[Federal Register Volume 64, Number 42 (Thursday, March 4, 1999)]
[Rules and Regulations]
[Pages 10531-10535]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 99-5203]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION


NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 4, 12, 14, 26, 27, 32, 41, and 52

[FAC 97-11; FAR Case 96-013; Item I]
RIN 9000-AH97

Federal Acquisition Regulation; Review of FAR Representations

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

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule amending 
the Federal Acquisition Regulation (FAR) to remove or reduce certain 
requirements for representations and other statements from offerors and 
contractors.

EFFECTIVE DATE: May 3, 1999.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Paul Linfield, Procurement Analyst, at (202) 501-
1757. Please cite FAC 97-11, FAR case 96-013.

SUPPLEMENTARY INFORMATION:

A. Background

    This case was initiated in response to requests from industry to 
eliminate representations required by the FAR that place an unnecessary 
burden on offerors or contractors. A proposed rule was published in the 
Federal Register on May 7, 1998 (63 FR 25382), with comments requested 
by July 6, 1998. Comments were received from 4 respondents and were 
considered in formulation of the final rule. The final rule is not 
substantively different from the proposed rule. This rule--
    1. Deletes the clause at 52.214-17, Affiliated Bidders;
    2. Reduces the information collection requirements associated with 
the clauses at 52.204-5, Women-Owned Business; 52.212-3, Offeror 
Representations and Certifications--Commercial Items; 52.214-21, 
Descriptive Literature; 52.228-9, Cargo Insurance; and 52.241-1, 
Electric Service Territory Compliance Representation; and
    3. Makes editorial changes to the clauses at 52.226-1, Utilization 
of Indian Organizations and Indian-Owned Economic Enterprises; 52.227-
15, Representation of Limited Rights Data and Restricted Computer 
Software; 52.228-8, Liability and Insurance--Leased Motor Vehicles; and 
52.232-12, Advance Payments.
    The FAR uses many different terms to express affirmation by the 
contractor, such as ``state,'' ``represent,'' ``affirm,'' ``declare,'' 
``warrant,'' and ``certify.''
    41 U.S.C. 425, as amended by Section 4301(b)(1) of Public Law 104-
106, restricts the inclusion of nonstatutory certification requirements 
in the FAR. This law was apparently enacted in response to industry 
perception that a certification requires a high level of attention 
within the company, may entail personal accountability of the signing 
official, and is more likely to be subject to criminal prosecution. 
Changes were made to the FAR under FAR case 96-312 to comply with this 
statute.
    As has already been established in FAR case 96-312, all other forms 
of contractual affirmation (e.g., statements, representations, 
affirmations, declarations, or warranties) are not certifications 
subject to the statutory restrictions of 41 U.S.C. 425 (see GAO 
Decision B-278404.2). The other terms of affirmation, despite 
subjective shades of meaning, are essentially synonymous and are not 
intended to imply gradations in the level of contractual requirement.
    Moreover, the implied difference in level of review for 
certifications as opposed to other forms of affirmation does not 
indicate a difference in the Government expectation of truthfulness or 
accuracy. The Government relies on information provided by the 
contractor, whether the contractor says ``I certify,'' ``I represent,'' 
``I state,'' or simply checks a block. If the information turns out to 
be false, then the Government may take action under the False 
Statements Act and may assert its right to other remedies.
    Because the use of multiple terms of affirmation other than 
``certification'' may convey unintended differences of meaning, it is 
our goal in the future to use more simple and consistent terminology. 
However, some of the terminology changes in the proposed rule were 
interpreted as a substantive change to the requirements of the clause, 
implying a reduction in the effectiveness of the commitment by the 
contractor. Therefore, in the final rule, we do not make any changes to 
the FAR clauses at 52.216-2, 52.216-3, 52.222-43, 52.222-44, and 
52.229-3 because the only proposed change was

[[Page 10532]]

substitution of an essentially similar term, just to standardize 
terminology.
    Changes to the clause at 52.225-10, Duty-Free Entry, are deferred 
to FAR case 97-024, Part 25 Rewrite.
    This regulatory action was not subject to Office of Management and 
Budget review under Executive Order 12866, dated September 30, 1993, 
and is not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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 does not 
significantly alter the type of information to be provided to the 
Government under the amended provisions and clauses.

