[Federal Register Volume 72, Number 28 (Monday, February 12, 2007)]
[Proposed Rules]
[Pages 6515-6516]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E7-2205]


=======================================================================
-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

Defense Acquisition Regulations System

48 CFR Parts 204, 212, and 252

RIN 0750-AF55


Defense Federal Acquisition Regulation Supplement; DoD 
Representations and Certifications in the Online Representations and 
Certifications Application (DFARS Case 2006-D032)

AGENCY: Defense Acquisition Regulations System, Department of Defense 
(DoD).

ACTION: Proposed rule with request for comments.

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

SUMMARY: DoD is proposing to amend the Defense Federal Acquisition 
Regulation Supplement (DFARS) to address DoD-unique requirements 
relating to the Online Representations and Certifications Application 
(ORCA). ORCA presently includes only representations and certifications 
required by the Federal Acquisition Regulation, but is being revised to 
also include those required by the DFARS.

DATES: Comments on the proposed rule should be submitted in writing to 
the address shown below on or before April 13, 2007, to be considered 
in the formation of the final rule.

ADDRESSES: You may submit comments, identified by DFARS Case 2006-D032, 
using any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Include DFARS Case 2006-D032 in the 
subject line of the message.
     Fax: (703) 602-0350.
     Mail: Defense Acquisition Regulations System, Attn: Ms. 
Felisha Hitt, OUSD (AT&L) DPAP (DARS), IMD 3C132, 3062 Defense 
Pentagon, Washington, DC 20301-3062.
     Hand Delivery/Courier: Defense Acquisition Regulations 
System, Crystal Square 4, Suite 200A, 241 18th Street, Arlington, VA 
22202-3402.
    Comments received generally will be posted without change to http://www.regulations.gov, including any personal information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt, (703) 602-0310.

SUPPLEMENTARY INFORMATION:

A. Background

    Subpart 4.12 of the Federal Acquisition Regulation (FAR) requires 
prospective contractors to complete electronic annual representations 
and certifications in ORCA, in conjunction with required registration 
in the Central Contractor Registration database. ORCA presently 
includes only representations and certifications required by the FAR, 
but is being revised to also include those required by the DFARS. This 
will eliminate the need for offerors to submit the same information to 
various DoD offices in response to individual solicitations.
    Section 204.1202(2) of the proposed rule lists the existing DFARS 
representations and certifications that will be included in ORCA. The 
DFARS representations and certifications implement DoD-unique statutory 
requirements and trade agreements, and contain special requirements 
applicable to the significant number and various types of defense 
contracts and subcontracts performed outside the United States.
    The proposed rule contains a substitute paragraph (c) for use with 
the provision at FAR 52.204-8, Annual Representations and 
Certifications, to permit the inclusion of information relating to both 
the FAR and the DFARS. An offeror must include information in paragraph 
(c) only if changes to the offeror's annual representations and 
certifications apply to a particular solicitation.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD has prepared an initial regulatory flexibility analysis 
consistent with 5 U.S.C. 603. The analysis is summarized as follows:
    The objective of the rule is to provide a centralized location for 
the representation and certification information required by the DFARS, 
thereby eliminating the need for offerors to submit the same 
information to various DoD offices in response to individual 
solicitations. The legal basis for the rule is 41 U.S.C. 421. The rule 
will apply to all entities registered in the Central Contractor 
Registration database. FAR 4.1102 requires that prospective contractors 
be registered in the database before the award of a contract or 
agreement, with certain exceptions. Administrative personnel that have 
general knowledge of the contractor's business should be able to enter 
the required information into the database. The rule is expected to 
have a positive impact on small business concerns by reducing 
administrative burdens.

[[Page 6516]]

    A copy of the analysis may be obtained from the point of contact 
specified herein. DoD invites comments from small businesses and other 
interested parties. DoD also will consider comments from small entities 
concerning the affected DFARS subparts in accordance with 5 U.S.C. 610. 
Such comments should be submitted separately and should cite DFARS Case 
2006-D032.

