[Federal Register Volume 60, Number 180 (Monday, September 18, 1995)]
[Rules and Regulations]
[Pages 48206-48208]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-22775]
[[Page 48205]]
_______________________________________________________________________
Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
_______________________________________________________________________
48 CFR Chapter 1 and Parts 1, et al.
Federal Acquisition Regulation (FAR); Final Rules
Federal Register / Vol. 60, No. 180 / Monday, September 18, 1995 /
Rules and Regulations
[[Page 48206]]
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Federal Acquisition Circular 90-32]
Federal Acquisition Regulation; Introduction of Miscellaneous
Amendments
AGENCIES: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final rules.
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SUMMARY: This document serves to introduce the final rules which follow
and which comprise Federal Acquisition Circular (FAC) 90-32. The
Federal Acquisition Regulatory Council has agreed to issue FAC 90-32 to
amend the Federal Acquisition Regulation (FAR).
DATES: For effective dates, see individual documents following this
one.
FOR FURTHER INFORMATION CONTACT: The team leader or FAR Staff Analyst
whose name appears in relation to each FAR case or subject area. For
general information, contact the FAR Secretariat, Room 4037, GS
Building, Washington, DC, 20405 (202) 501-4755. Please cite FAC 90-32
and FAR case number(s).
SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-32 amends
the Federal Acquisition Regulation (FAR) as specified below:
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Item Subject FAR case Team leader
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I....... Truth in 94-720 & 94-721..... Al Winston (703)
Negotiations Act 602-2119.
and Related
Changes.
II...... Protests, Disputes 94-730.............. Craig Hodge (703)
and Appeals. 274-8940.
III..... Acquisition of 94-790.............. Lawrence Trowel
Commercial Items. (703) 695-3858.
IV...... Whistleblower 94-803.............. Jules Rothlein
Protections for (703) 697-4349.
Contractor
Employees (Ethics).
V....... Small Business..... 94-780.............. Victoria Moss (202)
501-4764.
VI...... Publicizing 95-606.............. Ralph DeStefano
Contract Actions. (202) 501-1758.
VII..... Subcontractor 94-762.............. John Galbraith
Payments. (703) 697-6710.
VIII.... Reimbursement of 94-731.............. Craig Hodge (703)
Protest Costs. 274-8940.
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Case Summaries
For the actual revisions and/or amendments to these FAR cases,
refer to the specific item number and subject set forth in the
documents following these item summaries.
Item I--Truth in Negotiations Act and Related Changes (FAR Cases 94-720
and 94-721)
This final rule is issued pursuant to the Federal Acquisition
Streamlining Act of 1994 (FASA), Pub. L. 103-355 to implement those
portions of FASA that make specific changes to the Truth in
Negotiations Act (TINA) or that impact other areas of the FAR that
affect contract pricing.
This rule implements Sections 1201 through 1210 and Sections 1251
and 1252 of the FASA. A new exception is added to the requirement for
the submission of ``cost or pricing data'' for commercial items; the
approval level for waivers is changed, and prohibitions are placed on
acquiring ``cost or pricing data'' when an exception applies. The
coverage includes a clear explanation of adequate price competition as
required by the FASA.
Coverage has been included that addresses (1) ``information other
than cost or pricing data,'' (2) exceptions based on established
catalog or market price, (3) interorganizational transfers of
commercial items at price, and (4) price competition when only one
offer has been received.
The new policy also expands the exception based on adequate price
competition and provides for a special exception for commercial items.
A new section addressing ``information other than cost or pricing
data'' is created and a Standard Form 1448 is provided for use by
contractors.
The new policy at FAR 15.804-1(b)(1)(ii) recognizes circumstances
when it can be determined that adequate price competition exists even
though only one offeror has responded to the Government``s requirement.
In addition, this rule finalizes, with changes, the interim rule in
FAC 90-22 that made TINA requirements for civilian agencies
substantially the same as those for the Department of Defense
(increasing the threshold for submission of ``cost or pricing data'' to
$500,000 and adding penalties for defective pricing). Provisions were
also included that increase the threshold for cost or pricing data
submission every 5 years beginning October 1, 1995.
