[Federal Register Volume 59, Number 59 (Monday, March 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6902]


[Federal Register: March 28, 1994]


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DEPARTMENT OF DEFENSE
48 CFR Parts 9 and 52

[FAR Case 91-105]


Federal Acquisition Regulation; First Article Testing and 
Approval

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council are proposing a change to the Federal 
Acquisition Regulation (FAR) which adds language to the existing first 
article clauses and adds a new solicitation provision, Waiver of First 
Article Testing and Approval. This regulatory action was not subject to 
Office of Management and Budget review pursuant to Executive Order No. 
12866 dated September 30, 1993.

DATES: Comments should be submitted on or before May 27, 1994, to be 
considered in the formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th & F 
Streets, NW., room 4037, Washington, DC 20405.
    Please cite FAR case 91-105 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT:
Mr. Ralph De Stefano at (202) 501-1758 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 
91-105.

SUPPLEMENTARY INFORMATION: 

A. Background

    The existing first article clauses at FAR 52.209-3, First Article 
Approval-Contractor Testing, and 52.209-4, First Article Approval-
Government Testing, do not cover all the requirements of FAR 9.306, 
Solicitation requirements. The proposed language will cover the main 
requirements in this section and will reduce the number of non-standard 
provisions and clauses on this subject.

B. Regulatory Flexibility Act

    The proposed 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 the 
changes will standardize the FAR coverage addressed under FAR 9.306, 
Solicitation requirements. An Initial Regulatory Flexibility Analysis 
has, therefore, not been performed. Comments are invited from small 
businesses and other interested parties. Comments from small entities 
concerning the affected FAR subpart will also be considered in 
accordance with 5 U.S.C. 610. Such comments must be submitted 
separately and should cite 5 U.S.C. 601, et seq. (FAR case 91-105), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) is deemed to apply 
because the proposed rule contains information collection requirements. 
Accordingly, a request for approval of a new information collection 
requirement concerning the Waiver of First Article Testing and Approval 
Requirements solicitation provision is being submitted to the Office of 
Management and Budget under 44 U.S.C. 3501, et seq. Public comments 
concerning this request will be invited through a Federal Register 
notice appearing in this same issue.

List of Subjects in 48 CFR Parts 9 and 52

    Government procurement.

    Dated: March 18, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.

    Therefore, it is proposed that 48 CFR parts 9 and 52 be amended as 
set forth below:
    1. The authority citation for 48 CFR parts 9 and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS


9.305  [Amended]

    2. Section 9.305 is amended by removing at the end of the third 
sentence ``(see Alternate II of the clause at 52.209-3, First Article 
Approval--Contractor Testing, and Alternate II of the clause at 52.209-
4, First Article Approval--Government Testing)''.


9.306  [Amended]

    3. Section 9.306 is amended by removing paragraphs (c) through (e); 
redesignating paragraph (f) as (c); removing paragraphs (g) through 
(i); and redesignating paragraph (j) as (d).
    4. Section 9.308 is revised to read as follows:


9.308  Solicitation provision.

    (a) The contracting officer shall insert the provision at 52.209-
00, Waiver of First Article Testing and Approval Requirements, in 
solicitations containing a requirement for first article testing and 
approval, unless it is known at the time of solicitation that first 
article testing requirements will not be waived.
    (b) When the Government is responsible for first article testing, 
and the Government's estimated testing costs will be used as a factor 
in evaluating offers, the contracting officer shall use the basic 
provision with its Alternate I. The contracting officer shall insert 
the appropriate dollar figure as indicated in the provision.


9.308-1 and 9.308-2  [Removed]

    5. Sections 9.308-1 and 9.308-2 are removed.
    6. Sections 9.309, 9.309-1 and 9.309-2 are added to read as 
follows:


9.309  Contract clauses.


9.309-1  Testing performed by the contractor.