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 96-511) is deemed to apply. 
This rule will result in a reduction of 119,150 hours in the 
information collection requirements approved under the following Office 
of Management and Budget (OMB) Control Numbers:
    9000-0018, Certification of Independent Price Determination and 
Parent Company and Identifying Data (Deletion of 52.214-17, Affiliated 
Bidders, reduction from 25,700 hours to approximately 12,850 hours);
    9000-0039, Descriptive Literature (Revision of 52.214-21, 
Descriptive Literature, reduction from 1,334 hours to approximately 
1,254 hours);
    9000-0136, Solicitation/Contract/Order for Commercial Items 
(Revision of 52.212-3, Offeror Representations and Certifications--
Commercial Items, reduction from 7,500,000 to approximately 7,394,050 
hours); and
    9000-0126, Electric Service Territory Compliance Representation 
(Revision of 52.241-1, Electric Service Territory Representations, 
reduction from 500 hours to approximately 230 hours).
    Although OMB Clearance Number 9000-0145, Use of Data Universal 
Numbering System (DUNS) as Primary Contractor Identification--FAR case 
95-307, ostensibly covers FAR clause 52.204-5, Women-Owned Business, 
the estimated burdens for that clearance appear to be based on the 
information collection requirements associated with use of the DUNS 
number. Therefore, although revisions to 52.204-5 will significantly 
reduce the number of responses required, we do not estimate any impact 
on the hours approved under 9000-0145.

List of Subjects in 48 CFR Parts 1, 4, 12, 14, 26, 27, 32, 41, and 
52

    Government procurement.

    Dated: February 25, 1999.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
    Therefore, 48 CFR Parts 1, 4, 12, 14, 26, 27, 32, 41, and 52 are 
amended as set forth below:
    1. The authority citation for 48 CFR Parts 1, 4, 12, 14, 26, 27, 
32, 41, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM

    2. Section 1.106 is amended in the table following the introductory 
paragraph by removing the FAR segment ``52.214-17'' and its 
corresponding OMB Control Number ``9000-0018''; and by adding, in 
numerical order, the following entry:


1.106  OMB approval under the Paperwork Reduction Act.

* * * * *

------------------------------------------------------------------------
                                                            OMB control
                       FAR segment                            number
------------------------------------------------------------------------
 
                  *        *        *        *        *
52.212-3................................................       9000-0136
 
                  *        *        *        *        *
------------------------------------------------------------------------

PART 4--ADMINISTRATIVE MATTERS

    3. Section 4.603 is amended by revising paragraph (b) to read as 
follows:


4.603  Solicitation provisions.

* * * * *
    (b) The contracting officer shall insert the provision at 52.204-5, 
Women-Owned Business (Other Than Small Business), in all solicitations 
that are not set aside for small business concerns and that exceed the 
simplified acquisition threshold, if the contract is to be performed 
inside the United States, its territories or possessions, Puerto Rico, 
the Trust Territory of the Pacific Islands, or the District of 
Columbia.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

    4. Section 12.503 is amended by revising paragraph (b)(5) to read 
as follows:


12.503  Applicability of certain laws to Executive agency contracts for 
the acquisition of commercial items.

* * * * *
    (b) * * *
    (5) 49 U.S.C. 40118, Requirement for a clause under the Fly 
American provisions (see 47.405).
* * * * *

PART 14--SEALED BIDDING


14.201-6  [Amended]

    5. Section 14.201-6 is amended by removing and reserving paragraph 
(k).


14.405  [Amended]

    6. Section 14.405 is amended in paragraph (d)(2) by adding ``and'' 
at the end of the sentence; by removing paragraph (e) and redesignating 
paragraph (f) as (e).

PART 26--OTHER SOCIOECONOMIC PROGRAMS


26.103  [Amended]

    7. Section 26.103 is amended in paragraphs (a), (b), and (e) by 
removing ``self-certification'' and adding ``representation'' in its 
place.

PART 27--PATENTS, DATA, AND COPYRIGHTS


27.404  [Amended]

    8. Section 27.404 is amended in the second sentence of paragraphs 
(d)(2) and (e)(3) by removing the word ``representation'' and adding 
``provision'' in its place.
    9. Section 27.409 is amended by revising the first sentence of 
paragraph (g) to read as follows:


27.409  Solicitation provisions and contract clauses.

* * * * *
    (g) In accordance with 27.404(d)(2), if the contracting officer 
desires to have an offeror state in response to a solicitation, to the 
extent feasible, whether limited rights data or restricted computer 
software are likely to be used in meeting the data delivery 
requirements set forth in the solicitation, the contracting officer 
shall insert the provision at 52.227-15, Representation of Limited 
Rights Data and Restricted Computer Software, in any solicitation 
containing the clause at 52.227-14, Rights in Data--General. * * *
* * * * *