Although the instruction to amend contracts without consideration
to update the cost or pricing data threshold has been removed from the
FAR, the statutory authority and requirement to update the threshold
remain in effect. Accordingly, contracting officers shall, if requested
by a prime contractor, modify contracts to change the threshold in the
contract to the cost or pricing data threshold in paragraph 15.804-
2(a)(1), without requiring consideration. The contract modification
shall be accomplished by inserting into the contract the current
version of the clauses 52.215-23, Price Reduction for Defective Cost or
Pricing Data--Modifications, and 52.215-25, Subcontractor Cost or
Pricing Data-Modifications, or 52.215-24, Subcontractor Cost or Pricing
Data, as applicable. These new contract clauses shall apply only to
contract modifications and subcontracts for which agreement on price
occurs after the contracting officer has inserted the new clauses.
Item II--Protests, Disputes, and Appeals (FAR Case 94-730)
This final rule implements requirements of the Federal Acquisition
Streamlining Act of 1994 pertaining to protests, disputes, and appeals.
The primary changes included in this rule are new definitions of
``day,'' ``filed,'' and ``protest.'' Most of the adjustments merely
reflect current practice, except for the definition of ``day,'' which
changes from a presumed ``working day'' to a presumed ``calendar day.''
Agencies are now clearly allowed to take corrective action to include
payment of costs to the protester and are allowed to stay contract
performance in the face of a likely protest. Both agency and GAO
protests must now be filed within fourteen calendar days of discovery
of protest grounds, instead of the former ten working days. There is
[[Page 48207]]
also an explicit warning that, in the event of a conflict between the
FAR and GAO protest procedure regulations, the GAO regulations govern.
The period of time for submission of the agency administrative report
has been adjusted from the former 25 working days to 35 calendar days.
Agencies are required to prepare a protest file for prospective, non
intervening offerors to review, and to suspend performance of the
contract if the protest is filed within ten days of award or five days
of debriefing, where the debriefing is required. GAO decisions are
normally due out within 125 days, and attorney fees are generally
capped at $150 an hour, except for small businesses.
There is also an explicit statement that, in case of conflict with
the FAR, GSBCA rules govern questions of GSBCA protest procedure. The
GSBCA now has more GAO-like suspension standards and time periods.
Agencies are required to reimburse the judgment fund for costs awarded
the protester. Protest costs are limited at the GSBCA as they are with
GAO protests, such as with the attorney fee cap. Settlements are now
generally to be made public information.
In the disputes area, the claims certification threshold begins at
$100,000. Claims must be filed within six years of accrual, except for
Government claims involving fraud. Small claims now reach disputes of
$50,000, and accelerated claims have a threshold of $100,000.
Item III--Acquisition of Commercial Items (FAR Case 94-790)
This final rule implements Title VIII of the Federal Acquisition
Streamlining Act of 1994. The rule encourages the acquisition of
commercial end items and components by Federal Government agencies as
well as contractors and subcontractors at all levels. The most
significant revisions are in the following FAR parts:
Part 2 has been amended to incorporate the definitions of
``commercial item,'' ``component,'' ``commercial component'' and ``non
developmental item.''
Part 10 has been completely revised by establishing the requirement
for market research as the first step in the acquisition process.
Market research is an essential element in the later steps of
describing the agency's need, developing the overall acquisition
strategy and identifying terms and conditions unique to the item being
acquired.
Part 11 has been completely revised to address the process of
describing agency needs. It contains some of the language on
specifications and standards formerly found in FAR Part 10, but takes a
more streamlined approach. In addition, the revised Part 11 establishes
the Government's order of precedence for requirements documents and
addresses the concept of market acceptance. Part 11 also contains
coverage on Delivery or Performance Schedules, Liquidated Damages,
Priorities and Allocations, and Variations in Quantity taken from the
current Part 12 with only minor editorial revisions. The current Part
12 coverage on Suspension of Work, Stop Work Orders, and Government
Delay of Work has been moved to Subpart 42.13 with only minor editorial
revisions.
Part 12 has been completely revised to address the acquisition of
commercial items.
--Subpart 12.1 states that the policies in the revised Part 12 are
applicable to all acquisitions of commercial items above the micro-
purchase threshold. The requirements of other parts of the FAR apply to
commercial items to the extent they are not inconsistent with Part 12.
