04-6042. Representations and Certifications-Other Than Commercial Items

AGENCY:

National Aeronautics and Space Administration.

ACTION:

Interim rule.

SUMMARY:

This interim rule revises the NASA Federal Acquisition Regulation (FAR) Supplement (NFS) by amending the Offeror Representations and Certifications—Other Than Commercial Items provision used in solicitations for non-commercial simplified acquisitions. This change is required to conform with changes made to the FAR by Federal Acquisition Circulars (FAC) 2001-14 and 2001-19.

DATES:

Effective Date: This interim rule is effective March 22, 2004.

Comment Date: Interested parties should submit comments to NASA at the address below on or before May 21, 2004, to be considered in formulation of the final rule.

ADDRESSES:

Interested parties may submit comments, identified by RIN number 2700-AC97, via the Federal eRulemaking Portal: http://www.regulations.gov. Follow the instructions for submitting comments. Comments may also be submitted to Celeste Dalton, NASA, Office of Procurement, Contract Management Division (Code HK), Washington, DC 20546. Comments can also be submitted by e-mail to: [e-mail].

FOR FURTHER INFORMATION CONTACT:

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

SUPPLEMENTARY INFORMATION:

A. Background

NASA FAR Supplement (NFS) provision 1852.213-70, Offeror Representations and Certifications—Other Than Commercial Items, provides a consolidated set of representations and certifications for use under non-commercial simplified acquisitions. This interim rule makes changes to NFS 1852.213-70 to conform to changes made to FAR provisions 52.225-4 and 52.225-6 by FACs 01-14 and 01-19, and changes made to 52.225-2 by FAC 01-14. These FAR provisions are included as paragraphs (e) and (f) of 1852.213-70. Specifically, FAC 01-14 clarified the use of the term “United States,” when used in a geographic sense and provided a definition of “outlying areas” of the United States, a term that encompasses the named outlying commonwealths, territories, and minor outlying islands. In addition to changes required in paragraphs (e) and (f) of 1852.213-70, a change is required in the introductory text of paragraph (c) as a result of the definition of “outlying areas”. FAC 01-19 made changes to implement the new Free Trade Agreements with Chile and Singapore, as approved by Congress (Pub. L. 108-77 and 108-78). These changes included removing references to “North American Free Trade Agreement” and incorporating the new concept of “Free Trade Agreements” in FAR provisions 52.225-4 and 52.225-6. In addition to the changes resulting from FACs 01-14 and 01-19, this interim rule revises 1852.213-70 to incorporate the definition of “service-disabled veteran” into the definition of “service-disabled veteran-owned small business concern” consistent with FAR 2.101(b). Finally, this change updates and corrects references and makes minor editorial changes.

This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

This interim rule is not expected to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. because acquisitions under $100,000 that are set aside for small businesses are exempt from trade agreements and these representations and certifications only apply to non-commercial acquisitions less than $100,000. NASA will consider comments from small entities concerning the affected NFS Part 1852 in accordance with 5 U.S.C. 610.

C. Paperwork Reduction Act

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

D. Determination to Issue an Interim Rule

In accordance with 41 U.S.C. 418(d), NASA has determined that urgent and compelling reasons exist to promulgate this interim rule without prior opportunity for public comment. This action is necessary consistent with the determination made for issuance of Item II of FAC 01-19 as an interim rule because the Free Trade Agreements with Chile and Singapore, as approved by Congress (Pub. L. 108-77 and 108-78) were effective January 1, 2004. NASA will consider public comments received in response to this interim rule in formation of the final rule.

List of Subjects in 48 CFR Part 1852

• Government procurement

Tom Luedtke,

Assistant Administrator for Procurement.