PART 32--CONTRACT FINANCING

    10. Section 32.805 is amended by revising paragraph (a) to read as 
follows:

[[Page 10533]]

32.805  Procedure.

    (a) Assignments. (1) Assignments by corporations shall be--
    (i) Executed by an authorized representative;
    (ii) Attested by the secretary or the assistant secretary of the 
corporation; and
    (iii) Impressed with the corporate seal or accompanied by a true 
copy of the resolution of the corporation's board of directors 
authorizing the signing representative to execute the assignment.
    (2) Assignments by a partnership may be signed by one partner, if 
the assignment is accompanied by adequate evidence that the signer is a 
general partner of the partnership and is authorized to execute 
assignments on behalf of the partnership.
    (3) Assignments by an individual shall be signed by that individual 
and the signature acknowledged before a notary public or other person 
authorized to administer oaths.
* * * * *

PART 41--ACQUISITION OF UTILITY SERVICES

    11. Section 41.201 is amended by removing the last two sentences of 
paragraph (e) and adding a sentence at the end to read as follows:


41.201  Policy.

* * * * *
    (e) * * * Proposals from alternative electric suppliers shall 
provide a representation that service can be provided in a manner 
consistent with section 8093 of Public Law 100-202 (see 41.201(d)).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    12. Section 52.204-5 is revised to read as follows:


52.204-5  Women-Owned Business (Other Than Small Business).

    As prescribed in 4.603(b), insert the following provision:

Women-Owned Business (Other Than Small Business) (May 1999)

    (a) Definition. Women-owned business concern, as used in this 
provision, means a concern that is at least 51 percent owned by one 
or more women; or in the case of any publicly owned business, at 
least 51 percent of its stock is owned by one or more women; and 
whose management and daily business operations are controlled by one 
or more women.
    (b) Representation. [Complete only if the offeror is a women-
owned business concern and has not represented itself as a small 
business concern in paragraph (b)(1) of FAR 52.219-1, Small Business 
Program Representations, of this solicitation.] The offeror 
represents that it {time}  is, {time}  is not a women-owned business 
concern.

(End of provision)

    13. Section 52.212-3 is amended by revising the date of the 
provision; in paragraph (a) of the provision in the definition ``Women-
owned business concern,'' by removing the words ``the stock of which'' 
and adding ``its stock''; by revising paragraphs (c)(2), (c)(3), and 
(c)(4); and in the introductory text of paragraph (d) by removing 
``Certifications and representations'' and adding ``Representations'' 
to read as follows:


52.212-3   Offeror Representations and Certifications--Commercial 
Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (May 1999)

* * * * *
    (c) * * *
    (2) Small disadvantaged business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents, for general 
statistical purposes, that it {time}  is, {time}  is not a small 
disadvantaged business concern as defined in 13 CFR 124.1002.
    (3) Women-owned small business concern. [Complete only if the 
offeror represented itself as a small business concern in paragraph 
(c)(1) of this provision.] The offeror represents that it {time}  
is, {time}  is not a women-owned small business concern.

    Note: Complete paragraphs (c)(4) and (c)(5) only if this 
solicitation is expected to exceed the simplified acquisition 
threshold.

    (4) Women-owned business concern (other than small business 
concern). [Complete only if the offeror is a women-owned business 
concern and did not represent itself as a small business concern in 
paragraph (c)(1) of this provision.] The offeror represents that it 
{time}  is, {time}  is not a women-owned business concern.
* * * * *


52.214-17  [Reserved]

    14. Section 52.214-17 is removed and reserved.
    15. Section 52.214-21 is amended by revising the introductory text 
of the provision; and by revising the date, introductory text, and 
paragraph (d) of Alternate I to read as follows:


52.214-21   Descriptive literature.

    As prescribed in 14.201-6(p)(1), insert the following provision:
* * * * *
    Alternate I (May 1999). As prescribed in 14.201-6(p)(2), add the 
following paragraphs (d) and (e) to the basic provision.
    (d) The Contracting Officer may waive the requirement for 
furnishing descriptive literature if the bidder has supplied a 
product the same as that required by this solicitation under a prior 
contract. A bidder that requests a waiver of this requirement shall 
provide the following information:

Prior contract number--------------------------------------------------
Date of prior contract-------------------------------------------------
Contract line item number of product supplied ____________________
Name and address of Government activity to which delivery was made 
____________________
Date of final delivery of product supplied ____________________
* * * * *
    16. Section 52.219-1 is amended by revising the provision date; in 
the parenthetical of paragraphs (b)(2) and (b)(3) of the provision by 
adding ``the'' after the word ``if''; in paragraph (c) by revising 
``Woman-owned'' to read ``Women-owned''; and by revising the 
introductory text of paragraph (d)(2) to read as follows:


52.219-1   Small Business Program Representations.