--Subpart 12.2 identifies special requirements for the acquisition of
commercial items.
--Subpart 12.3 establishes standard provisions and clauses for use in
the acquisition of commercial items. It is essential that contracting
officers be allowed to tailor solicitations and contracts to meet the
needs of the particular acquisition and the marketplace for that item.
Subpart 12.3 gives contracting officers broad authority to tailor
solicitations and contracts, a practice itself that is consistent with
commercial practices.
--A new form, the Standard Form (SF) 1449, Solicitation/Contract/Order
for Commercial Items, is established. The most significant element is
the addition of acceptance blocks at the bottom of the form that will
allow suppliers of commercial items to utilize the SF 1449 to document
receipt of the supplies or services by the Government, avoiding the
need for preparation of separate receipt/acceptance forms.
--Subpart 12.5 identifies the applicability of certain laws to the
acquisition of commercial items. It contains the list of laws
determined to be inapplicable to executive agency prime contracts for
acquisition of commercial items. This list has been expanded to also
include those laws that have been revised in some manner to modify
their applicability to commercial items. Agency unique laws determined
to be inapplicable to prime contracts are not addressed in this rule
and may be addressed separately by the respective agencies. This
subpart also contains the list of laws determined to be inapplicable to
subcontracts for commercial items. This list has been expanded to also
include those laws that have been revised in some manner to modify
their applicability to subcontracts for commercial items.
--Subpart 12.6 identifies two streamlined procedures for the evaluation
and solicitation of contracts for commercial items. These procedures
may be used at the discretion of the contracting officer.
Part 52 has been amended to include several new provisions and
clauses to be used in all solicitations and contracts for the
acquisition of commercial items:
--Section 52.212-1, Instructions to Offerors--Commercial Items,
contains solicitation instructions for the acquisition of commercial
items.
--Section 52.212-2, Evaluation--Commercial Items, contains evaluation
information that has been simplified and tailored to meet the
requirements of commercial items.
--Section 52.212-3, Offeror Representations and Certifications--
Commercial Items, includes, in one provision, the certifications and
representations required to comply with laws or Executive orders.
--Section 52.212-4, Contract Terms and Conditions--Commercial Items,
contains the terms and conditions believed to be consistent with
customary commercial practice.
--Section 52.212-5, Contract Terms and Conditions Required to Implement
Statutes or Executive Orders--Commercial Items, implements provisions
of law or Executive Orders applicable to Government acquisitions of
commercial items or commercial components. The clause at 52.212-5
represents the minimum number of clauses required to implement statutes
and Executive orders. Certain clauses may apply depending upon the
circumstances; the contracting officer will indicate which of these
clauses apply for the specific acquisition.
--Section 52.244-6, Subcontracts for Commercial Items and Commercial
Components, implements the preference for the acquisition of commercial
items or nondevelopmental items as components of items to be supplied
under Federal contracts. This clause will be used in all solicitations
and contracts for supplies and services other than commercial items.
[[Page 48208]]
Item IV--Whistleblower Protections for Contractor Employees (Ethics)
(FAR Case 94-803)
The final rule published as Item III of FAC 90-30 added FAR Subpart
3.9, Whistleblower Protections for Contractor Employees, to implement
Sections 6005 and 6006 of the Federal Acquisition Streamlining Act of
1994.
The rule contained an effective date of September 19, 1995, but did
not discuss the subject of applicability. The rule applies to all
contracts in existence as of September 19, 1995, for reprisals to
Government contractor employees occurring on or after that date.
Some existing Department of Defense contracts contain a clause
addressing whistleblower protections based on a prior statute, 10
U.S.C. 2409a. The remedies provided by FAR Subpart 3.9 do not apply to
contracts otherwise covered by the provisions of 10 U.S.C. 2409a.
Item V--Small Business (FAR Case 94-780)
This final rule implements Sections 7101(a) 7106, and 10004 of the
Federal Acquisition Streamlining Act (FASA) of 1994. Section 7101(a) of
FASA deletes Sections 15(e) and (f) of the Small Business Act (15
U.S.C. 631, et seq.). Those sections established the priority for award
of set-asides and provided the statutory basis for a procurement
preference for concerns located in Labor Surplus Areas (LSA). Based on
this deletion, this rule removes the LSA set-aside program and LSA
subcontracting program from the FAR.