    (a) (1) The contracting officer shall insert the clause at 52.209-
3, First Article Approval--Contractor Testing, in solicitations and 
contracts when a fixed-price contract is contemplated and it is 
intended that the contract require (i) first article approval and (ii) 
that the contractor be required to conduct the first article testing.
    (2) If the first article may not be delivered as part of the 
contract quantity, the contracting officer shall use the basic clause 
with its Alternate I.
    (3) If it is intended that the approved first article serve as a 
manufacturing standard, the contracting officer shall use the basic 
clause with its Alternate II.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 52.209-3, First Article Approval--Contractor 
Testing, in solicitations and contracts when a cost-reimbursement 
contract is contemplated and it is intended that the contract require 
(1) first article approval and (2) that the contractor be required to 
conduct the first article test. The appropriate alternate(s) shall be 
used with the basic clause.


9.309-2  Testing performed by the Government.

    (a)(1) The contracting officer shall insert the clause at 52.209-4, 
First Article Approval--Government Testing, in solicitations and 
contracts when a fixed-price contract is contemplated and it is 
intended that the contract require first article approval and that the 
Government will be responsible for conducting the first article test.
    (2) If the first article may not be delivered as part of the 
contract quantity, the contracting officer shall use the clause with 
its Alternate I.
    (3) If it is intended that the approved first article serve as a 
manufacturing standard, the contracting officer shall use the clause 
with its Alternate II.
    (4) If it is intended that the contractor be required to remove and 
dispose of the first article from the Government test facility, the 
contracting officer shall use the clause with its Alternate III.
    (b) The contracting officer shall insert a clause substantially the 
same as the clause at 52.209-4, First Article Approval--Government 
Testing, in solicitations and contracts when a cost-reimbursement 
contract is contemplated and it is intended that the contract require 
first article approval and that the Government be responsible for 
conducting the first article test. The appropriate alternate(s) shall 
be used with the clause.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    7. Section 52.209-00 is added to read as follows:


52.209-00  Waiver of first article testing and approval requirements.

    As prescribed in 9.308(a), insert the following provisions:

Waiver of First Article Testing and Approval Requirements (Date)

    (a) The Government may waive the requirement for first article 
testing and approval where supplies identical or similar to those 
called for in the schedule has been previously furnished by the 
Offeror and have been accepted by the Government.
    (b) Offerors requesting waiver of first article testing and 
approval requirements shall provide the contract number(s) under 
which identical or similar supplies were previously furnished by the 
offeror and accepted by the Government. National stock number(s) 
previously furnished shall also be provided, as applicable.
    (c) All Offerors are required to submit an offer based on 
testing and approval of the first article, regardless of whether 
waiver of first article requirements is requested.
    (d) Offerors may submit an alternate offer based on waiver of 
first article testing and approval requirements.
    (e) Any acceleration in the delivery schedule resulting from 
waiver of first article testing and approval requirements shall not 
be a factor in evaluation for award.

(End of provision)

    Alternate I (DATE). As prescribed in 9.308(b), add the following 
paragraph (f) to the basic provision:
    (f) The estimated cost to the Government for first article 
testing is $______. For evaluation purposes, this amount will be 
added to the offer of each Offeror for whom first article testing is 
not waived.

    8. Section 52.209-3 is amended as follows:
    a. In the introductory text by removing ``9.308-1(a)'' and 
inserting in its place ``9.309-1(a)'';
    (b) In the clause heading by revising the date;
    (c) In paragraph (e) of the clause by removing ``Unless otherwise 
provided in the contract, and if'' and inserting in its place ``IF'';
    (d) In paragraph (g) by revising the last sentence;
    (e) In paragraph (h) by removing ``offeror/contractor'' each time 
it appears and inserting ``Contractor'';
    (f) Adding paragraph (i); and
    (g) Revising Alternatives I and II to read as follows:


52.209-3  First article approval--contractor testing.

