[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Rules and Regulations]
[Pages 20295-20298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3678]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 5, and 7

[FAC 2005-09; FAR Case 2004-007; Item I; Docket FAR-2006-0020]
RIN 9000-AK08


Federal Acquisition Regulation; FAR Case 2004-007, Federal 
Technical Data Solution (FedTeDS)

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to require 
contracting officers to use the Federal Technical Data Solution 
(FedTeDS) for electronic posting of solicitation-related materials that 
require control over availability or distribution unless certain 
exceptions apply.

DATES: Effective Date: May 19, 2006.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-
6091. Please cite FAC 2005-09, FAR case 2004-007.

SUPPLEMENTARY INFORMATION:

A. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 69 FR 63436 on November 1, 2004. The 60-day comment period 
for the proposed rule ended January 3, 2005. Sixteen comments were 
received from seven commenters. Some of the comments merely agreed with 
the concept of FedTeDS, others pointed out areas of concern. The 
substantive comments are discussed below.

Public Comments

    1. Comment: FedTeDS will reduce competition on typical large 
construction projects. By restricting document access to those who are 
registered in CCR and have an access code, the use of FedTeDS will 
result in

[[Page 20296]]

reduced interest in the project and reduced competition.
    Council's response: In keeping with the President's Management 
Agenda and the eGov initiative, making FedTeDS use mandatory for 
solicitation-related documents that require limited availability or 
distribution will better secure that information and eliminate the use 
of duplicative and less secure document hosting systems. There has been 
no noticeable reduction in interest or competition where vendors have 
been required to register and use FedTeDS to access solicitation 
information. FedTeDS provides tools for vendors to customize their 
environment, track information, and reduce unnecessary paper handling.
    2. Comment: The construction industry standard is for plans and 
specifications to be viewable in plan rooms and on the internet. 
Others, such as plan rooms and printing companies, are likely to 
distribute FedTeDS materials publicly without the Government's 
knowledge.
    Council's response: Those who access and download FedTeDS 
information have an obligation to assure continued control over that 
information. The FedTeDS program staff is working with plan rooms to 
explore ways that the security provided by FedTeDS can be applied in a 
similar manner by plan rooms wishing to distribute the information 
outside FedTeDS.
    3. Comment: The use of FedTeDS should be optional, not mandatory. 
Optional use will allow agencies to maintain and develop similar 
websites. Agencies should be free to use or develop any mechanism they 
choose to secure solicitation related information.
    Council's response: As part of the Integrated Acquisition 
Environment, the objective of FedTeDS is to carry out the President's 
Management Agenda and the eGov initiative to eliminate duplicative and 
redundant systems. Agencies should not be compelled to choose among 
multiple mechanisms for securing solicitation-related data. Vendors and 
other interested parties should not be compelled to understand and 
adapt to an array of mechanisms and Web site addresses used to secure 
solicitation-related information. FedTeDS provides a single, secure 
system and Web site for Governmentwide use in controlling access and 
distribution of solicitation-related documents.
    4. Comment: FedTeDS functionality will be included in the 
Governmentwide Point of Entry (GPE) FedBizOpps system. This will 
eliminate the need for FedTeDS as a separate system.
    Council's response: The inclusion of FedTeDS functionality in 
FedBizOpps is an optional requirement in the solicitation for 
replacement of FedBizOpps. Once the contract has been awarded, the 
expectations, plans and anticipated deliverable dates for inclusion of 
FedTeDS functionality in FedBizOpps will be known. Until the new 
FedBizOpps system and its FedTeDS-like functionality become 
operational, FedTeDS remains a proven and useful system for 
Governmentwide use.
    5. Comment: The FAR amendment to mandate the use of FedTeDS will 
limit the Government's ability to enhance systems and leverage new 
technologies.
    Council's response: The comment is too vague to adequately address 
the real concern.
    6. Comment: The language proposed for FAR 5.102 is confusing and 
redundant. The language should be changed to be more clear and concise.
    Council's response: We concur that the proposed language for FAR 
5.102 is confusing and contains redundancies. We have revised the 
applicable language accordingly.
    7. Comment: The amendment should contain a definition for 
``sensitive but unclassified information.'' This term is in wide use 
among agencies and may be useful in determining what information should 
be posted on FedTeDS.
    Council's response: The industry terminology for ``sensitive but 
unclassified information'' is changing to unclassified, sensitive 
information. This term is consistent with the Computer Security Act of 
1987, where ``sensitive information'' refers to any information, the 
loss, misuse, or unauthorized access to or modification of which could 
adversely affect the national interest or the conduct of Federal 
programs, but which has not been specifically authorized under criteria 
established by an Executive order or an Act of Congress to be kept 
secret in the interest of national defense or foreign policy. 
Furthermore, the Act states that the head of a Federal agency may 
employ standards for the cost effective security and privacy of 
sensitive information in a Federal computer system within or under the 
supervision of that agency. FedTeds has ``Sensitive but Unclassified'' 
compliance requirements as part of accessing any information in the 
system. The Councils will work with program officials to have the 
terminology reviewed and updated as appropriate.
    8.Comment: The Governmentwide Point of Entry (GPE), not FedTeDS, 
should be used to distribute all solicitation related materials.
    Council's response: Currently, the GPE does not contain the 
functionality needed to control the availability or distribution of 
solicitation-related documents. Until the GPE is upgraded to provide 
the required functionality, FedTeDS will be used to provide the 
required functionality.
    9. Comment: Use of FedTeDS should be made mandatory, not optional. 
Mandatory use will reduce the need for agencies to maintain similar 
websites.
    Council's response: We agree. The use of FedTeDS is being made 
mandatory with a few necessary exceptions. Those exceptions are the 
same used to advertise and distribute solicitations on the GPE.
    10. Comment: The proposed amendment does not cover vendors that are 
exempt from registering in CCR, such as foreign vendors who may be 
interested in work to be performed outside the U.S.
    Council's Response: FedTeDS requires all vendors to be registered 
in CCR and FedTeDS in order to gain access to FedTeDS. Vendors who are 
unable to register, or who are exempt from registration in CCR, may 
contact the contracting officer directly to receive the solicitation-
related documents.
    11. Comment: Are the exceptions at FAR 5.102 meant to address all 
of the exceptions to CCR registration found at FAR 4.1102?
    Council's response: No. FAR 4.1102 addresses exceptions to the 
requirement for prospective vendors to register in CCR. Vendors who are 
excepted from CCR registration under FAR 4.1102 may contact the 
contracting officer directly to obtain the solicitation-related 
documents posted on FedTeDS. The FAR 5.102 exceptions address the 
requirement to post on FedTeDS solicitation-related documents that 
require control over access and distribution as opposed to posting 
those documents on the GPE.
    12. Comment: The use of the MPIN (unique CCR vendor identification) 
for FedTeDS access poses a security risk for vendors. A company may not 
wish to share their MPIN with individual employees because the MPIN is 
also used to access competitively sensitive past performance 
information contained in the Past Performance Information Retrieval 
System (PPIRS) or other Government systems that may require the MPIN 
for access. While individual employees may be assigned individual 
FedTeDS accounts, those individuals may then distribute or otherwise 
handle FedTeDS information in a manner that is inconsistent with 
company policy.
    Council's response: Under both CCR and FedTeDS, only the company 
point

