[Federal Register Volume 61, Number 93 (Monday, May 13, 1996)]
[Rules and Regulations]
[Pages 21975-21978]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-11918]



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DEPARTMENT OF ENERGY

48 CFR Parts 904, 906, 911, 912, 913, 915, 919, 925, 926, 933, 950, 
952 and 970

RIN 1991-AB27


Acquisition Regulation; Technical Amendments

AGENCY: Department of Energy.

ACTION: Final rule.

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SUMMARY: The Department of Energy (DOE) today issues a final rule to 
make technical, non-substantive amendments to the Department of Energy 
Acquisition Regulation (DEAR). The Federal Acquisition Regulation (FAR) 
was amended several times to implement various parts of the Federal 
Acquisition Streamlining Act of 1994, Public Law 103-355. This rule 
amends sections of the DEAR to conform to the revised provisions of the 
FAR.

EFFECTIVE DATE: This final rule will be effective June 12, 1996.

FOR FURTHER INFORMATION CONTACT: Richard B. Langston, Office of Policy 
(HR-51), Office of the Deputy Assistant Secretary for Procurement and 
Assistance Management, Department of Energy, 1000 Independence Avenue, 
SW., Washington, DC 20585 (202) 586-8247.

SUPPLEMENTARY INFORMATION:

I. Explanation of Revisions
II. Procedural Requirements
    A. Review Under Executive Order 12866
    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. Review Under the National Environmental Policy Act
    G. Public Hearing Determination

I. Explanation of Revisions

    The revisions in this rule are either technical and nonsubstantive 
in nature, or nondiscretionary. They involve the renumbering or 
redesignating of DEAR sections or subsections, or the substitution of 
new terminology for designations previously used to describe ``small 
purchases'' and ``small and small disadvantaged businesses.'' These 
revisions are intended to ensure that the DEAR conforms to the FAR to 
implement various parts of the Federal Acquisition Streamlining Act of 
1994, Public Law 103-355. Three amendments to the FAR created a need 
for this technical amendment of the DEAR. New FAR regulations governing 
micropurchases, i.e., acquisitions below $2,500, and simplified 
acquisitions, i.e., acquisitions exceeding the micropurchase level but 
not greater than $100,000, were published respectively on December 15, 
1994 at 59 FR 64786 and July 3, 1995 at 60 FR 34741. These two 
amendments require changes at DEAR Parts 901, 904, 906, 913, 915, 925, 
952 and 970. The third amendment affected provisions dealing with 
commercial items, small business, and protests. It was published on 
September 18, 1995, at 60 FR 48206. It requires changes at DEAR Parts 
911, 912, 919, 926, and 933.

II. Procedural Requirements

A. Review Under Executive Order 12866

    This 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, this 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 regulations. These requirements, set forth in sections 2 (a) 
and (b), include eliminating drafting errors and needless ambiguity, 
drafting the regulations to minimize litigation, providing clear and 
certain legal standards for affected legal 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 this rule meets the requirements of sections 
2 (a) and (b) of Executive Order 12778.

C. Review Under the Regulatory Flexibility Act

    This rule was reviewed under the Regulatory Flexibility Act of 
1980, Public Law 96-354, which requires preparation of a regulatory 
flexibility analysis for any rule that 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

[[Page 21976]]

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. DOE has determined that 
this rule will not have a substantial direct effect on the 
institutional interests or traditional functions of States.

F. Review Under the 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). Pursuant to Appendix A of Subpart D of 
10 CFR 1021, National Environmental Policy Act Implementing Procedures 
(Categorical Exclusion A6), DOE has determined that this rule is 
categorically excluded from the need to prepare an environmental impact 
statement or environmental assessment.

G. Prior Notice and Public Hearing Determination

    The final regulations published in this notice are interpretive of 
FAR provisions implementing the Federal Acquisition Streamlining Act of 
1994, Public Law 103-355. They are non-discretionary in nature. DOE 
therefore is not providing prior notice and opportunity for public 
comment.
    DOE also has concluded that this rule does not involve any 
significant issues of law or fact. Therefore, consistent with 5 U.S.C. 
553, DOE has not scheduled a public hearing.

