[Federal Register Volume 72, Number 47 (Monday, March 12, 2007)]
[Proposed Rules]
[Pages 10964-10967]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-1102]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 10, 12, 25

[FAR Case 2006-016; Docket 2007-0001; Sequence 4]
RIN: 9000-AK70


Federal Acquisition Regulation; FAR Case 2006-016, Numbered Notes 
for Synopses

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

ACTION:  Proposed rule with request for comments.

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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 update and clarify policy for 
synopses of proposed contract actions and to delete all references to 
Numbered Notes.

DATES:  Interested parties should submit written comments to the FAR 
Secretariat on or before May 11, 2007 to be considered in the 
formulation of a final rule.

ADDRESSES:  Submit comments identified by FAR case 2006-016 by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for any document by first selecting the proper document types 
and selecting ``Federal Acquisition Regulation'' as the agency of 
choice. At the ``Keyword'' prompt, type in the FAR case number (for 
example, FAR Case 2006-001) and click on the ``Submit'' button. Please 
include any personal and/or business information inside the 
document.You may also search for any document by clicking on the 
``Advanced search/document search'' tab at the top of the screen, 
selecting from the agency field ``Federal Acquisition Regulation'', and 
typing the FAR case number in the keyword field. Select the ``Submit'' 
button.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW., Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2006-
016 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:  Mr. Ernest Woodson, Procurement 
Analyst, at (202) 501-3775 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat at (202) 501-4755. Please cite FAR case 2006-016.

SUPPLEMENTARY INFORMATION:

A. Background

    The use of Numbered Notes originally provided a method to expedite 
publicizing synopses in the Commerce Business Daily (CBD). The data 
transmission for this defunct publication was cumbersome and time-
consuming. The use of Numbered Notes simplified the inclusion of 
repetitive information. In addition, use of these Notes reduces the 
size of the publication (and, therefore, the cost to publish and 
distribute this hardcopy periodical.)
    During the transition period from the CBD periodical for publishing 
synopses to the electronic postings of synopses on the Federal Business 
Opportunities (FedBizOpps) Web site, the Numbered Notes were moved from 
the CBD to FedBizOpps. At the same time, the prescriptions for the 
Numbered Notes were generally deleted from the FAR.
    Electronic posting of synopses allows contracting officers to 
easily insert text, as needed. Electronic posting also places the full 
text of synopses in easy-to-read, stand-alone documents that may be 
individually printed hardcopy or saved as data files by interested 
parties. This differs sharply from the earlier CBD periodical which 
printed a hardcopy of all synopses for a particular day.
    Since the prescriptions for the Numbered Notes were deleted from 
the FAR, the Numbered Notes have not been maintained and many of the 
Numbered Notes do not accurately reflect current FAR requirements or 
have been made obsolete by the functionality of FedBizOpps. Also, 
without prescriptions in the FAR, contracting officers are not required 
to use the Numbered Notes. The content of each Numbered Note and a 
discussion of the Note follows:
    1. The proposed contract is 100 percent set-aside for small 
business concerns.
    Contracting officers identify set-asides via a drop-down box in 
FedBizOpps. Therefore, the Note is redundant.
    2. A portion of the acquisition is set-aside for small business 
concerns.

[[Page 10965]]