[[Page 20297]]

of contact knows the MPIN. The point of contact uses the MPIN to 
register one or more employees in FedTeDS. Registration consists of 
identifying each employee designated to have FedTeDS access and 
assigning them a unique user identification and password for use in 
accessing FedTeDS. The employees then use their assigned user 
identification and password to log into FedTeDS. Thus, only the company 
point of contact has access to the MPIN.
    13. Comment: Contracting officers may use FedTeDS registration 
inappropriately. In at least one case, oral proposal presenters were 
required to be registered in FedTeDS in order to be assigned an orals 
appointment time. Some solicitations and materials are posted on 
FedTeDS that are in no way sensitive.
    Council's response: The Government may use its discretion in 
determining what needs to be included in any procurement and posted on 
FedBizOpps and in FedTeDS.
    FedTeDS has proved to be a useful tool to control access and 
distribution of solicitation-related documents where control is deemed 
necessary by the Government. Training materials will be developed for 
contracting officers to assure proper use of FedTeDS.
    14. Comment: Granting employees access to FedTeDS using the MPIN 
may inadvertently violate International Traffic in Arms (ITAR) 
regulations by weakening central control over access and distribution 
of export controlled materials.
    Council's response: The Councils share the commenter's concern and 
have revised the proposed rule to address the export control issue. As 
indicated in our response to Comment 12, the company point of contact 
does not have to disclose the company MPIN to other employees to 
register them in FedTeDS. As indicated the company point of contact 
controls which employees receive a user identification and password.
    15. Comment: Once an individual is registered in FedTeDS, they 
start getting notices of other solicitations that are only posted in 
FedTeDS. These employees may download these solicitations and 
distribute or otherwise mishandle them without the company knowing.
    Council's response: This comment is similar to comment 12 and 14. 
Anyone who gains access to FedTeDS information may then redistribute 
that information in an uncontrolled manner. Control of employee 
behavior and potential liability for employee actions is a matter for 
internal company management and concern.
    Therefore, this final rule amends FAR Parts 2, 5 and 7 to require 
contracting officers to provide solicitation-related information that 
requires limited availability or distribution to offerors 
electronically via the FedTeDS system unless certain exceptions apply.
    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 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 the rule does not 
impose any costs on either small or large businesses; therefore, an 
Initial Regulatory Flexibility Analysis has not been performed. We 
invite comments from small businesses and other interested parties. The 
Councils will consider comments from small entities concerning the 
affected FAR Parts 2, 5, and 7 in accordance with 5. U.S.C. 610. 
Interested parties must submit such comments separately and should cite 
5 U.S.C. 601, et seq. (FAC 2005-09, FAR case 2004-007), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

List of Subjects in 48 CFR Parts 2, 5, and 7

    Government procurement.

