07-1102. Federal Acquisition Regulation; FAR Case 2006-016, Numbered Notes for Synopses

AGENCIES:

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

ACTION:

Proposed rule with request for comments.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to update and clarify policy for synopses of proposed contract actions and to delete all references to Numbered Notes.

DATES:

Interested parties should submit written comments to the FAR Secretariat on or before May 11, 2007 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FAR case 2006-016 by any of the following methods:

• Federal eRulemaking Portal: http://www.regulations.gov. Search for any document by first selecting the proper document types and selecting “Federal Acquisition Regulation” as the agency of choice. At the “Keyword” prompt, type in the FAR case number (for example, FAR Case 2006-001) and click on the “Submit” button. Please include any personal and/or business information inside the document.You may also search for any document by clicking on the “Advanced search/document search” tab at the top of the screen, selecting from the agency field “Federal Acquisition Regulation”, and typing the FAR case number in the keyword field. Select the “Submit” button.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite FAR case 2006-016 in all correspondence related to this case. All comments received will be posted without change to http://www.regulations.gov, including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:

Mr. Ernest Woodson, Procurement Analyst, at [phone] for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone]. Please cite FAR case 2006-016.

SUPPLEMENTARY INFORMATION:

A. Background

The use of Numbered Notes originally provided a method to expedite publicizing synopses in the Commerce Business Daily (CBD). The data transmission for this defunct publication was cumbersome and time-consuming. The use of Numbered Notes simplified the inclusion of repetitive information. In addition, use of these Notes reduces the size of the publication (and, therefore, the cost to publish and distribute this hardcopy periodical.)

During the transition period from the CBD periodical for publishing synopses to the electronic postings of synopses on the Federal Business Opportunities (FedBizOpps) Web site, the Numbered Notes were moved from the CBD to FedBizOpps. At the same time, the prescriptions for the Numbered Notes were generally deleted from the FAR.

Electronic posting of synopses allows contracting officers to easily insert text, as needed. Electronic posting also places the full text of synopses in easy-to-read, stand-alone documents that may be individually printed hardcopy or saved as data files by interested parties. This differs sharply from the earlier CBD periodical which printed a hardcopy of all synopses for a particular day.

Since the prescriptions for the Numbered Notes were deleted from the FAR, the Numbered Notes have not been maintained and many of the Numbered Notes do not accurately reflect current FAR requirements or have been made obsolete by the functionality of FedBizOpps. Also, without prescriptions in the FAR, contracting officers are not required to use the Numbered Notes. The content of each Numbered Note and a discussion of the Note follows:

1. The proposed contract is 100 percent set-aside for small business concerns.

Contracting officers identify set-asides via a drop-down box in FedBizOpps. Therefore, the Note is redundant.

2. A portion of the acquisition is set-aside for small business concerns.

Contracting officers identify set-asides via a drop-down box in FedBizOpps. Therefore, the Note is redundant.

3. The proposed contract is a labor surplus area set-aside. (This note is deleted as of 7/21/99.)

The Note is obsolete.

4. The proposed contract is 100 percent set aside for small disadvantaged business concerns (SDB). Offers from concerns other than SDBs will not be considered. (This note is deleted as of 11/24/99.)

The Note is obsolete.

5. The proposed contract is 100 percent set-aside for Historically Black Colleges and Universities (HBCUs) and Minority Institutions (MIs). Offers from other than HBCUs and MIs will not be considered.

Contracting officers identify set-asides via a drop-down box in FedBizOpps. Therefore, the Note is redundant.

6. The proposed contract is a total small disadvantaged business set-aside or is being considered as a total small disadvantaged business set-aside. (This note is deleted as of 11/24/99.)

The Note is obsolete.

7. The proposed contract is 100 percent set-aside for Historically Black Colleges, Universities and Minority Institutions or is partially set-aside for Historically Black Colleges, Universities and Minority Institutions.

Contracting officers identify set-asides via a drop-down box in FedBizOpps. Therefore, the Note is redundant.

8. The solicitation document contains information that has been designated as “Militarily Critical Technical Data.” Only businesses that have been certified by the Department of Defense, United States/Canada Joint Certification Office, and have a valid requirement may have a copy of the solicitation document. All requests for copies of the solicitation document must include a certified copy of DD Form 2345, Militarily Critical Technical Data Agreement. To obtain certification, contact: Commander, Defense Logistics Information Service (DLIS), ATTN: U.S./Canada Joint Certification Office, 74 Washington Avenue North, Battle Creek, MI 49017-3084 or call the DLIS at (800)-352-3572. The DLIS United States/Canada Joint Certification Lookup service is available via the Internet at: http://www.dlis.dla.mil/​ccal/​.

