[Federal Register Volume 60, Number 150 (Friday, August 4, 1995)]
[Rules and Regulations]
[Pages 39871-39874]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-19010]
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DEPARTMENT OF ENERGY
48 CFR Part 939
RIN 1991-AA81
Acquisition Regulation; Acquisition of Federal Information
Processing Resources by Contracting
AGENCY: Department of Energy.
ACTION: Final rule.
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SUMMARY: The Department of Energy (DOE) today issues a final rule to
amend the Department of Energy Acquisition Regulation (DEAR) to add
regulations regarding the acquisition of Federal Information Processing
Resources by contracting. This rule implements pertinent parts of the
Federal Information Resources Management Regulation (FIRMR) to
prescribe internal DOE policies relevant to the acquisition of Federal
Information Processing (FIP) resources. The rule is necessary to
establish policy regarding contracting authority for heads of
contracting activities and the responsibilities of the contracting
officer to comply with the delegated procurement authority provided by
the General Services Administration. Further, the rule sets forth the
Department's policy concerning contractor acquisition of FIP resources.
EFFECTIVE DATE: This final rule will be effective September 5, 1995.
FOR FURTHER INFORMATION CONTACT: P. Devers Weaver, Office of Policy
(HR-51), Office of Procurement and Assistance Management, U.S.
Department of Energy, 1000 Independence Avenue SW., Washington, D.C.
20585, telephone 202-586-8250.
SUPPLEMENTARY INFORMATION:
I. Background.
A. Discussion
B. Section-by-Section Analysis
II. Public Comments.
III. Procedural Requirements.
A. Regulatory Review
B. Review Under Executive Order 12778
C. Review Under the Regulatory Flexibility Act
D. Review Under the Paperwork Reduction Act
E. Review Under Executive Order 12612
F. National Environmental Policy Act
I. Background
A. Discussion
The FIRMR, codified at 41 CFR Part 201, is the primary
Governmentwide regulation for the acquisition, management, and use of
FIP resources. The FIRMR is prepared, issued and maintained by the
Administrator of the General Services Administration (GSA) under the
authority of the Federal Property and Administrative Services Act of
1949, as amended (40 U.S.C. 486). Subpart 201.39 of the FIRMR
prescribes the contracting policies and procedures to be followed by
Federal agencies in acquiring FIP resources. The policies and
procedures set out in FIRMR 201-39 are unique to the acquisition of FIP
resources, and are to
[[Page 39872]]
be used in conjunction with the general Federal contracting policies
and procedures of the Federal Acquisition Regulation (FAR).
Part 39 of the FAR requires agencies to follow the policies and
procedures contained in the FAR when acquiring FIP resources, except in
those areas where the FIRMR prescribes special policies, procedures,
provisions, or clauses (see FAR 39.001). In addition, FAR 39.002(b)
includes FIRMR 201-39 as an appendix to the FAR as an aid to
contracting officials when acquisitions are conducted under GSA's
exclusive procurement authority.
Section 201-3.301 of the FIRMR permits agencies to issue
regulations to implement or supplement the FIRMR in their agency
acquisition regulations, where such regulations pertain solely to the
acquisition of FIP resources by contracting. These amendments amend the
DEAR to add a new Part 939, Acquisition of Federal Information
Processing Resources by Contracting and implement pertinent parts of
the FIRMR to prescribe internal DOE policies and procedures relevant to
the acquisition of FIP resources. The amendments now promulgated in
this final rule were previously published in the Federal Register in a
notice of proposed rulemaking on December 2, 1993 (58 FR 63556).
Many of the proposed amendments contained in the notice of proposed
rulemaking concerned process or procedural matters relating to the
acquisition of FIP resources. Since the publication of that notice of
proposed rulemaking, efforts began throughout the Administration to
simplify regulations and streamline the acquisition process.
Accordingly, consistent with the intent of the National Performance
Review and the Department of Energy's own contract reform initiative,
the content of the proposed rule was reviewed subsequent to its
publication on December 2, 1993 to determine whether the rule contained
unnecessary or process-oriented requirements not suited for regulatory
coverage. As a result of that review, it was determined that certain
sections of the proposed rule addressed matters of a purely procedural
or process nature, and could appropriately be removed from the
regulatory coverage without any degradation to the effectiveness of the
Department's FIP resources management and acquisition. The Department
intends to include, where appropriate, this information in internal
guidance documents. Following is a section-by-section summary of the
final rule which also indicates which sections in the proposed rule
have been deleted and which were retained.