* * * * *

Small Business Program Representations (May 1999)

* * * * *
    (d) * * *
    (2) Under 15 U.S.C. 645(d), any person who misrepresents a 
firm's status as a small, small disadvantaged, or women-owned small 
business concern in order to obtain a contract to be awarded under 
the preference programs established pursuant to section 8(a), 8(d), 
9, or 15 of the Small Business Act or any other provision of Federal 
law that specifically references section 8(d) for a definition of 
program eligibility, shall--
* * * * *


52.219-21   [Amended]

    17. Section 52.219-21 is amended by revising the provision date to 
read ``(May 1999)''; and by removing the statement ``Offeror represents 
as follows:'' which follows the first parenthetical.


52.226-1 [Amended]

    18. Section 52.226-1 is amended by revising the clause date to read 
``(May 1999)''; and in the first sentence of paragraph (c)(1) of the 
clause by removing ``self-certification'' each time it is used (twice) 
and adding ``representation'' in its place.
    19. Section 52.227-15 is revised to read as follows:


52.227-15   Representation of Limited Rights Data and Restricted 
Computer Software.

    As prescribed in 27.409(g), insert the following provision:

Statement of Limited Rights Data and Restricted Computer Software (May 
1999)

    (a) This solicitation sets forth the work to be performed if a 
contract award results, and the Government's known delivery

[[Page 10534]]

requirements for data (as defined in FAR 27.401). Any resulting 
contract may also provide the Government the option to order 
additional data under the Additional Data Requirements clause at 
52.227-16 of the FAR, if included in the contract. Any data 
delivered under the resulting contract will be subject to the Rights 
in Data--General clause at 52.227-14 that is to be included in this 
contract. Under the latter clause, a Contractor may withhold from 
delivery data that qualify as limited rights data or restricted 
computer software, and deliver form, fit, and function data in lieu 
thereof. The latter clause also may be used with its Alternates II 
and/or III to obtain delivery of limited rights data or restricted 
computer software, marked with limited rights or restricted rights 
notices, as appropriate. In addition, use of Alternate V with this 
latter clause provides the Government the right to inspect such data 
at the Contractor's facility.
    (b) As an aid in determining the Government's need to include 
Alternate II or Alternate III in the clause at 52.227-14, Rights in 
Data--General, the offeror shall complete paragraph (c) of this 
provision to either state that none of the data qualify as limited 
rights data or restricted computer software, or identify, to the 
extent feasible, which of the data qualifies as limited rights data 
or restricted computer software. Any identification of limited 
rights data or restricted computer software in the offeror's 
response is not determinative of the status of such data should a 
contract be awarded to the offeror.
    (c) The offeror has reviewed the requirements for the delivery 
of data or software and states [offeror check appropriate block]--
    {time}  None of the data proposed for fulfilling such 
requirements qualifies as limited rights data or restricted computer 
software.
    {time}  Data proposed for fulfilling such requirements qualify 
as limited rights data or restricted computer software and are 
identified as follows:
----------------------------------------------------------------------
----------------------------------------------------------------------
----------------------------------------------------------------------

    Note: ``Limited rights data'' and ``Restricted computer 
software'' are defined in the contract clause entitled ``Rights in 
Data--General.''

(End of provision)

    20. Section 52.228-8 is amended by revising the introductory 
paragraph, the clause date, and paragraph (e) of the clause to read as 
follows:


52.228-8   Liability and Insurance--Leased Motor Vehicles.

    As prescribed in 28.312, insert the following clause:

Liability and Insurance--Leased Motor Vehicles (May 1999)

* * * * *
    (e) The contract price shall not include any costs for insurance 
or contingency to cover losses, damage, injury, or death for which 
the Government is responsible under paragraph (a) of this clause.

(End of clause)

    21. Section 52.228-9 is revised to read as follows:


52.228-9   Cargo Insurance.

