The following supplies qualify as ``Caribbean Basin country end
products'' as that term is defined in the
[[Page 48365]]
clause entitled ``Buy American Act--Trade Agreements--Balance of
Payments Program'':
----------------------------------------------------------------------
[Insert line item numbers]
* * * * *
66. Section 52.225-9 is amended by revising the clause date to read
``(DATE)''; and by revising the third and fourth sentences of paragraph
(b) to read as follows:
52.225-9 Buy American Act--Trade Agreements--Balance of Payments
Program.
* * * * *
BUY AMERICAN ACT--TRADE AGREEMENTS--BALANCE OF PAYMENTS PROGRAM (DATE)
* * * * *
(b) * * * The Contractor agrees to deliver under this contract only
domestic end products unless, in its offer, it specifies delivery of
foreign end products in the provision entitled ``Buy American Act--
Trade Agreements--Balance of Payments Program Provision''. An offer
stating that a designated, NAFTA, or Caribbean Basin country end
product will be supplied requires the Contractor to supply a
designated, NAFTA, or Caribbean Basin country end product or, at the
Contractor's option, a domestic end product. * * *
* * * * *
52.225-21 [Amended]
67. Section 52.225-21 is amended by revising the clause date to
read ``(XXX)''; in the third sentence of paragraph (c) by removing
``Certificate'' and inserting ``Provision'' in its place; in Alternate
I by revising the date to read ``(XXX)''; and in paragraph (c) by
removing ``Certificate'' and inserting ``Provision'' in its place.
52.227-12 [Amended]
68. Section 52.227-12 is amended by revising the clause date to
read ``(DATE)''; and in paragraph (f)(7)(ii) by removing ``certifying''
wherever it appears and inserting ``stating''.
52.227-13 [Amended]
69. Section 52.227-13 is amended by revising the clause date to
read ``(DATE)''; and in paragraph (e)(3)(ii) by removing ``certifying''
wherever it appears and inserting ``stating''.
70. Section 52.227-21 is amended by revising the section and clause
headings, the clause date, paragraph (b)(1), the first sentence of
(b)(2), and (d)(1)(ii) to read as follows:
52.227-21 Technical Data Declaration, Revision, and Withholding of
Payment--Major Systems.
* * * * *
TECHNICAL DATA DECLARATION, REVISION, AND WITHHOLDING OF PAYMENT--MAJOR
SYSTEMS (DATE)
* * * * *
(b) Technical data declaration. (1) All technical data that are
subject to this clause shall be accompanied by the following
declaration upon delivery:
TECHNICAL DATA DECLARATION (DATE)
The Contractor, ________________, hereby declares that, to the best
of its knowledge and belief, the technical data delivered herewith
under Government contract No. ________________ (and subcontract
________________, if appropriate) are complete, accurate, and comply
with the requirements of the contract concerning such technical data.
(End of declaration)
(2) The Government shall rely on the declarations set out in
paragraph (b)(1) of this clause in accepting delivery of the technical
data, and in consideration thereof may, at any time during the period
covered by this clause, request correction of any deficiencies which
are not in compliance with contract requirements. * * *
* * * * *
(d) * * *
(1) * * *
(ii) Provide the declaration required by paragraph (b)(1) of this
clause;
* * * * *
(End of clause)
71. Section 52.228-5 is amended by revising the clause date and the
first sentence of paragraph (b) to read as follows:
52.228-5 Insurance--Work on a Government Installation.
* * * * *
INSURANCE--WORK ON A GOVERNMENT INSTALLATION (DATE)
* * * * *
(b) Before commencing work under this contract, the Contractor
shall notify the Contracting Officer in writing that the required
insurance has been obtained. * * *
* * * * *
72. Section 52.228-8 is amended by revising the clause date and the
first sentence of paragraph (d) to read as follows:
52.228-8 Liability and Insurance--Leased Motor Vehicles.
* * * * *
LIABILITY AND INSURANCE--LEASED MOTOR VEHICLES (DATE)
* * * * *
(d) Before commencing work under this contract, the Contractor
shall notify the Contracting Officer in writing that the required
insurance has been obtained.