    Dated: April 12, 2006.
Gerald Zaffos
Director, Contract Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 5, and 7 as set 
forth below:
0
1. The authority citation for 48 CFR parts 2, 5, and 7 continues 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 2--DEFINITION OF WORDS AND TERMS

0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical 
order the definition ``Federal Technical Data Solution (FedTeDS)'' to 
read as follows:


2.101  Definitions.

* * * * *
    (b) * * *
    (2) * * *
    Federal Technical Data Solution (FedTeDS) is a web application 
integrated with the Governmentwide Point of Entry (GPE) and the Central 
Contractor Registration (CCR) system for distribution of information 
related to contract opportunities. It is designed to enhance controls 
on the access and distribution of solicitation requirements or other 
documents when controls are necessary according to agency procedures. 
FedTeDS may be found on the Internet at https://www.fedteds.gov.
* * * * *

PART 5--PUBLICIZING CONTRACT ACTIONS

0
3. Amend section 5.102 by revising paragraph (a)(1); redesignating 
paragraph (a)(4) as (a)(5), and adding new paragraph (a)(4); revising 
newly redesignated (a)(5); and by removing from paragraph (b) 
introductory text ``(a)(4)'' and adding ``(a)(5)'' in its place. The 
revised text reads as follows:


5.102  Availability of solicitations.

    (a)(1) Except as provided in paragraph (a)(5) of this section, the 
contracting officer must make available through the GPE solicitations 
synopsized through the GPE, including specifications, technical data, 
and other pertinent information determined necessary by the contracting 
officer. Transmissions to the GPE must be in accordance with the 
interface description available via the Internet at http://www.fedbizopps.gov.
* * * * *
    (4) When an agency determines that a solicitation contains 
information that requires additional controls to monitor access and 
distribution (e.g., technical data, specifications, maps, building 
designs, schedules, etc.), the information shall be made available 
through the Federal Technical Data Solution (FedTeDS) unless an 
exception in paragraph (a)(5) of this section applies. When FedTeDS is 
used, it shall be used in conjunction with the GPE to meet the synopsis 
and advertising requirements of this part.
    (5) The contracting officer need not make a solicitation available 
through the GPE, or make other information available through FedTeDS as 
required in paragraph (a)(4) of this section, when--
    (i) Disclosure would compromise the national security (e.g., would 
result in

[[Page 20298]]

disclosure of classified information, or information subject to export 
controls) or create other security risks. The fact that access to 
classified matter may be necessary to submit a proposal or perform the 
contract does not, in itself, justify use of this exception;
    (ii) The nature of the file (e.g., size, format) does not make it 
cost-effective or practicable for contracting officers to provide 
access to the solicitation through the GPE;
    (iii) Agency procedures specify that the use of FedTeDS does not 
provide sufficient controls for the information to be made available 
and an alternative means of distributing the information is more 
appropriate; or
    (iv) The agency's senior procurement executive makes a written 
determination that access through the GPE is not in the Government's 
interest.
* * * * *
0
4. Amend section 5.207 by revising paragraph (c)(18) to read as 
follows:


5.207  Preparation and transmittal of synopses.

* * * * *
    (c) * * *
    (18) If the technical data required to respond to the solicitation 
will not be furnished as part of such solicitation, identify the source 
in the Government, such as FedTeDS (https://www.fedteds.gov), from 
which the technical data may be obtained.
* * * * *

PART 7--ACQUISITION PLANNING

0
5. Amend section 7.105 by revising paragraph (b)(15) to read as 
follows:


7.105  Contents of written acquisition plans.

* * * * *
    (b) * * *
    (15) Government-furnished information. Discuss any Government 
information, such as manuals, drawings, and test data, to be provided 
to prospective offerors and contractors. Indicate which information 
that requires additional controls to monitor access and distribution 
(e.g., technical specifications, maps, building designs, schedules, 
etc.), as determined by the agency, is to be posted via the Federal 
Technical Data Solution (FedTeDS) (see 5.102(a)).
* * * * *
[FR Doc. 06-3678 Filed 4-18-06; 8:45 am]
BILLING CODE 6820-EP-S