List of Subjects in 48 CFR Parts 904, 906, 911, 912, 913, 915, 919, 
925, 926, 933, 950, 952, and 970

    Government procurement.

    Issued in Washington, D.C., on April 25, 1996.
Richard H. Hopf,
Deputy Assistant Secretary for Procurement and Assistance Management.

    For the reasons set out in the preamble, Chapter 9 of Title 48 of 
the Code of Federal Regulations is amended as set forth below.
    1. The authority citation for Parts 904, 906, 911, 912, 913, 915, 
919, 925, 926, 933, 950, and 952 continues to read as follows:

    Authority: 42 U.S.C. 7254; 40 U.S.C. 486(c).

    1a. The authority citation for Part 970 continues to read:

    Authority: Sec. 161 of the Atomic Energy Act of 1954 (42 U.S.C. 
2201), sec. 644 of the Department of Energy Organization Act of 
1977, Public Law 95-91 (42 U.S.C. 7254).

PART 904--ADMINISTRATIVE MATTERS


Sec. 904.7103   [Amended]

    2. Section 904.7103, ``Solicitation provision and contract clause'' 
is amended, at both paragraphs (a) and (b), by revising the words 
``small purchase or other simplified purchase'' to read ``simplified 
acquisition.''

PART 906--COMPETITION REQUIREMENTS


Sec. 906.303-1   [Amended]

    3. Subsection 906.303-1(a), Requirements, is amended by removing 
the final sentence.

PART 912--[REDESIGNATED AS PART 911]

    4. Part 912 is redesignated Part 911 (Part 912 is reserved). The 
heading for the new 911 is ``DESCRIBING AGENCY NEEDS.''


Sec. 912.300, 912.302, 912.304   [Redesignated as 911.600, 911.602, 
911.604]

    a. Sections 912.300, 912.302, and 912.304 are redesignated 911.600, 
911.602, and 911.604 respectively.


911.600   [Amended]

    b. Newly redesignated Section 911.600 is amended by revising the 
reference ``FAR subpart 12.3'' to read ``FAR subpart 911.6.''


Sec. 911.604   [Amended]

    c. Newly designated Section 911.604 is amended:
    i. in paragraph (a) by revising ``952.212-70'' to read ``952.211-
70'' and removing ``(JUNE 1987)'';
    ii. in paragraph (b) by revising ``952.212-71'' to read ``952.211-
71'' and removing ``(JUNE 1987)'';
    iii. in paragraph (c) by revising ``952.212-70'' and ``952.212-71'' 
to read ``952.211-70'' and ``952.211-71'' respectively;
    iv. in paragraph (d) by revising ``952.212-70'' to read ``952.211-
70'' and removing ``(JUNE 1987)''; and,
    v. in paragraph (e) by revising ``952.212-71'' to read ``952.211-
71'' and removing ``(JUNE 1987).''

PART 913--SIMPLIFIED ACQUISITION PROCEDURES

    5. The Part heading for Part 913 is amended to read as set forth 
above.


Sec. 913.505-1   [Amended]

    6. Subsection 913.505-1 is amended as follows:
    a. at paragraph (a)(2) by revising the words ``small purchase'' in 
the first sentence to read ``simplified acquisition'';
    b. by adding a new third sentence to read: 913.505-1 Optional Form 
(OF) 347, Order for Supplies or Services, and Optional Form 348, Order 
for Supplies or Services-Continuation or DOE F 4250.3, Order for 
Supplies or Services.
    * * * Standard Form 1449 shall be used for acquisitions of 
commercial items.
    c. by adding, at paragraph (b)(2), the words ``or Standard Form 
1449'' after the words ``Optional Form 347.''

PART 915--CONTRACTING BY NEGOTIATION


915.970-8  [Amended]

    7. Subsection 915.970-8 is amended at paragraph (f)(1), second 
sentence, by removing the words ``labor surplus,'' and at paragraph 
(f)(2)(i), first sentence, by revising the words ``small business and 
small disadvantaged business'' to read ``small, small disadvantaged and 
women-owned small business,'' by removing paragraph (f)(2)(ii), and by 
redesignating subparagraph (f)(2)(iii) as (f)(2)(ii).