* * * * *
73. Section 52.228-9 is amended by revising the clause date, the
second sentence of paragraph (b), and paragraph (c)(2) to read as
follows:
52.228-9 Cargo Insurance.
* * * * *
CARGO INSURANCE (DATE)
(a) * * *
(b) * * * As evidence of insurance maintained, an authenticated
copy of the cargo liability insurance policy or policies shall be
furnished to ____________________ [insert name of contracting agency].
* * *
(c) * * *
(2) An authenticated copy of any renewal policy to
____________________ [insert name of contracting agency] not less than
15 days prior to the expiration of any current policy on file with
____________________ [insert name of contracting agency].
(End of clause)
74. Section 52.237-7 is amended by revising the clause date and the
first sentence of paragraph (d) to read as follows:
52.237-7 Indemnification and Medical Liability Insurance.
* * * * *
INDEMNIFICATION AND MEDICAL LIABILITY INSURANCE (DATE)
* * * * *
(d) Evidence of insurance documenting the required coverage for
each health care provider who will perform under this contract shall be
provided to the Contracting Officer prior to the commencement of
services under this contract. * * *
* * * * *
75. Section 52.242-4 is amended by revising the clause date and
paragraph (a)(1); and in paragraph 2 of the Certificate following
paragraph (c) by removing ``billing or''. The revised text reads as
follows:
52.242-4 Certification of Indirect Costs.
* * * * *
CERTIFICATION OF INDIRECT COSTS (DATE)
(a) * * *
[[Page 48366]]
(1) Certify any proposal to establish final indirect cost rates;
* * * * *
52.245-8 [Amended]
76. Section 52.245-8 is amended by revising the clause date to read
``(DATE)''; and in paragraph (f) by removing ``a certificate'' and
inserting ``documentation'' both times it appears; the first instance
should be capitalized.
77. Section 52.247-2 is amended by revising the introductory
paragraph, the clause date and paragraph (a) to read as follows:
52.247-2 Permits, Authorities, or Franchises.
As prescribed in 47.207-1(a), insert the following clause:
PERMITS, AUTHORITIES, OR FRANCHISES (DATE)
(a) The offeror does {time} , does not {time} , hold authorization
from the Federal Highway Administration (FHWA) or other cognizant
regulatory body. If authorization is held, it is as follows:
----------------------------------------------------------------------
(Name of regulatory body)
----------------------------------------------------------------------
(Authorization No.)
* * * * *
[End of clause]
52.247-54 [Removed and Reserved]
78. Section 52.247-54 is removed and reserved.
79. Section 52.247-63 is amended by revising the clause date and
the definition ``U.S.-flag air carrier''; in paragraph (b) by removing
``49 U.S.C. 1517'' and inserting ``49 U.S.C. 40118''; and by revising
paragraph (d) to read as follows:
52.247-63 Preference for U.S.-Flag Air Carriers.
* * * * *
PREFERENCE FOR U.S.-FLAG AIR CARRIERS (DATE)
* * * * *
(a) * * *
U.S.-flag air carrier, as used in this clause, means an air carrier
holding a certificate under Chapter 411 of Title 49 of U.S.C.
* * * * *
(d) In the event that the Contractor selects a carrier other than a
U.S.-flag air carrier for international air transportation, the
Contractor shall include a statement on vouchers involving such
transportation essentially as follows:
STATEMENT OF UNAVAILABILITY OF U.S.-FLAG AIR CARRIERS
International air transportation of persons (and their personal
effects) or property by U.S.-flag air carrier was not available or it
was necessary to use foreign-flag air carrier service for the following
reasons (see section 47.403 of the Federal Acquisition Regulation):
[State reasons]:
----------------------------------------------------------------------
(End of statement)
* * * * *
PART 53--FORMS
80. Section 53.214(e) is amended by revising the paragraph heading
to read as follows:
53.214 Sealed bidding.
* * * * *
(e) SF 129 (REV. XX/XX), Solicitation Mailing List Application. * *
*
* * * * *
81. Section 53.215-1(f) is amended by revising the paragraph
heading to read as follows:
53.215-1 Solicitation and receipt of proposals and quotations.