* * * * *

First Article Approval--Contractor Testing (Date)

* * * * *
    (g) * * * However, before first article approval, the 
Contracting Officer may provide written authorization for the 
Contractor to acquire specific materials or components or to 
commence production to the extent essential to meet the delivery 
schedules. Until first article approval is granted, only costs for 
the first article and costs incurred under the Contracting Officer's 
written authorization are allocable to this contract for (1) 
progress payments, or (2) termination settlements if the contract is 
terminated for the convenience of the Government. If first article 
tests reveal deviations from contract requirements, the Contractor 
shall, at the location designated by the Government, make the 
required changes or replace all items produced under this contract 
at no change in the contract price.
* * * * *
    (i) Unless exempted by the Contracting Officer, the Contractor 
shall produce both the first article and the production quantity at 
the same facility and shall submit a certification to this effect 
with each first article.

(End of clause)

    Alternate I (DATE). As prescribed in 9.309-1(a)(2) and (b), 
substitute the following paragraph (e) for paragraph (e) of the 
basic clause:
    (e) The first article shall not be delivered as part of the 
contract quantity.
    Alternate II (DATE). As prescribed in 9.309-1(a) (3) and (b), 
added the following paragraph (j) to the basic clause:
    (j) The approved first article shall serve as a manufacturing 
standard.

    9. Section 52.209-4 is amended as follows:
    (a) In the introductory text by removing ``9.308-29(a) and (b)'' 
and inserting ``9.309-2(a)'';
    (b) In the clause heading by revising the date;
    (c) In paragraph (a) of the clause by revising the second sentence;
    (d) Revising paragraph (e) of the clause;
    (e) Removing the last sentence of paragraph (h) and adding, in its 
place, three sentences;
    (f) In paragraph (i) by removing ``Offeror/'' each time it is used;
    (g) Adding paragraph (j); and
    (h) Revising Alternates I and II and adding Alternate III to read 
as follows:


52.209-4  First article approval--Government testing.

* * * * *

First Article Approval--Government Testing (Date)

* * * * *
    (a) * * * The shipping documentation shall be clearly marked 
``FIRST ARTICLE SAMPLES: Contract No. ______, Lot/Item No. ______.'' 
* * *
* * * * *
    (e) If the approved first article is not consumed or destroyed 
in testing, the Contractor may deliver the approved first article as 
part of the contract quantity if it meets all contract requirements 
for acceptance.
* * * * *
    (h) * * * However, before first article approval, the 
Contracting Officer may provide written authorization for the 
Contractor to acquire specific materials or components or to 
commence production to the extent essential to meet the delivery 
schedules. Until first article approval is granted, only costs for 
the first article and costs incurred under the Contracting Officer's 
written authorization are allocable to this contract for (1) 
progress payments, or (2) termination settlements if the contract is 
terminated for the convenience of the Government. If first article 
tests reveal deviations from contract requirements, the Contractor 
shall, at the location designated by the Government, make the 
required changes or replace all items produced under this contract 
at no change in the contract price.
* * * * *
    (j) Unless exempted by the Contracting Officer, the Contractor 
shall produce both the first article and the production quantity at 
the same facility and shall submit a certification to this effect 
with each first article.

(End of clause)

    Alternate I (DATE). As prescribed in 9.309-2(a) (2) and (b), 
substitute the following paragraph (e) for paragraph (e) of the 
basic clause:
    (e) The first article shall not be delivered as part of the 
contract quantity.
    Alternate II (DATE). As prescribed in 9.309-2(a) (3) and (b), 
add the following paragraph to the basic clause:
    (k) The approved first article shall serve as a manufacturing 
standard.
    Alternate III (DATE). As prescribed in 9.309-2(a) (4) and (b), 
add the following paragraph to the basic clause:
    (l) The Contractor shall remove and dispose of any first article 
from the Government test facility at the Contractor's expense.

[FR Doc. 94-6902 Filed 3-25-94; 8:45 am]
BILLING CODE 6820-34-M