The requirement is unique to DoD. The FAR does not include a reference to Militarily Critical Technical Data. The Office of Management and Budget (OMB) Control Number 0704-0207 for the information collection requirements associated with DD Form 2345 result from Department of Defense Directive Number 5230.25. In addition, the link reference in the Note is no longer valid, i.e., http://www.dlis.dla.mil/​ccal/​. Other information in the Note may also be inaccurate. Accordingly, this Note is not useful in the GPE.

9. Interested parties may obtain copies of Military and Federal Specifications and Standards, Qualified Product Lists, Military Handbooks, and other standardization documents from the DoD Single Stock Point (DODSSP), in Philadelphia, PA. Most documents are available in Adobe PDF format from the ASSIST database via the Internet at http://assist.daps.mil/​.

Users may search for documents using the ASSIST-Quick Search and, in most cases, download the documents directly via the Internet using standard browser software.

Documents not available for downloading from ASSIST can be ordered from the DODSSP using the ASSIST Shopping Wizard, after establishing a DODSSP Customer Account by following the registration procedures or by phoning the DODSSP Special Assistance Desk at [phone] (DSN: 442-2179).

Users not having access to the Internet may contact the DODSSP Special Assistance Desk at [phone] (DSN: 442-2179) or mail requests to the DODSSP, Bldg. 4/D, 700 Robbins Avenue, Philadelphia, PA 19111-5094. Patterns, Drawings, Deviations Lists, Purchase Descriptions, etc., are not stocked at the DODSSP.

The following FAR provisions notify prospective offerors how to obtain copies of the various specifications, standards, and data item descriptions: FAR 52.211-1, Availability of Specifications Listed in the GSA Index of Federal Specifications, Standards, and Commercial Item Descriptions; FAR 52.211-2, Availability of Specifications, Standards, and Data Item Descriptions Listed in the Acquisition Streamlining and Standardization Information System (ASSIST); FAR 52.211-3, Availability of Specifications Not Listed in the GSA Index of Federal Specifications, Standards, and Commercial Item Descriptions; and FAR 52.211-4, Availability for Examination of Specifications Not Listed in the GSA Index of Federal Specifications, Standards, and Commercial Item Descriptions. Additionally, FAR 52.209-1, Qualification Requirements, notifies prospective offerors how to obtain the qualification requirements for the pending contract. Therefore, the Note appears to be redundant. In addition, the link referenced in the Note is no longer valid, i.e., http://www.assist.daps.mil. Other information in the Note may also be inaccurate.

10. Reserved.

11. Reserved.

12. One or more of the items under this acquisition may be subject to an Agreement on Government Procurement approved and implemented in the United States by the Trade Agreements Act of 1979. All offers shall be in the English language and in U.S. dollars. All interested suppliers may submit an offer.

FAR Subpart 25.4, Trade Agreements, sufficiently addresses the procedures. Specifically, FAR 25.408 prescribes FAR provisions: 52.214-34, Submission of OfferSin the English Language; 52.214-35, Submission of Offers in U.S. Currency; and paragraph (c)(5) of 52.215-1, Instructions to Offerors—Competitive Acquisitions; contains most of the information in the Note. However, the World Trade Organization Government Procurement Agreement, and some of the Free Trade Agreements, require that a notice must appear in the synopsis that the procurement is covered by the Agreement. Therefore, the requirement should be included in the FAR.

13. The proposed contract is restricted to domestic sources under the authority of FAR 6.302-3. Accordingly, foreign sources, except Canadian sources, are not eligible for award.

FAR 6.302-3 provides for restrictions to either the “United States or its outlying areas” or the “United States, its outlying areas, or Canada.” In addition, acquisitions can be restricted based on other factors in 6.302-3. Therefore, it seems inappropriate to only address one of the restrictions.

14. Reserved.

15. Reserved.

16. Reserved.

17. Reserved.

18. Reserved.

19. Reserved.

20. Reserved.

21. Reserved.

22. The proposed contract action is for supplies or services for which the Government intends to solicit and negotiate with only one source under the authority of FAR 6.302. Interested persons may identify their interest and capability to respond to the requirement or submit proposals. This notice of intent is not a request for competitive proposals. However, all proposals received within forty-five days (thirty days if award is issued under an existing basic ordering agreement) after date of publication of this synopsis will be considered by the Government. A determination by the Government not to compete with this proposed contract based upon responses to this notice is solely within the discretion of the Government. Information received will normally be considered solely for the purpose of determining whether to conduct a competitive procurement.

Since there is no prescription for the Note in the FAR, contracting officers might be prescribing different time periods when responses will be considered. To ensure a uniform timeframe, the requirement should be maintained in the FAR.