    Contracting officers identify set-asides via a drop-down box in 
FedBizOpps. Therefore, the Note is redundant.
    3. The proposed contract is a labor surplus area set-aside. (This 
note is deleted as of 7/21/99.)
    The Note is obsolete.
    4. The proposed contract is 100 percent set aside for small 
disadvantaged business concerns (SDB). Offers from concerns other than 
SDBs will not be considered. (This note is deleted as of 11/24/99.)
    The Note is obsolete.
    5. The proposed contract is 100 percent set-aside for Historically 
Black Colleges and Universities (HBCUs) and Minority Institutions 
(MIs). Offers from other than HBCUs and MIs will not be considered.
    Contracting officers identify set-asides via a drop-down box in 
FedBizOpps. Therefore, the Note is redundant.
    6. The proposed contract is a total small disadvantaged business 
set-aside or is being considered as a total small disadvantaged 
business set-aside. (This note is deleted as of 11/24/99.)
    The Note is obsolete.
    7. The proposed contract is 100 percent set-aside for Historically 
Black Colleges, Universities and Minority Institutions or is partially 
set-aside for Historically Black Colleges, Universities and Minority 
Institutions.
     Contracting officers identify set-asides via a drop-down box in 
FedBizOpps. Therefore, the Note is redundant.
    8. The solicitation document contains information that has been 
designated as ``Militarily Critical Technical Data.'' Only businesses 
that have been certified by the Department of Defense, United States/
Canada Joint Certification Office, and have a valid requirement may 
have a copy of the solicitation document. All requests for copies of 
the solicitation document must include a certified copy of DD Form 
2345, Militarily Critical Technical Data Agreement. To obtain 
certification, contact: Commander, Defense Logistics Information 
Service (DLIS), ATTN: U.S./Canada Joint Certification Office, 74 
Washington Avenue North, Battle Creek, MI 49017-3084 or call the DLIS 
at (800)-352-3572. The DLIS United States/Canada Joint Certification 
Lookup service is available via the Internet at: http://www.dlis.dla.mil/ccal/.
    The requirement is unique to DoD. The FAR does not include a 
reference to Militarily Critical Technical Data. The Office of 
Management and Budget (OMB) Control Number 0704-0207 for the 
information collection requirements associated with DD Form 2345 result 
from Department of Defense Directive Number 5230.25. In addition, the 
link reference in the Note is no longer valid, i.e., http://www.dlis.dla.mil/ccal/. Other information in the Note may also be 
inaccurate. Accordingly, this Note is not useful in the GPE.
    9. Interested parties may obtain copies of Military and Federal 
Specifications and Standards, Qualified Product Lists, Military 
Handbooks, and other standardization documents from the DoD Single 
Stock Point (DODSSP), in Philadelphia, PA. Most documents are available 
in Adobe PDF format from the ASSIST database via the Internet at http://assist.daps.mil/.
    Users may search for documents using the ASSIST-Quick Search and, 
in most cases, download the documents directly via the Internet using 
standard browser software.
    Documents not available for downloading from ASSIST can be ordered 
from the DODSSP using the ASSIST Shopping Wizard, after establishing a 
DODSSP Customer Account by following the registration procedures or by 
phoning the DODSSP Special Assistance Desk at (215) 697-2179 (DSN: 442-
2179).
    Users not having access to the Internet may contact the DODSSP 
Special Assistance Desk at (215) 697-2179 (DSN: 442-2179) or mail 