* * * * *
(f) SF 129, Solicitation Mailing List Application. * * *
* * * * *
82. Section 53.222(g) is amended by revising the paragraph heading
to read as follows:
53.222 Application of labor laws to Government acquisitions (SF's 99,
308, 1093, 1413, 1444, 1445, 1446, WH-347).
* * * * *
(g) SF 1445 (REV. XX/XX), Labor Standards Interview. * * *
* * * * *
83. Section 53.229 is amended by revising the paragraph heading to
read as follows:
53.229 Taxes (SF's 1094, 1094-A).
SF 1094 (REV. XX/XX, U.S. Tax Exemption Certificate, and SF 1094-A
(REV XX/XX), Tax Exemption Certificates Accountability Record. * * *
84. Section 53.245 is amended in paragraphs (c), (f), (g), (h),
(i), and (j) by revising the paragraph headings to read as follows:
53.245 Government property.
* * * * *
(c) SF 1423 (REV. XX/XX), Inventory Verification Survey.
* * * * *
(f) SF 1426 (REV. XX/XX), Inventory Schedule A (Metals in Mill
Product Form), and SF 1427 (REV. 7/89), Inventory Schedule A-
Continuation Sheet (Metals in Mill Product Form. * * *
(g) SF 1428 (REV. XX/XX), Inventory Schedule B, and SF 1429 (REV.
7/89), Inventory Schedule B-Continuation Sheet. * * *
(h) SF 1430 (REV. XX/XX), Inventory Schedule C (Work-in-Process)
and SF 1431 (REV. 7/89), Inventory Schedule C-Continuation Sheet (Work-
in-Process). * * *
(i) SF 1432 (REV. XX/XX), Inventory Schedule D (Special Tooling and
Special Test Equipment), and SF 1433 (REV. 7/89), Inventory Schedule D-
Continuation Sheet (Special Tooling and Special Test Equipment).* * *
(j) SF 1434 (REV. XX/XX), Termination Inventory Schedule E (Short
Form for Use with SF 38 Only). * * *
BILLING CODE 6820-EP-P
[[Page 48367]]
85. Section 53.301-129 is revised to read as follows:
53.301-129 Standard Form 129, Solicitation Mailing List Application.
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[[Page 48368]]
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[[Page 48369]]
85. Section 53.301-1094 is revised to read as follows:
53.301-1094 Standards Form 1094, U.S. Tax Exemption Certificates.
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[[Page 48370]]
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[[Page 48371]]
86. Section 53.301-1094 is revised to read as follows:
53.301-1094A Standard Form 1094A, Tax Exemption Certificates
Accountability Record.
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[[Page 48372]]
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[[Page 48373]]
87. Section 53.301-1423 is revised to read as follows:
53.301-1423 Standard Form 1423, Inventory Verification Survey.
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[[Page 48374]]
88. Section 53.301-1426 is revised to read as follows:
53.301-1426 SF 1426, Inventory Schedule A (Metals in Mill Product
Form).
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[[Page 48375]]
89. Section 53.301-1428 is revised to read as follows:
53.301-1428 SF 1428, Inventory Schedule B.
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[[Page 48376]]
90. Section 53.301-1430 is revised to read as follows:
53.301-1430 SF 1430, Inventory Schedule C (Work-in-Process).
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[[Page 48377]]
91. Section 53.301-1434 is revised to read as follows:
53.301-1432 SF 1432, Inventory Schedule D (Special Tooling and Special
Test Equipment).
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[[Page 48378]]
92. Section 53.301-1434 is revised to read as follows:
53.301-1434 SF 1434 Termination Inventory Schedule E (Short Form For
Use With SF 1438 Only).
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[[Page 48379]]
93. Section 53.301-1445 is revised to read as follows:
53.301-1445 SF 1445, Labor Standards Interview.
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[FR Doc. 96-23169 Filed 9-11-96; 8:45 am]
BILLING CODE 6820-EP-C