23. Award will be made only if the offeror, the product/service or the manufacturer meets qualification requirements at time of award, in accordance with FAR clause 52.209-1 or 52.209-2. The solicitation identifies the office where additional information can be obtained concerning qualification requirements and is cited in each individual solicitation.

FAR 52.209-2 is reserved. FAR 52.209-1, Qualification Requirements, notifies prospective offerors how to obtain the requirements that must be satisfied to become qualified or to demonstrate their capability. Therefore, the Note is redundant.

24. This acquisition is for architect-engineer (A-E) services, and is procured in accordance with the Brooks A-E Act as implemented in FAR Subpart 36.6. A-E firms meeting the requirements described in this announcement are invited to submit: (1) a Standard Form (SF) 330, Architect-Engineer Qualifications, Parts I and II, and (2) any requested supplemental data to the procurement office shown. Firms registering for consideration for future Federal A-E projects are encouraged to electronically submit SF 330 Part II, General Qualifications, to http://www.bpn.gov/​orca/​login.aspx, and to update at least annually. Firms with a SF 330 Part II on file in this central Federal database do not need to submit a Part II for this acquisition unless directed by the announcement. Firms responding to this announcement before the closing date will be considered for selection, subject to any limitations indicated with respect to size and geographic location of firm, specialized technical expertise or other requirements listed. Following an evaluation of the qualifications and performance data submitted, three or more firms that are considered to be the most highly qualified to provide the type of services required will be chosen for negotiation. Selection of firms for negotiation shall be made in order of preference based on the demonstrated competence and qualifications necessary for satisfactory performance in accordance with the specific selection criteria listed in the announcement.

To be considered for architect-engineer contracts, a firm must file, with the appropriate office or board, the Standard Form (SF) 330, Architect-Engineer Qualifications, Part II, and when applicable, SF 330, Part I (see FAR 36.603(b)). The other information contained in the Note is also addressed in FAR 36.603(b). FAR 5.207(c)(12) requires contracting officers to include any significant evaluation factors in the synopsis. The requirement to have a filed SF 330 is a significant evaluation factor and would, therefore, be included in the synopsis. Accordingly, the Note is redundant.

25. Information submitted should be pertinent and specific in the technical area under consideration, on each of the following qualifications: (1) Experience: An outline of previous projects, specific work previously performed or being performed and any in-house research and development effort; (2) Personnel: Name, professional qualifications and specific experience of scientists, engineers and technical personnel who may be assigned as a principal investigator and/or project officer; (3) Facilities: Availability and description of special facilities required to perform in the technical areas under consideration. A statement regarding industry security clearance. Any other specific and pertinent information as pertains to this particular area of procurement that would enhance our consideration and evaluation of the information submitted.

Contracting officers are required to include the evaluation factors in the solicitation. Therefore, the Note is redundant.

26. Based upon market research, the Government is not using the policies contained in Part 12, Acquisition of Commercial Items, in its solicitation for the described supplies or services. However, interested persons may identify to the contracting officer their interest and capability to satisfy the Government's requirement with a commercial item within 15 days of this notice.

Market research is sufficient for identifying commercial solutions. Therefore, the Note is unnecessary.

27. The proposed contract is set-aside for HUBZone small business concerns. Offers from other than HUBZone small business concerns will not be considered.

Contracting officers identify set-asides via a drop-down box in FedBizOpps. Therefore, the Note is redundant.

28. The proposed contract is set-aside for Very Small Business Concerns (VSB). A VSB is a small business concern whose headquarters is located within the geographic area served by a district designated by SBA; and which, together with its affiliates, has no more than 15 employees and has average annual receipts that do not exceed $1 million. Offers from other than very small business concerns will not be considered.

The VSB program is no longer applicable. Therefore, the Note is obsolete.

29. The proposed contract is set-aside for Service-Disabled Veteran-Owned small business concerns. Offers from other than Service-Disabled Veteran-Owned small business concerns will not be considered.

Contracting officers identify set-asides via a drop-down box in FedBizOpps. Therefore, the Note is redundant.

This rule proposes to make the following changes to the FAR:

(a) Require that a “proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302” be subject to the 15-day advance notice publishing requirement at FAR 5.203 to establish a minimum time period for which the Government will consider proposals from other than an intended source.

(b) Delete the reference to the “GPO billing account code” at FAR 5.207 because the GPO has been replaced by FedBizOpps.

(c) Delete the reference to an “opening date” at FAR 5.207 because this term is now obsolete. “Opening date” was used in the CBD periodical when the date of publication for an announcement was uncertain. In FedBizOpps, the electronic posting date has replaced the opening date.