requests to the DODSSP, Bldg. 4/D, 700 Robbins Avenue, Philadelphia, PA 
19111-5094. Patterns, Drawings, Deviations Lists, Purchase 
Descriptions, etc., are not stocked at the DODSSP.
    The following FAR provisions notify prospective offerors how to 
obtain copies of the various specifications, standards, and data item 
descriptions: FAR 52.211-1, Availability of Specifications Listed in 
the GSA Index of Federal Specifications, Standards, and Commercial Item 
Descriptions; FAR 52.211-2, Availability of Specifications, Standards, 
and Data Item Descriptions Listed in the Acquisition Streamlining and 
Standardization Information System (ASSIST); FAR 52.211-3, Availability 
of Specifications Not Listed in the GSA Index of Federal 
Specifications, Standards, and Commercial Item Descriptions; and FAR 
52.211-4, Availability for Examination of Specifications Not Listed in 
the GSA Index of Federal Specifications, Standards, and Commercial Item 
Descriptions. Additionally, FAR 52.209-1, Qualification Requirements, 
notifies prospective offerors how to obtain the qualification 
requirements for the pending contract. Therefore, the Note appears to 
be redundant. In addition, the link referenced in the Note is no longer 
valid, i.e., http://www.assist.daps.mil. Other information in the Note 
may also be inaccurate.
    10. Reserved.
    11. Reserved.
    12. One or more of the items under this acquisition may be subject 
to an Agreement on Government Procurement approved and implemented in 
the United States by the Trade Agreements Act of 1979. All offers shall 
be in the English language and in U.S. dollars. All interested 
suppliers may submit an offer.
    FAR Subpart 25.4, Trade Agreements, sufficiently addresses the 
procedures. Specifically, FAR 25.408 prescribes FAR provisions: 52.214-
34, Submission of OfferSin the English Language; 52.214-35, Submission 
of Offers in U.S. Currency; and paragraph (c)(5) of 52.215-1, 
Instructions to Offerors--Competitive Acquisitions; contains most of 
the information in the Note. However, the World Trade Organization 
Government Procurement Agreement, and some of the Free Trade 
Agreements, require that a notice must appear in the synopsis that the 
procurement is covered by the Agreement. Therefore, the requirement 
should be included in the FAR.
    13. The proposed contract is restricted to domestic sources under 
the authority of FAR 6.302-3. Accordingly, foreign sources, except 
Canadian sources, are not eligible for award.
    FAR 6.302-3 provides for restrictions to either the ``United States 
or its outlying areas'' or the ``United States, its outlying areas, or 
Canada.'' In addition, acquisitions can be restricted based on other 
factors in 6.302-3. Therefore, it seems inappropriate to only address 
one of the restrictions.
    14. Reserved.
    15. Reserved.
    16. Reserved.
    17. Reserved.
    18. Reserved.
    19. Reserved.
    20. Reserved.
    21. Reserved.
    22. The proposed contract action is for supplies or services for 
which the Government intends to solicit and negotiate with only one 
source under the authority of FAR 6.302. Interested persons may 
identify their interest and capability to respond to the requirement or 
submit proposals. This notice of intent is not a request for 
competitive proposals. However, all proposals received within forty-
five days (thirty days if award is issued under an existing basic 
ordering agreement) after date of publication of this synopsis will be 
considered by the Government. A determination by the Government not to 
compete with this proposed contract based upon responses to this notice 
is solely within the discretion of the