915.971-3  [Amended]

    8. Subsection 915.971-3, is amended at paragraph (b)(viii), by 
revising the words ``small and small disadvantaged'' to read ``small, 
small disadvantaged and women-owned small.''

PART 919--SMALL BUSINESS PROGRAMS

    9. The Part heading for Part 919 is revised to read as set forth 
above.


919.201  [Amended]

    10. Paragraph (c) of section 919.201 is amended in each of the 
first three sentences, by revising the words ``small and small 
disadvantaged'' to read

[[Page 21977]]

``small, small disadvantaged, and women-owned small'' and in the fourth 
sentence, by revising the words ``small business/small disadvantaged 
business (SB/DB) specialist'' to read ``small business specialist.''


919.501  [Amended]

    11. Section 919.501, General, at the end of the first sentence of 
paragraph (c), is amended by revising the words ``small purchase 
limitation'' to read ``simplified acquisition threshold.''


919.602-1  [Amended]

    12. Subsection 919.602-1, Referral, is amended at paragraph (a)(2) 
by removing the words ``and disadvantaged.''


919.7  [Amended]

Subpart 919.7--Subcontracting with Small Business, Small 
Disadvantaged Business, and Women-Owned Small Business Concerns

    13. The heading of Subpart 919.7 is revised to read as set forth 
above.

PART 925--FOREIGN ACQUISITION


925.901  [Amended]

    14. Section 925.901, Omission of the examination of records clause, 
is amended by revising its heading to read ``Omission of the audit 
clause.'' and by revising ``48 CFR 25.903'' to read ``48 CFR 25.901.''

PART 926--OTHER SOCIOECONOMIC PROGRAMS


926.7003  [Amended]

    15. Section 926.7003, Review of the procurement request, is amended 
by removing ``/Labor Surplus Area Set Aside.''

PART 933--PROTESTS, DISPUTES, AND APPEALS


933.106  [Amended]

    16. Section 933.106 is amended by revising the words ``for other 
than small purchases'' to read ``above the simplified acquisition 
threshold.''

PART 950--EXTRAORDINARY CONTRACTUAL ACTIONS


950.7101  [Amended]

    17. Section 950.7101, at paragraph (c)(2), first sentence, is 
amended by revising the words ``small businesses and small 
disadvantaged businesses'' to read ``small, small disadvantaged and 
women-owned small businesses.''

PART 952--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


952.212  [Redesignated as 952.211]

    18. Section 952.212 is redesignated 952.211. Its subsections are 
amended as follows:
    a. Subsections 952.212-70, 952.212-71, 952.212-72, and 952.212-73 
are redesignated 952.211-70, 952.211-71, 952.211-72, and 952.211-73 
respectively.
    b. Redesignated subsection 952.211-70, is amended by revising the 
reference ``912.304(a)'' to read ``911.604(a)'' in the introductory 
paragraph and by revising the reference ``912.304(d)'' to read 
``911.604(d)'' in Alternate I.
    c. Redesignated 952.211-71 is amended by revising the reference 
``912.304(b)'' to read ``911.604(b)'' in the introductory paragraph and 
by revising the reference ``912.304(e)'' to read ``911.604(e)'' in 
Alternate I.


952.226  [Amended]

    19. Section 952.226 is amended at 952.226-70(c) in the first 
sentence, 952.226-70(d) and 970.226-72(c)(2) by revising the words 
``Small Business and Small Disadvantaged Business Subcontracting Plan'' 
to read ``Small, Small Disadvantaged and Women-Owned Subcontracting 
Plan'' and at 952.226-71(b) by revising the words ``Utilization of 
Small Business Concerns and Small Disadvantaged Business Concerns'' to 
read ``Utilization of Small, Small Disadvantaged and Women-Owned Small 
Business Concerns.''


