[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, 

[[Page 39874]]
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