Accordingly, 48 CFR part 1852 is amended as follows:

PART 1852—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 1852 continues to read as follows:

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

2. Amend section 1852.213-70 by—

(a) Revising the date of the provision to read “(MAR 2004)”;

(b) Amending paragraph (a) by —

(i) Removing the definition for “Service-disabled veteran”;

(ii) Revising the definition for “Service-disabled veteran-owned small business concern”;

(c) Revising the introductory text of paragraph (c);

(d) In paragraph (c)((7)(ii), removing “(c)(11)(i)” and adding “(c)(7)(i)” in its place;

(e) Revising paragraphs (e) introductory text and (e)(1);

(f) Removing “North American Free Trade Agreement” from paragraph (f)(1) (twice), (f)(1)(ii), and (f)(1)(iii) and adding “Free Trade Agreements” in its place;

(g) Revising paragraph (f)(1)(i);

(h) In paragraph (f)(2), removing “North American” and adding “(JAN 2004)” immediately after “Alternate I” in the first sentence, and removing “North American Free Trade Agreement” from paragraph (f)(1)(ii) and adding “Free Trade Agreements” in its place;

(i) In paragraph (f)(3), removing “North American” and adding “(JAN 2004)” immediately after “Alternate II” in the first sentence, and removing “North American Free Trade Agreement” from paragraph (f)(1)(ii) and adding “Free Trade Agreements” in its place;

(j) Removing “NAFTA” from paragraphs (f)(1)(ii) (twice), (f)(4)(i), (f)(4)(ii), and (f)(4)(iii) (twice) and adding “FTA” in its place;

(k) Revising the date for Alternate I to read “(MAR 2004)”; and in the introductory text, removing “1813.302-570(a)(2)” and adding “1813.302-570(a)(2)(i)” in its place;

(l) Revising the date for Alternate II to read “(MAR 2004)”; and in the introductory text, removing “1813.302-570(a)(2)” and adding “1813.302-570(a)(2)(ii)” in its place; and

(m) Revising the date for Alternate III to read “(MAR 2004)”; and in the introductory text, removing “1813.302-570(a)(2)” and adding “1813.302-570(a)(2)(iii)” in its place.

The revised and added text reads as follows:

1852.213-70

Offeror Representations and Certifications—Other Than Commercial Items.

* * * * *

Offeror Representations and Certifications—Other Than Commercial Items (MAR 2004)

(a) * * *

“Service-disabled veteran-owned small business concern”—

(1) Means a small business concern—

(i) Not less than 51 percent of which is owned by one or more service-disabled veterans or, in the case of any publicly owned business, not less than 51 percent of the stock of which is owned by one or more service-disabled veterans; and

(ii) The management and daily business operations of which are controlled by one or more service-disabled veterans or, in the case of a veteran with permanent and severe disability, the spouse or permanent caregiver of such veteran.

(2) Service-disabled veteran means a veteran, as defined in 38 U.S.C. 101(2), with a disability that is service-connected, as defined in 38 U.S.C. 101(16).

* * * * *

(c) Offerors must complete the following representations when the resulting contract will be performed in the United States or its outlying areas. Check all that apply.

* * * * *

(e) Buy American Act Certificate. (Applies only if the clause at Federal Acquisition Regulation (FAR) 52.225-1, Buy American Act—Supplies, is included in this solicitation.)

(1) The offeror certifies that each end product, except those listed in paragraph (e)(2) of this provision, is a domestic end product and that the offeror has considered components of unknown origin to have been mined, produced, or manufactured outside the United States. The offeror shall list as foreign end products those end products manufactured in the United States that do not qualify as domestic end products. The terms “component,” “domestic end product,” “end product,” “foreign end product,” and “United States” are defined in the clause of this solicitation entitled “Buy American Act-Supplies.”

* * * * *

(f)(1) * * *

(i) The offeror certifies that each end product, except those listed in paragraph (f)(1)(ii) or (f)(1)(iii) of this provision, is a domestic end product and that the offeror has considered components of unknown origin to have been mined, produced, or manufactured outside the United States. The terms “component,” “domestic end product,” “end product,” “foreign end product,” and “United States” are defined in the clause of this solicitation entitled “Buy American Act—Free Trade Agreements— Israeli Trade Act”

* * * * *