B. Section-by-Section Analysis
The regulations at 48 CFR Part 9 are amended to add a new Part 939,
Acquisition of Federal Information Processing Resources by Contracting.
This new part consists of 54 subparts.
Section 939.001 is added to prescribe the scope of Part 939.
However, language in the original notice of proposed rulemaking
permitting contracting activities to establish local procedures that
may be needed to further implement the requirements of Part 939 is
deleted.
Subpart 939.1 addresses general matters concerning the FIRMR
system. Section 939.101-3 of the notice of proposed rulemaking, which
provided that the procurement request initiator make the initial
assessment of FIRMR applicability to a particular acquisition, is
removed from this final rule.
Section 939.101-5 explains the numbering system of Part 939.
Section 939.102, which explained the existing relationship of the
FAR, the DEAR, and the FIRMR, is not included in this final rule.
Section 939.104-1 provides policy on the processing of deviations
to the FIRMR within DOE. Language in the notice of proposed rulemaking
that addressed the nature of the information to be included in a
deviation request is not included in this final rule.
Section 939.106-3 addresses the contracting authority of individual
Heads of the Contracting Activity and the responsibilities of the
contracting officer.
The procedures for processing agency procurement requests
originally set out in the notice of proposed rulemaking in Section
939.106-70 is not included in this final rule.
Subpart 939.2 provided definitions for words and terms used in Part
939. This section is being deleted from the final rule.
Section 939.501-70 of the notice of proposed rulemaking is not
being included in the final rule. That section permitted the
contracting officer to issue a synopsis for a solicitation in advance
of receipt of procurement authority from GSA.
Section 939.602-270 of Subpart 939.6 establishes review and
approval requirements for solicitations and contracts for, or using,
outdated FIP equipment.
Section 939.670 permitted the issuance of draft Statements of Work/
specifications or draft solicitations, prior to actual receipt of
procurement authority to permit DOE to obtain information from the
marketplace. This section is not included in the final rule.
In the notice of proposed rulemaking, Subpart 939.10 established
the responsibilities of the procurement request initiator and the
contracting officer regarding specifications for security and privacy
requirements (Section 939.1001-70) and Federal standards (Section
939.1002-70) applicable to an acquisition for FIP resources. Section
939.1003-70 addressed the requirements of Executive Order 12845,
``Purchase of Energy Efficient Computers by Federal Agencies.'' The
only coverage retained from the notice of proposed rulemaking is the
language of Section 939.1003-70 authorizing the Head of the Contracting
Activity to exempt requirements from the requirements of the Executive
Order.
Section 939.1701-470 of Subpart 939.17, as set out in the notice of
proposed rulemaking, provided guidance governing the period of
performance of contracts for FIP services or support services. This
section is removed in the final rule.
Section 939.4470 of Subpart 939.44 prescribes the policies
governing contractor acquisitions of FIP resources. A new paragraph (c)
has been added to clarify situations where a management and operating
contractor may acquire FIP resources for use by another contractor of
DOE.
II. Public Comments
DOE invited interested persons to participate in this rulemaking by
submitting data, views or arguments with respect to the DEAR amendments
set forth in the notice of proposed rulemaking. The public comment
period closed on January 31, 1994, a period of 60 days. During that
public comment period, no comments were received by DOE.
III. Procedural Requirements
A. Regulatory Review
Today's regulatory action has been determined not to be a
``significant regulatory action'' under Executive Order 12866,
``Regulatory Planning and Review,'' (58 FR 51735, October 4, 1993).
Accordingly, today's action was not subject to review, under that
Executive Order, by the Office of Information and Regulatory Affairs of
the Office of Management and Budget (OMB).
B. Review Under Executive Order 12778
Section 2 of Executive Order 12778 instructs each agency to adhere
to certain requirements in promulgating new regulations and reviewing
existing
[[Page 39873]]
regulations. These requirements, set forth in sections 2(a) and 2(b),
include eliminating drafting errors and needless ambiguity, drafting
the regulations to minimize litigation, providing clear and certain
legal standards for affected conduct, and promoting simplification and
burden reduction. Agencies are also instructed to make every reasonable
effort to ensure that the regulation: specifies clearly any preemptive
effect, effect on existing Federal law or regulation, and retroactive
effect; describes any administrative proceedings to be available prior
to judicial review and any provisions for the exhaustion of such
administrative proceedings; and defines key terms. DOE certifies that
today's final rule meets the requirements of sections 2(a) and 2(b) of
Executive Order 12778.