    As prescribed in 28.313(a), insert the following clause:

Cargo Insurance (May 1999)

    (a) The Contractor, at the Contractor's expense, shall provide 
and maintain, during the continuance of this contract, cargo 
insurance of $__________ per vehicle to cover the value of property 
on each vehicle and of $__________ to cover the total value of the 
property in the shipment.
    (b) All insurance shall be written on companies acceptable to 
__________ [insert name of contracting agency], and policies shall 
include such terms and conditions as required by __________ [insert 
name of contracting agency]. The Contractor shall provide evidence 
of acceptable cargo insurance to __________ [insert name of 
contracting agency] before commencing operations under this 
contract.
    (c) Each cargo insurance policy shall include the following 
statement:
    ``It is a condition of this policy that the Company shall 
furnish--
    (1) Written notice to __________ [insert name and address of 
contracting agency], 30 days in advance of the effective date of any 
reduction in, or cancellation of, this policy; and
    (2) Evidence of any renewal policy to the address specified in 
paragraph (1) of this statement, not less than 15 days prior to the 
expiration of any current policy on file with __________ [insert 
name of contracting agency].''

(End of clause)

    22. Section 52.232-12 is amended--
    a. By revising the introductory text, the date, paragraph (j), and 
the introductory text of paragraph (o) of the clause;
    b. In paragraph (o)(8) by removing ``and warranties'';
    c. By revising the date of Alternate V; and
    d. By revising the date, paragraph (g), the introductory text of 
paragraph (l), and paragraph (l)(8) of the clause following Alternate 
V.
    The revised text reads as follows:


52.232-12   Advance Payments.

    As prescribed in 32.412(a), insert the following clause:

Advance Payments (May 1999)

* * * * *
    (j) Insurance. (1) The Contractor shall maintain with 
responsible insurance carriers--
    (i) Insurance on plant and equipment against fire and other 
hazards, to the extent that similar properties are usually insured 
by others operating plants and properties of similar character in 
the same general locality;
    (ii) Adequate insurance against liability on account of damage 
to persons or property; and
    (iii) Adequate insurance under all applicable workers' 
compensation laws.
    (2) Until work under this contract has been completed and all 
advance payments made under the contract have been liquidated, the 
Contractor shall--
    (i) Maintain this insurance;
    (ii) Maintain adequate insurance on any materials, parts, 
assemblies, subassemblies, supplies, equipment, and other property 
acquired for or allocable to this contract and subject to the 
Government lien under paragraph (i) of this clause; and
    (iii) Furnish any evidence with respect to its insurance that 
the administering office may require.
* * * * *
    (o) Representations. The Contractor represents the following:
* * * * *
    Alternate V (May 1999). * * *
* * * * *

Advance Payments Without Special Bank Account (May 1999)

* * * * *
    (g) Insurance. (1) The Contractor shall maintain with 
responsible insurance carriers--
    (i) Insurance on plant and equipment against fire and other 
hazards, to the extent that similar properties are usually insured 
by others operating plants and properties of similar character in 
the same general locality;
    (ii) Adequate insurance against liability on account of damage 
to persons or property; and
    (iii) Adequate insurance under all applicable workers' 
compensation laws.
    (2) Until work under this contract has been completed and all 
advance payments made under the contract have been liquidated, the 
Contractor shall--
    (i) Maintain this insurance;
    (ii) Maintain adequate insurance on any materials, parts, 
assemblies, subassemblies, supplies, equipment, and other property 
acquired for or allocable to this contract and subject to the 
Government lien under paragraph (f) of this clause; and
    (iii) Furnish any evidence with respect to its insurance that 
the administering office may require.
* * * * *
    (l) Representations. The Contractor represents the following:
* * * * *
    (8) These representations shall be continuing and shall be 
considered to have been repeated by the submission of each invoice 
for advance payments.
* * * * *
    23. Section 52.241-1 is revised to read as follows:


52.241-1  Electric Service Territory Compliance Representation.

    As prescribed in 41.501(b), insert a provision substantially the 
same as the following:

Electric Service Territory Compliance Representation (May 1999)

    (a) Section 8093 of Public Law 100-202 generally requires 
purchases of electricity by any department, agency, or 
instrumentality of

[[Page 10535]]

the United States to be consistent with State law governing the 
provision of electric utility service, including State utility 
commission rulings and electric utility franchises or service 
territories established pursuant to State statute, State regulation, 
or State-approved territorial agreements.
    (b) By signing this offer, the offeror represents that this 
offer to sell electricity is consistent with Section 8093 of Public 
Law 100-202.
    (c) Upon request of the Contracting Officer, the offeror shall 
submit supporting legal and factual rationale for this 
representation.

(End of provision)

[FR Doc. 99-5203 Filed 3-3-99; 8:45 am]
BILLING CODE 6820-EP-P