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