[Federal Register Volume 69, Number 17 (Tuesday, January 27, 2004)]
[Proposed Rules]
[Pages 4012-4015]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-1512]



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Part III





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Parts 12, 14, 15, and 52



Federal Acquisition Regulation; Electronic Representations and 
Certifications; Proposed Rule

  Federal Register / Vol. 69, No. 17 / Tuesday, January 27, 2004 / 
Proposed Rules  

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 12, 14, 15, and 52

[FAR Case 2002-024]
RIN 9000-AJ80


Federal Acquisition Regulation; Electronic Representations and 
Certifications

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 (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to require offerors to submit 
representations and certifications electronically via the Business 
Partner Network (BPN), unless certain exceptions apply. The BPN is a 
grouping of systems that follow vendor data. Online Representations and 
Certifications Application (ORCA) is one application on the BPN to 
replace the paper based Representations and Certifications (Reps and 
Certs) process.

DATES: Interested parties should submit comments in writing on or 
before March 29, 2004, to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to--General Services Administration, 
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet [email protected]

    Please submit comments only and cite FAR case 2002-024 in all 
correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Jeritta Parnell, Procurement 
Analyst, at (202) 501-4082. Please cite FAR case 2002-024.

SUPPLEMENTARY INFORMATION:

A. Background

    Under current FAR regulations, offerors are required, for each 
solicitation issued, to complete certain provisions that require 
representations and certifications. One of the e-Government Integrated 
Acquisition Environment's (IAE) initiatives is to eliminate the 
administrative burden on offerors who must submit the same information 
to various contracting offices. Representations and certifications that 
are completed on-line can then be accessed by procurement offices 
across the Federal government. As part of this process, the software 
will use certain information that a contractor has already provided in 
the Central Contractor Registration (CCR) database. Therefore, this 
requirement only applies to offerors that also are required to register 
in the CCR database. FAC 16 published in the Federal Register at 68 FR 
56668, October 1, 2003, mandates FAR Case 2002-018, Central Contractor 
Registration, as a requirement to contractors doing business with 
executive agencies. Implementation of the CCR rule should be 
accomplished by December 2003.
    This proposed rule amends FAR parts 12, 14, 15, and 52 to require 
offerors to--
    (1) Provide representations and certifications electronically via 
the BPN Web site at www.bpn.gov;
    (2) Update the representations and certifications as necessary, but 
at least annually to ensure they are kept current, accurate, and 
complete; and
    (3) Make changes that affect only one solicitation by completing 
the appropriate section of certain solicitation provisions.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The changes may 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 FAR requires small 
businesses to provide representations and certifications for individual 
solicitations. However, FAR 15.209(g) and FAR 14.213 do permit annual 
submissions if authorized by individual agencies. This rule will 
establish a requirement for annual submissions by electronic means.
    An Initial Regulatory Flexibility Analysis (IRFA) has been prepared 
and will be provided to the Chief Counsel for Advocacy for the Small 
Business Administration. The analysis is summarized as follows:

    The FAR requires small businesses to provide representations and 
certifications for individual solicitations. However, FAR 15.209(g) 
and FAR 14.213 do permit annual submissions if authorized by 
individual agencies. This rule will establish a requirement for 
annual submissions by electronic means.
    In an effort to broaden use and reliance upon e-business 
applications, the Civilian Agency Acquisition Council and the 
Defense Acquisition Regulations Council are working with the Office 
of Federal Procurement Policy to eliminate the need to maintain 
paper-based sources of contractor information. The objective of this 
rule is to eliminate the need for offerors to submit the same 
information (i.e., representations and certifications) to different 
Government contracting offices. By the offerors providing this 
information to a centralized location, it is anticipated that this 
rule will have a significant positive impact on small businesses by 
reducing their overall administrative burden.
    The rule will apply to small business offerors that also are 
required to register in the Central Contractor Registration (CCR) 
database. The reason for the link with CCR is that, as part of the 
on-line representations and certifications process, the software 
will use information that an offeror has already provided into the 
CCR database. The offeror will provide the additional information 
needed. Therefore, small businesses that are exempted from 
registering in the CCR database are also exempted from submitting 
representations and certifications electronically.
    Based on Governmentwide data, approximately, 20,825 small 
businesses were awarded contracts of $25,000 or more in fiscal year 
2002. It is estimated that a majority of them will be subject to the 
rule. Many of these businesses are already among the over 240,000 
registrants in CCR.
    Administrative or financial personnel that have general 
knowledge of the contractor's business are able to register by 
providing the pertinent information into the BPN Web site.
    The proposed rule when finalized will not duplicate, overlap, or 
conflict with any other Federal rules.
    There are no significant practical alternatives that will 
accomplish the objective of this rule. Continued reliance on a 
paper-based system would unnecessarily promote inefficiency 
associated with paper-based processes. The successful phase-in of 
CCR by the Department of Defense demonstrates that the Federal 
contracting community, including small businesses, is successfully 
transitioning to greater use of electronic tools and their 
associated efficiencies to conduct business.

    The FAR Secretariat has submitted a copy of the IRFA to the Chief 
Counsel for Advocacy of the Small Business Administration. A copy of 
the IRFA may be obtained from the FAR Secretariat. The Councils will 
consider comments from small entities concerning the affected FAR parts 
12, 14, 15, and 52 in accordance with 5 U.S.C. 610. Comments must be 
submitted separately and should cite 5 U.S.C 601, et seq. (FAR case 
2002-024), in correspondence.

[[Page 4013]]

C. Paperwork Reduction Act

    The Paperwork Reduction Act (Pub. L. 104-13) applies because the 
proposed rule contains information collection requirements. The rule 
requires offerors to--
    (1) Provide representations and certifications electronically via 
the BPN Web site;
    (2) Update the representations and certifications as necessary, but 
at least annually to ensure they are kept current, accurate, and 
complete; and
    (3) Make changes that affect only one solicitation by completing 
the appropriate section of certain solicitations.
    The requirement to submit certain representations and 
certifications on line--
    (a) Eliminates the administrative burden for the offeror of 
submitting the same information to various contracting offices; and
    (b) Allows access by procurement offices across the Federal 
Government.
    Individual FAR clearances are assigned to the majority of the 
representations and certifications listed in the rule. Four of the 
representations and certifications are managed under other agencies' 
clearances. The FAR clearances impacted by this rule are 9000-0018, 
9000-0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-
0139, 9000-0024, 9000-0130, 9000-0025, and 9000-0090. The clearance 
associated with another agency is 1215-0072. It is a DoL clearance.
    The above FAR clearances have been revised to reflect a 
``percentage of responses submitted electronically'' of 75%, which in 
turn decreases the total annual hours associated with each burden. In 
accordance with (b)(1)(iv) of section 1320.3, Definitions, of 5 CFR 
1320.3(b)(1)(iv), the definition of Burden includes ``* * * developing, 
acquiring, installing, and utilizing technology and systems for the 
purpose of disclosing and providing information * * *''. As a result, 
the subject FAR clearances have been revised to show a total decrease 
of 35% in burden hours associated with the proposed rule's 
requirements. The ``total annual hours'' of the subject FAR clearances 
have been revised as shown:

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                                                                                     Actual %
                                           Previous     Revised    Previous ``% of   of burden   Revised ``% of
              OMB clearance                 ``total     ``total       responses       reduced       responses
                                            annual      annual        collected      (total of      collected
                                            hours''     hours''   electronically''     35%)     electronically''
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9000-0018...............................       12850        8352              0             35             75
9000-0097...............................      300000      195000              0             35             75
9000-0094...............................       91667       59584              0             35             75
9000-0047...............................       77810       50577              0             35             75
9000-0150...............................      383007      268102              5             30             75
9000-0155...............................         250         162              0             35             75
9000-0134...............................       32175       20914              0             35             75
9000-0139...............................       83744       58621              5             30             75
9000-0024...............................        9785        6361              0             35             75
9000-0130...............................         952         666              5             30             75
9000-0025...............................        1904        1238              0             35             75
9000-0090...............................       29970       19480              0             35             75
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D. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than March 29, 2004, to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, 
Washington, DC 20405. Please cite OMB Control Numbers 9000-0018, 9000-
0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139, 
9000-0024, 9000-0130, 9000-0025, and 9000-0090, Electronic 
Representations and Certifications.
    Public comments are particularly invited on: whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    Requester may obtain a copy of the information collection 
package(s) from the General Services Administration, FAR Secretariat 
(MVA), Room 4035, Washington, DC 20405, telephone (202) 501-4755. 
Please cite OMB Control Numbers 9000-0018, 9000-0097, 9000-0094, 9000-
0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139, 9000-0024, 9000-0130, 
9000-0025, and 9000-0090, Electronic Representations and 
Certifications, in all correspondence.

List of Subjects in 48 CFR Parts 12, 14, 15, and 52

    Government procurement.

    Dated: January 20, 2004.
Laura Auletta,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 12, 14, 
15, and 52 as set forth below:
    1. The authority citation for 48 CFR parts 12, 14, 15, and 52 are 
revised to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 12--ACQUISITION OF COMMERCIAL ITEMS

    2. Amend section 12.301 by adding a sentence after the second 
sentence in paragraph (b)(1) to read as follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (b) * * * Use the provision with its Alternate I in solicitations 
when an exception to Central Contractor Registration at FAR 4.1102(a) 
applies. * * *
* * * * *

PART 14--SEALED BIDDING

    3. Amend section 14.201-5 by revising paragraph (a) to read as 
follows:

[[Page 4014]]

14.201-5  Part IV--Representations and instructions.

* * * * *
    (a) Section K, Representations, certifications, and other 
statements of bidders. (1) Include in this section those solicitation 
provisions that require representations, certifications, or the 
submission of other information by bidders.
    (2) FAR clause 52.214-30, Annual Representations and 
Certifications--Sealed Bidding, shall be included in the solicitation 
to permit electronic submission of certain representations and 
certification under the circumstances prescribed at 14.201-6(u).
* * * * *
    4. Amend section 14.201-6 by revising paragraph (u) to read as 
follows:


14.201-6  Solicitation provisions.

* * * * *
    (u) Insert the provision at 52.214-30, Annual Representations and 
Certifications--Sealed Bidding, in invitations for bids that contain 
the clause at 52.204-7, Central Contractor Registration (see 14.213).
* * * * *
    5. Revise section 14.213 to read as follows:


14.213  Annual submission of representations and certification.

    (a) Offerors shall submit electronic annual representations and 
certifications via the Business Partner Network (BPN) at http://www.bpn.gov in conjunction with registration in the Central Contractor 
Registration database unless an exception listed at FAR 4.1102(a) 
applies.
    Offerors shall update the representations and certifications as 
necessary, but at least annually to ensure they are kept current, 
accurate, and complete. The representations and certifications are 
effective until one year from date of submission or update.
    (b) If FAR clause 52.214-30 is included in the solicitation, do not 
include the following representations and certifications in the 
solicitation:
    (1) 52.203-2, Certificate of Independent Price Determination.
    (2) 52.203-11, Certification and Disclosure Regarding Payments to 
Influence Certain Transactions.
    (3) 52.204-3, Taxpayer Identification.
    (4) 52.204-5, Women-Owned Business (Other Than Small Business).
    (5) 52.209-5, Certification Regarding Debarment, Suspension, 
Proposed Debarment, and Other Responsibility Matters.
    (6) 52.214-14, Place of Performance Sealed Bidding.
    (7) 52.215-6, Place of Performance.
    (8) 52.219-1, Small Business Program Representations (Basic & 
Alternate I).
    (9) 52.219-2, Equal Low Bids.
    (10) 52.219-19, Small Business Concern Representation for the Small 
Business Competitiveness Demonstration Program.
    (11) 52.219-21, Small Business Size Representation for Targeted 
Industry Categories Under the Small Business Competitiveness 
Demonstration Program.
    (12) 52.219-22, Small Disadvantaged Business Status (Basic & 
Alternate I).
    (13) 52.222-18, Certification Regarding Knowledge of Child Labor 
for Listed End Products.
    (14) 52.222-22, Previous Contracts and Compliance Reports.
    (15) 52.222-25, Affirmative Action Compliance.
    (16) 52.222-48, Exemption from Application of Service Contract Act 
Provisions for Contracts for Maintenance, Calibration, and/or Repair of 
Certain Information Technology, Scientific and Medical and/or Office 
and Business Equipment Contractor Certification.
    (17) 52.223-4, Recovered Material Certification.
    (18) 52.223-9, Estimate of Percentage of Recovered Material Content 
for EPA-Designated Products (Alternate I only).
    (19) 52.223-13, Certification of Toxic Chemical Release Reporting.
    (20) 52.225-2, Buy American Act Certificate.
    (21) 52.225-4, Buy American Act, North American Free Trade 
Agreement--Israeli Trade Act Certificate (Basic, Alternate I & II).
    (22) 52.225-6, Trade Agreements Certificate.
    (23) 52.226-2, Historically Black College or University and 
Minority Institution Representation.
    (24) 52.227-6, Royalty Information (Basic & Alternate I).
    (25) 52.227-15--Representation of Limited Rights Data and 
Restricted Computer Software.
    (c) Offerors that have submitted annual representations and 
certifications shall complete the appropriate section of the provision 
at 52.214-30, Annual Representations and Certifications Sealed Bidding 
to--
    (1) Affirm in their bids that the representations and 
certifications they have posted to the BPN are current for the purposes 
of the solicitation; or
    (2) Make changes that affect only one solicitation.

PART 15--CONTRACTING BY NEGOTIATION

    6. Amend section 15.204-5 by revising paragraph (a) to read as 
follows:


15.204-5  Part IV--Representations and Instructions.

* * * * *
    (a) Section K, Representations, certifications, and other 
statements of offerors. (1) Include in this section those solicitation 
provisions that require representations, certifications, or the 
submission of other information by offerors.
    (2) FAR clause 52.215-7, Annual Representations and Certifications-
-Negotiation, shall be included in the solicitation to permit 
electronic submission of certain representations and certifications via 
the BPN at http://www.bpn.gov in conjunction with registration in the 
Central Contractor Registration database under the circumstances 
prescribed at 15.209(g)(1).
* * * * *
    7. In section 15.209 revise paragraph (g) to read as follows:


15.209  Solicitation provisions and contract clauses.

* * * * *
    (g)(1) Insert the provision at 52.215-7, Annual Representations and 
Certifications--Negotiation, in solicitations that contain the clause 
at FAR 52.204-7, Central Contractor Registration (see 14.213).
    (2) If the provision at 52.215-7 is included in the solicitation, 
do not include the representations and certifications at 14.213(b) in 
the solicitation.
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    8. Amend section 52.212-1 by revising the date of the provision and 
paragraph (b)(8); and adding Alternate I to read as follows:


52.212-1  Instructions to Offerors Commercial Items.

* * * * *

Instructions to Offerors--Commercial Items (Date)

* * * * *
    (b) Submission of offers. * * *
    (8) A completed copy of the representations and certifications 
at FAR 52.212-3 (see FAR 52.212-3(j)) for those representations and 
certifications that the offeror shall complete electronically);
* * * * *

(End of provision)
    Alternate I (Date). As prescribed in 12.301(b)(1), substitute 
the following paragraph (b)(8) for paragraph (b)(8) of the basic 
provision:
    (8) A completed written copy of the representations and 
certifications at FAR 52.212-3 excluding paragraph (j).


[[Page 4015]]


    9. Amend section 52.212-3 by revising the date of the provision; 
adding an introductory paragraph; and revising paragraph (j) to read as 
follows:


52.212-3  Offeror Representations and Certifications.

    Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (Date)

    An offeror shall complete only paragraph (j) of this provision 
if the offeror has completed the annual representations and 
certifications electronically via the Business Partner Network (BPN) 
(but see paragraph (j)(2)). If an offeror has not completed the 
annual representations and certifications electronically via the 
BPN, the offeror shall complete only paragraphs (b) through (i) of 
this provision.
* * * * *
    (j) Annual Representations and Certifications [Do not complete 
if solicitation includes 52.212-1, Alternate I. Any changes provided 
by the offeror in (j)(2) of this provision do not automatically 
change the representations and certifications posted on the BPN]. 
The offeror has completed the annual representations and 
certifications electronically via the BPN Web site at http://www.bpn.gov. After reviewing the BPN database information, the 
offeror verifies that the representations and certifications 
currently posted electronically at FAR 52.212-3, Offeror 
Representations and Certifications--Commercial Items [check the 
appropriate block]:
    [ ] (1) Are current, accurate, and complete as of the date of 
this offer and are incorporated in this offer by reference.
    [ ] (2) Are current, accurate, and complete as of the date of 
this offer and are incorporated in this offer by reference, except 
for paragraphs --------------------.
    [Identify the applicable paragraphs at (b) through (i) of this 
provision that the offeror has completed for the purposes of this 
solicitation only.]
    These amended representation(s) and/or certification(s) are also 
incorporated in this offer and are current, accurate, and complete 
as of the date of this offer.

(End of provision)

* * * * *
    10. Revise section 52.214-30 to read as follows:


52.214-30  Annual Representations and Certification--Sealed Bidding.

    As prescribed in 14.201-6(u), insert the following provision:

Annual Representations and Certifications--Sealed Bidding (Date)

    The bidder has completed the annual representations and 
certifications electronically via the Business Partner Network (BPN) 
Web site at http://www.bpn.gov. After reviewing the BPN database 
information, the bidder verifies that the representations and 
certifications currently posted electronically [check the 
appropriate block]:
    [ ] (a) Are current, accurate, and complete as of the date of 
this offer and are incorporated in this bid by reference (see FAR 
14.213(b)).
    [ ] (b) Are current, accurate and complete as of the date of 
this bid and are incorporated in this bid by reference, except for 
the changes identified below [insert changes, identifying change by 
clause number, title, date].
    These amended representation(s) and/or certification(s) are also 
incorporated in this bid and are current, accurate, and complete as 
of the date of this bid.

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                Far clause no.                  Title     Date    Change
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    Any changes provided by the bidder do not automatically update 
the representations and certifications posted on the BPN.

(End of provision)

    11. Revise section 52.215-7 to read as follows:


52.215-7  Annual Representations and Certifications Negotiation.

    As prescribed in 15.209(g), insert the following provision:

Annual Representations and Certifications--Negotiation (Date)

    The offeror has completed the annual representations and 
certifications electronically via the Business Partner Network (BPN) 
Web site at http://www.bpn.gov. After reviewing the BPN database 
information, the offeror verifies that the representations and 
certifications currently posted electronically [check the 
appropriate block]:
    [ ] (a) Are current, accurate, and complete as of the date of 
this offer and are incorporated in this offer by reference (see FAR 
14.2113(b)).
    [ ] (b) Are current, accurate, and complete as of the date of 
this proposal and are incorporated in this offer by reference, 
except for the changes identified below [insert changes, identifying 
change by clause number, title, date].
    These amended representation(s) and/or certification(s) are also 
incorporated in this offer and are current, accurate, and complete 
as of the date of this proposal.

------------------------------------------------------------------------
                Far clause No.                  Title     Date    Change
------------------------------------------------------------------------
 
------------------------------------------------------------------------

    Any changes provided by the offeror do not automatically update 
the representations and certifications posted on the BPN.

(End of provision)

[FR Doc. 04-1512 Filed 1-26-04; 8:45 am]
BILLING CODE 6820-EP-P