C. Paperwork Reduction Act

    The information collection requirements of the representations and 
certifications addressed in this proposed rule that require offerors to 
provide specific fill-in information have been approved by the Office 
of Management and Budget under Control Numbers 0704-0229, 0704-0245, 
and 0704-0259. The proposed rule does not impose information collection 
requirements beyond those already required by existing DFARS 
representations and certifications.

List of Subjects in 48 CFR Parts 204, 212, and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

    Therefore, DoD proposes to amend 48 CFR parts 204, 212, and 252 as 
follows:
    1. The authority citation for 48 CFR parts 204, 212, and 252 
continues to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR chapter 1.

PART 204--ADMINISTRATIVE MATTERS

    2. Subpart 204.12 is added to read as follows:

Subpart 204.12--Annual Representations and Certifications


204.1202  Solicitation provision and contract clause.

    When using the provision at FAR 52.204-8, Annual Representations 
and Certifications--
    (1) Use the provision with 252.204-7XXX, Alternate A, Annual 
Representations and Certifications; and
    (2) Do not include the following representations and 
certifications:
    (i) 252.209-7005, Reserve Officer Training Corps and Military 
Recruiting on Campus.
    (ii) 252.212-7000, Offeror Representations and Certifications--
Commercial Items.
    (iii) 252.216-7003, Economic Price Adjustment--Wage Rates or 
Material Prices Controlled by a Foreign Government.
    (iv) 252.225-7000, Buy American Act--Balance of Payments Program 
Certificate.
    (v) 252.225-7020, Trade Agreements Certificate.
    (vi) 252.225-7031, Secondary Arab Boycott of Israel.
    (vii) 252.225-7035, Buy American Act--Free Trade Agreements--
Balance of Payments Program Certificate.
    (viii) 252.225-7042, Authorization to Perform.
    (ix) 252.229-7003, Tax Exemptions (Italy).
    (x) 252.229-7005, Tax Exemptions (Spain).
    (xi) 252.239-7011, Special Construction and Equipment Charges.
    (xii) 252.247-7022, Representation of Extent of Transportation by 
Sea.

PART 212--ACQUISITION OF COMMERCIAL ITEMS

    3. Section 212.301 is amended by adding paragraph (f) introductory 
text to read as follows:


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

    (f) The following additional provisions and clauses apply to DoD 
solicitations and contracts for the acquisition of commercial items. If 
the offeror has completed the provisions listed in paragraph (f)(i) or 
(ii) of this section electronically as part of its annual 
representations and certifications at https://orca.bpn.gov, the 
contracting officer may consider this information instead of requiring 
the offeror to complete these provisions for a particular solicitation.
* * * * *

PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    4. Section 252.204-7XXX is added to read as follows:


252.204-7XXX  Alternate A, Annual Representations and Certifications.

Alternate A, Annual Representations and Certifications (XXX 2007)
    As prescribed in 204.1202, substitute the following paragraph (c) 
for paragraph (c) of the provision at FAR 52.204-8:
    (c) The offeror has completed the annual representations and 
certifications electronically via the Online Representations and 
Certifications Application (ORCA) Web site at https://orca.bpn.gov/. 
After reviewing the ORCA database information, the offeror verifies by 
submission of the offer that the representations and certifications 
currently posted electronically have been entered or updated within the 
last 12 months, are current, accurate, complete, and applicable to this 
solicitation (including the business size standard applicable to the 
NAICS code referenced for this solicitation), as of the date of this 
offer, and are incorporated in this offer by reference (see FAR 
4.1201); except for the changes identified below [offeror to 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 offer.

------------------------------------------------------------------------
  FAR/DFARS  Clause        Title         Date         Change
------------------------------------------------------------------------
                                ............  ............  ............
------------------------------------------------------------------------

    Any changes provided by the offeror are applicable to this 
solicitation only, and do not result in an update to the 
representations and certifications posted on ORCA.

[FR Doc. E7-2205 Filed 2-9-07; 8:45 am]
BILLING CODE 5001-08-P