C. Review Under the Regulatory Flexibility Act
This final rule was reviewed under the Regulatory Flexibility Act
of 1980, Pub. L. 96-354, which requires preparation of a regulatory
flexibility analysis for any rule which is likely to have a significant
economic impact on a substantial number of small entities. This rule
will have no impact on interest rates, tax policies or liabilities, the
cost of goods or services, or other direct economic factors. It will
also not have any indirect economic consequences, such as changed
construction rates. DOE certifies that this rule will not have a
significant economic impact on a substantial number of small entities
and, therefore, no regulatory flexibility analysis has been prepared.
D. Review Under the Paperwork Reduction Act
No new information collection or recordkeeping requirements are
imposed by this rule. Accordingly, no OMB clearance is required under
the Paperwork Reduction Act of 1980 (44 U.S.C. 3501, et seq.).
E. Review Under Executive Order 12612
Executive Order 12612, entitled ``Federalism,'' 52 FR 41685
(October 30, 1987), requires that regulations, rules, legislation, and
any other policy actions be reviewed for any substantial direct effects
on states, on the relationship between the Federal government and the
states, or in the distribution of power and responsibilities among
various levels of government. If there are sufficient substantial
direct effects, then the Executive Order requires preparation of a
federalism assessment to be used in all decisions involved in
promulgating and implementing a policy action. This rule will not
affect states.
F. National Environmental Policy Act
Pursuant to the Council on Environmental Quality Regulations (40
CFR 1500-1508), the Department has established guidelines for its
compliance with the provisions of the National Environmental Policy Act
(NEPA) of 1969 (42 U.S.C. 4321, et seq). Pursuant to Subpart D of 10
CFR Part 1021, National Environmental Policy Act Implementing
Procedures, the Department of Energy has determined that this rule is
categorically excluded from the need to prepare an environmental impact
statement or environmental assessment. This rule delegates contracting
authority under categorical exclusion A6 of Subpart D.
List of Subjects in 48 CFR Part 939
Government Procurement.
Issued in Washington, D.C. on July 26, 1995.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.
For the reasons set forth in the preamble, 48 CFR Chapter 9 is
amended as set forth below:
1. A new Part 939, Acquisition of Federal Information Processing
Resources by Contracting, consisting of Subparts 939.0 through 939.53,
is added to read as follows:
PART 939--ACQUISITION OF FEDERAL INFORMATION PROCESSING RESOURCES
BY CONTRACTING
Subpart 939.0--Scope of Part
Sec.
939.001 Scope.
Subpart 939.1 Federal Information Resources Management Regulation
(FIRMR) System
939.101-5 Arrangement of part.
939.104-1 Deviations from the FIRMR.
939.106-3 Contracting authority and responsibilities.
Subparts 939.2 through 939.54 [Reserved]
Subpart 939.6 Competition Requirements
939.602-270 Outdated FIP equipment.
Subparts 939.7 through 939.9 [Reserved]
Subpart 939.10 Specifications, Standards, and Other Purchase
Descriptions
939.1003-70 Purchase of Energy Efficient Computers (Energy Star)
Subparts 939.11 through 939.43 [Reserved]
Subpart 939.44 Subcontracting policies and procedures
939.4470 Contractor acquisitions of FIP resources.
Subparts 939.45 through 939.53 [Reserved]
Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).
Subpart 939.0 Scope of Part
939.001 Scope.
This part sets forth the policies that apply to the contracting for
Federal Information Processing (FIP) resources by the Department of
Energy (DOE).
Subpart 939.1 Federal Information Resources Management Regulation
(FIRMR) System
939.101-5 Arrangement of part.
For consistency with the FIRMR and the FAR, part 939 is arranged in
54 subparts. Within each subpart, sections and subsections are numbered
to correspond to like divisions of the FIRMR where the intent of the
part 939 sections and subsections is to implement the FIRMR. Where the
specific section or subsection is intended to supplement the FIRMR, or
where specific FIRMR coverage does not exist, the section or subsection
number is assigned a number of 70 or above.
939.104-1 Deviations from the FIRMR.
(a) Only the General Services Administration (GSA) can authorize
class deviations and individual deviations from the FIRMR. Within DOE,
contracting officers shall submit requests for deviations from the
FIRMR to the Headquarters Office of Clearance and Support for approval
and subsequent processing with GSA.