Section 7106 of FASA revises Sections 8 and 15 of the Small
Business Act to accommodate a Governmentwide goal of 5 percent for
women-owned small businesses. This rule deletes existing, separate
coverage relating to women-owned businesses and revises existing
coverage to place women-owned small businesses on an equal footing with
small disadvantaged businesses. In connection with this revision, the
Standard Forms 294 and 295 are revised and streamlined.
Section 10004 of FASA, which requires the collection of specified
data through the Federal Procurement Data System, is being implemented
by FAR case 94-701. This rule augments that coverage by providing a
solicitation provision to collect the information on women-owned
businesses as required by that FAR case.
Item VI--Publicizing Contract Actions (FAR Case 95-606)
This final rule amends FAR sections 5.207(b)(4) and (b)(6). The
amendment deletes the requirement for the Federal Information
Processing Standard (FIPS) Number in Commerce Business Daily synopses
and, in lieu thereof, requests Government Printing Office (GPO) Billing
Account Code Information.
Item VII--Subcontractor Payments (FAR Case 94-762)
This final rule implements Sections 2091 and 8105 of the Federal
Acquisition Streamlining Act of 1994. The rule amends FAR Parts 28, 32,
and 52 to reflect: statutory requirements related to providing
information to subcontractors and prospective subcontractors concerning
bonds under the Miller Act; that while the Government does not have
privity with subcontractors, and does not serve as a collection agent
for them, the Government properly has an interest in the financial
capability, managerial competence, and business ethics of companies
doing business with the Government; that the contracting officer should
be informed about both sides of the argument in a dispute between the
prime contractor and its subcontractor in order to exercise good
business judgment; and finally, when an assertion raises a creditable
question concerning the accuracy of a contractor certification, the
contracting officer must decide whether the certification is inaccurate
in any material respect, and, if so, bring the matter to the attention
of the appropriate authorities, in accordance with agency regulations.
Item VIII--Reimbursement of Protest Costs (FAR Case 94-731)
This final rule implements Sections 1016, 1403, and 1435 of the
Federal Acquisition Streamlining Act of 1994. The primary effect of
this rule is to allow the Government to seek reimbursement for protest
costs it has paid a protester, such as the protester's attorney fees,
where that protest has been sustained based upon the awardee's
misrepresentation. In addition to any other remedies available, the
Government may collect this debt by offsetting the amount against any
payment due the awardee under any Government contract the awardee might
have.
Dated: September 7, 1995.
Edward C. Loeb,
Deputy Project Manager for the Implementation of the Federal
Acquisition Streamlining Act of 1994.
Federal Acquisition Circular
[Number 90-32]
Federal Acquisition Circular (FAC) 90-32 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
Unless otherwise specified below, all Federal Acquisition
Regulation (FAR) and other directive material contained in FAC 90-32 is
effective October 1, 1995. FAC Items I, and V through VIII, are
applicable for solicitations issued on or after October 1, 1995.
Item II--Where this rule repeats a GSBCA rule that went into effect
earlier, the date of the GSBCA rule and its applicability provision
prevail; otherwise, this rule is applicable to protests or claims filed
on or after October 1, 1995.
Item III--For solicitations issued on or after October 1, 1995: Use
of the new policies, provisions and clauses is optional for
solicitations issued before December 1, 1995, and mandatory for
solicitations issued on or after December 1, 1995.
Item IV--Effective September 19, 1995.
Dated: September 7, 1995.
Roland A. Hassebrock,
Col, USAF Director, Defense Procurement (Acting).
Dated: September 6, 1995.
Ida M. Ustad,
Associate Administrator for Acquisition Policy, General Services
Administration.
Dated: September 7, 1995.
Tom Luedtke,
Deputy Associate Administrator for Procurement, National Aeronautics
and Space Administration.
[FR Doc. 95-22775 Filed 9-15-95; 8:45 am]
BILLING CODE 6820-EP-P