(d) Delete the references and coverage on Numbered Notes at FAR 5.205(a), 5.207(c)(13) and (14), 5.207(e), 10.002(d)(2), 12.603(c)(2)(xv), and 25.408(a)(2) because the referenced Notes are no longer needed.

(e) Add requirements to the FAR clause at 5.207(c)(13) to identify, in the synopsis, acquisitions subject to the trade agreements.

(f) Revise the “set-asides” coverage at FAR 5.207 to include all allowable set-asides and delete the reference to “Numbered Notes” because the type of set-aside is identified in FedBizOpps by selecting the appropriate set-aside from a drop-down menu, e.g., partial women-owned small business concern, total HUBZone small business concern.

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

The Councils do not expect this proposed rule 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 it makes no significant change to the policy for the synopses of proposed contract actions. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Parts 5, 10, 12, and 25 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 601, et seq. (FAR case 2006-016), in correspondence.

C. Paperwork Reduction Act

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

List of Subjects in 48 CFR Parts 5, 10, 12, and 25

• Government procurement

Dated: March 2, 2007.

Ralph De Stefano

Director, Contract Policy Division.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 5, 10, 12, and 25 as set forth below:

1. The authority citation for 48 CFR parts 5, 10, 12, and 25 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 U.S.C. 2473(c).

PART 5—PUBLICIZING CONTRACT ACTIONS

2. Amend section 5.203 by revising paragraph (a) introductory text to read as follows:

5.203

Publicizing and response time.

(a) An agency must transmit a notice of proposed contract action to the GPE (see 5.201). All publicizing and response times are calculated based on the date of publication. The publication date is the date the notice appears on the GPE. The notice must be published at least 15 days before issuance of a solicitation or a proposed contract action the Government intends to solicit and negotiate with only one source under the authority of 6.302, except that, for acquisitions of commercial items, the contracting officer may—

5.205

[Amended]

3. Amend section 5.205 in the fifth sentence following the paragraph heading of paragraph(a) by removing the words “cite the appropriate Numbered Note,”

4. Amend section 5.207 by—

a. Removing paragraph (a)(4) and redesignating paragraphs (a)(5) through (a)(19) as (a)(4) through (a)(18) respectively;

b. Revising newly redesignated paragraph (a)(9);

c. Revising paragraphs (c)(13) and (c)(14);

d. Revising paragraph (d);

e. Removing paragraph (e) and redesignating paragraphs (f) and (g) as (e) and (f),respectively; and

f. Revising the newly designated paragraph (f).

The revised text read as follows:

5.207

Preparation and Transmittal of Synopses.

(a) * * *

(9) Closing Response Date.

(c) * * *

(13) (i) If the solicitation will include the FAR clause at 52.225-3, Buy American Act Free Trade Agreements Israeli Trade Act, or an equivalent agency clause, insert the following notice in the synopsis: “One or more of the items under this acquisition is subject to Free Trade Agreements.”

(ii) If the solicitation will include the FAR clause at 52.225-5, Trade Agreements, or an equivalent agency clause, insert the following notice in the synopsis: “One or more of the items under this acquisition is subject to the World Trade Organization Government Procurement Agreement and Free Trade Agreements.”

(iii) If the solicitation will include the FAR clause at clause 52.225-11, Buy American Act-Construction Materials under Trade Agreements, or an equivalent agency clause, insert the following notice in the synopsis: “One or more of the items under this acquisition is subject to the World Trade Organization Government Procurement Agreement and Free Trade Agreements.”

(14) In the case of noncompetitive contract actions (including those that do not exceed the simplified acquisition threshold), identify the intended source and insert a statement of the reason justifying the lack of competition.

(d) Set-asides. When the proposed acquisition provides for a total or partial small business program set-aside, the contracting officer shall identify the type of set-aside in the solicitation.

(e) * * *

(f) Cancellation of synopsis. Contracting officers should not publish notices of solicitation cancellations (or indefinite suspensions) of proposed contract actions in the GPE. Cancellations of solicitations must be made in accordance with 14.209 and 14.404-1.

PART 10—MARKET RESEARCH

10.002

[Amended]

5. Amend section 10.002(d)(2) by removing the parenthetical from the end of the second sentence.

PART 12—ACQUISITION OF COMMERCIAL ITEMS

12.603

[Amended]

6. Amend section 12.603 by removing paragraph (c)(2)(xv) and redesignating paragraphs (c)(2)(xvi) and (xvii) as paragraphs (c)(2)(xv) and (xvi), respectively.

PART 25—FOREIGN ACQUISITIONS

7. Amend section 25.408 by revising paragraph (a)(2) to read as follows:

25.408

Procedures.

(a) * * *

(2) Comply with the requirements of 5.207, Preparation and Transmittal of Synopses;