(b) Approval Requirements. The Head of the Contracting Activity
(HCA), after coordination with local counsel, shall concur in requests
for deviations prior to submission to the Office of Clearance and
Support. The Procurement Executive shall approve all requests for
deviations prior to submission of the request to GSA.
939.106-3 Contracting authority and responsibilities.
(a) In instances where a specific acquisition delegation of
procurement authority is not required under (FIRMR) 41 CFR 201-20.305-
3, Specific Acquisition Delegations, each HCA may acquire FIP resources
up to 50 percent of the regulatory delegation thresholds prescribed in
(FIRMR) 41 CFR 201-20.305-1, Regulatory Delegations,
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unless different thresholds have been established either in the HCA's
delegation of contracting authority, or in a specific agency delegation
from GSA under (FIRMR) 41 CFR201-20.305-2, Specific Agency Delegations
of Procurement Authority (DPA); or, in internal DOE guidance documents.
(b) The contracting officer is responsible for ensuring compliance
with all terms, conditions, and limitations imposed on DOE under a
specific acquisition Delegation of Procurement Authority (DPA).
(c) The contracting officer shall not award a contract, or a
modification to an existing contract, when the value of the FIP
resources portion of the award, including the value of any options,
exceeds DOE's delegated FIP procurement authority redelegated to the
HCA by the DSO. Where the anticipated award value of the FIP resources
portion of the contract, or modification to the contract, exceeds DOE's
delegated procurement authority, DOE shall obtain a revised delegation
from GSA prior to award. Where the anticipated award value of the FIP
resources portion of the contract, or modification to the contract,
exceeds the HCA's redelegated procurement authority for that
acquisition, the contracting officer shall have the redelegation
revised, in accordance with internal DOE guidance documents, prior to
award.
Subpart 939.2 through 939.5 [Reserved]
Subpart 939.6 Competition Requirements
939.602-270 Outdated FIP equipment.
Solicitations and contracts for, or using, outdated FIP equipment
shall be submitted to the Office of Clearance and Support for review
and approval. The Office of Information Management shall review these
documents and make the decision whether to allow the acquisition or use
of outdated FIP equipment.
Subparts 939.7 through 939.9 [Reserved]
Subpart 939.10 Specifications, Standards, and Other Purchase
Descriptions
939.1003-70 Purchase of Energy Efficient Computers (Energy Star).
Executive Order 12845, ``Purchase of Energy Efficient Computers by
Federal Agencies,'' requires agencies to acquire microcomputers,
including personal computers, monitors, and printers, that meet the
``Energy Star'' requirements established by the Environmental
Protection Agency for energy efficiency. Solicitations for
microcomputers and peripheral equipment, issued after October 21, 1993,
are required to include a requirement that equipment meet the ``Energy
Star'' standard, unless an exemption has been provided by the Head of
the Contracting Activity as authorized under section 1(a) of Executive
Order 12845.
Subparts 939.11 through 939.43 [Reserved]
Subpart 939.44 Subcontracting Policies and Procedures
939.4470 Contractor acquisitions of FIP resources.
(a) Management and operating (M&O) contracts. Except as provided in
paragraph (c) of this section, M&O contractors and their subcontractors
shall not be used to acquire FIP resources unrelated to the mission of
the M&O contract either for sole use by DOE employees or employees of
other DOE contractors, or for use by other Federal agencies or their
contractors.
(b) Other than M&O contracts. Where it has been determined that a
contractor (other than an M&O contractor or its subcontractor) will
acquire FIP resources either for sole use by DOE employees or for the
furnishing of the FIP resources as government-furnished property under
another contract, DOE will obtain any needed procurement authority from
GSA prior to having the contractor acquire the FIP resources.
(c) Consolidated contractor acquisitions. When common FIP resource
requirements in support of DOE programs have been identified and it is
anticipated that the consolidation of such requirements will promote
cost or other efficiencies, the Designated Senior Official for
Information Management may authorize an M&O contractor to acquire FIP
resources for use by the following:
(1) One or more other contractor(s) performing on-site at the same
DOE-owned or -leased facility as the M&O contractor, or
(2) Other M&O contractors.
Subparts 939.45 through 939.53 [Reserved]
[FR Doc. 95-19010 Filed 8-3-95; 8:45 am]
BILLING CODE 6450-01-P