952.250-70  [Amended]

    20. Subsection 952.250-70, Nuclear hazards indemnity agreement, is 
amended at paragraph (h) by removing the words ``Officials Not to 
Benefit'' and revising the words ``Examination of Records by the 
Comptroller General'' to read ``Audit and records--negotiation.''

PART 970--DOE MANAGEMENT AND OPERATING CONTRACTS


970.19  Small, Small Disadvantaged and Women-Owned Small Business 
Concerns

    21. The heading of subpart 970.19 is revised to read as set forth 
above.


970.5203-2  [Removed and reserved]

    22. Subsection 970.5203-2, Examination of Records by the 
Comptroller General, is removed and reserved.


970.5204-9  [Amended]

    23. Subsection 970.5204-9, Accounts, records, and inspection, is 
amended by revising paragraph (g) and adding paragraph (i). The revised 
and added paragraphs read:

970.5204-9  Accounts, records, and inspection.

* * * * *

Accounts, Records, and Inspection (APR 1996)

* * * * *

    (g) Subcontracts. The contractor further agrees to require the 
inclusion of provisions similar to those in paragraphs (a) through 
(g) and paragraph (i) of this clause in all subcontracts (including 
fixed-price or unit-price subcontracts or purchase orders) of any 
tier entered into hereunder where, under the terms of the 
subcontract, costs incurred are a factor in determining the amount 
payable to the subcontractor.

    Note: If the prime contract contains a ``Defective Cost or 
Pricing Data'' clause, this paragraph (g) shall be modified by 
adding the following:

    The contractor further agrees to include an ``Audit'' clause, 
the substance of which is the ``Audit'' clause set forth at FAR 
52.215-2, in each subcontract which does not include provisions 
similar to those in paragraph (a) through paragraph (g) and 
paragraph (i) of this clause, but which contains a ``defective cost 
and pricing data'' clause.

* * * * *

    (i) Comptroller General.

    (1) The Comptroller General of the United States, or an 
authorized representative, shall have access to and the right to 
examine any of the contractor's directly pertinent records involving 
transactions related to this contract or a subcontract hereunder.

    (2) This paragraph may not be construed to require the 
contractor or subcontractor to create or maintain any record that 
the contractor or subcontractor does not maintain in the ordinary 
course of business or pursuant to a provision of law.

    (3) Nothing in this contract shall be deemed to preclude an 
audit by the General Accounting Office of any transaction under this 
contract.

970.5204-13  [Amended]

    24. Subsection 970.5204-13, Allowable costs and fixed-fee 
(Management and Operating contracts), at clause paragraph 
(e)(36)(ii)(A), is amended by revising the words ``Small Businesses and 
Small Disadvantaged Businesses'' (both sentences) to read ``small, 
small disadvantaged and women-owned small businesses'' and by revising 
the words ``Utilization of Small Business Concerns and Small 
Disadvantaged Business Concerns'' to read ``Utilization of Small, Small 
Disadvantaged and Women-Owned Small Business Concerns'' in the first 
sentence.

[[Page 21978]]

970.5204-14  [Amended]

    25. Subsection 970.5204-14, Allowable costs and fixed-fee (support 
contracts), at paragraph (e)(34)(ii)(A), is amended by revising the 
words ``Small Businesses and Small Disadvantaged Businesses'' (both 
sentences) to read ``small, small disadvantaged and women-owned small 
businesses'' and by revising the words ``Utilization of Small Business 
Concerns and Small Disadvantaged Business Concerns'' to read 
``Utilization of Small, Small Disadvantaged and Women-Owned Small 
Business Concerns.'' (first sentence).


970.5204-44  [Amended]

    26. Subsection 970.5204-44, Flowdown of contract requirements to 
subcontracts, is amended by removing and reserving paragraph (b)(12), 
Examination of Records by the Comptroller General, and revising the 
title of subparagraph (b)(19) to read ``Accounts, Records, and 
Inspection.''

[FR Doc. 96-11918 Filed 5-10-96; 8:45 am]
BILLING CODE 6450-01-P