[[Page 10966]]

Government. Information received will normally be considered solely for 
the purpose of determining whether to conduct a competitive 
procurement.
    Since there is no prescription for the Note in the FAR, contracting 
officers might be prescribing different time periods when responses 
will be considered. To ensure a uniform timeframe, the requirement 
should be maintained in the FAR.
    23. Award will be made only if the offeror, the product/service or 
the manufacturer meets qualification requirements at time of award, in 
accordance with FAR clause 52.209-1 or 52.209-2. The solicitation 
identifies the office where additional information can be obtained 
concerning qualification requirements and is cited in each individual 
solicitation.
    FAR 52.209-2 is reserved. FAR 52.209-1, Qualification Requirements, 
notifies prospective offerors how to obtain the requirements that must 
be satisfied to become qualified or to demonstrate their capability. 
Therefore, the Note is redundant.
    24. This acquisition is for architect-engineer (A-E) services, and 
is procured in accordance with the Brooks A-E Act as implemented in FAR 
Subpart 36.6. A-E firms meeting the requirements described in this 
announcement are invited to submit: (1) a Standard Form (SF) 330, 
Architect-Engineer Qualifications, Parts I and II, and (2) any 
requested supplemental data to the procurement office shown. Firms 
registering for consideration for future Federal A-E projects are 
encouraged to electronically submit SF 330 Part II, General 
Qualifications, to http://www.bpn.gov/orca/login.aspx, and to update at 
least annually. Firms with a SF 330 Part II on file in this central 
Federal database do not need to submit a Part II for this acquisition 
unless directed by the announcement. Firms responding to this 
announcement before the closing date will be considered for selection, 
subject to any limitations indicated with respect to size and 
geographic location of firm, specialized technical expertise or other 
requirements listed. Following an evaluation of the qualifications and 
performance data submitted, three or more firms that are considered to 
be the most highly qualified to provide the type of services required 
will be chosen for negotiation. Selection of firms for negotiation 
shall be made in order of preference based on the demonstrated 
competence and qualifications necessary for satisfactory performance in 
accordance with the specific selection criteria listed in the 
announcement.
    To be considered for architect-engineer contracts, a firm must 
file, with the appropriate office or board, the Standard Form (SF) 330, 
Architect-Engineer Qualifications, Part II, and when applicable, SF 
330, Part I (see FAR 36.603(b)). The other information contained in the 
Note is also addressed in FAR 36.603(b). FAR 5.207(c)(12) requires 
contracting officers to include any significant evaluation factors in 
the synopsis. The requirement to have a filed SF 330 is a significant 
evaluation factor and would, therefore, be included in the synopsis. 
Accordingly, the Note is redundant.
    25. Information submitted should be pertinent and specific in the 
technical area under consideration, on each of the following 
qualifications: (1) Experience: An outline of previous projects, 
specific work previously performed or being performed and any in-house 
research and development effort; (2) Personnel: Name, professional 
qualifications and specific experience of scientists, engineers and 
technical personnel who may be assigned as a principal investigator 
and/or project officer; (3) Facilities: Availability and description of 
special facilities required to perform in the technical areas under 
consideration. A statement regarding industry security clearance. Any 
other specific and pertinent information as pertains to this particular 
area of procurement that would enhance our consideration and evaluation 
of the information submitted.
    Contracting officers are required to include the evaluation factors 
in the solicitation. Therefore, the Note is redundant.
    26. Based upon market research, the Government is not using the 
policies contained in Part 12, Acquisition of Commercial Items, in its 
solicitation for the described supplies or services. However, 
interested persons may identify to the contracting officer their 
interest and capability to satisfy the Government's requirement with a 
commercial item within 15 days of this notice.
    Market research is sufficient for identifying commercial solutions. 
Therefore, the Note is unnecessary.
    27. The proposed contract is set-aside for HUBZone small business 
concerns. Offers from other than HUBZone small business concerns will 
not be considered.
    Contracting officers identify set-asides via a drop-down box in 
FedBizOpps. Therefore, the Note is redundant.
    28. The proposed contract is set-aside for Very Small Business 
Concerns (VSB). A VSB is a small business concern whose headquarters is 
located within the geographic area served by a district designated by 
SBA; and which, together with its affiliates, has no more than 15 
employees and has average annual receipts that do not exceed $1 
million. Offers from other than very small business concerns will not 
be considered.
    The VSB program is no longer applicable. Therefore, the Note is 
obsolete.
    29. The proposed contract is set-aside for Service-Disabled 
Veteran-Owned small business concerns. Offers from other than Service-
Disabled Veteran-Owned small business concerns will not be considered.
    Contracting officers identify set-asides via a drop-down box in 
FedBizOpps. Therefore, the Note is redundant.
    This rule proposes to make the following changes to the FAR:
    (a) Require that a ``proposed contract action the Government 
intends to solicit and negotiate with only one source under the 
authority of 6.302'' be subject to the 15-day advance notice publishing 
requirement at FAR 5.203 to establish a minimum time period for which 
the Government will consider proposals from other than an intended 
source.
    (b) Delete the reference to the ``GPO billing account code'' at FAR 
5.207 because the GPO has been replaced by FedBizOpps.
    (c) Delete the reference to an ``opening date'' at FAR 5.207 
because this term is now obsolete. ``Opening date'' was used in the CBD 
periodical when the date of publication for an announcement was 
uncertain. In FedBizOpps, the electronic posting date has replaced the 
opening date.
    (d) Delete the references and coverage on Numbered Notes at FAR 
5.205(a), 5.207(c)(13) and (14), 5.207(e), 10.002(d)(2), 
12.603(c)(2)(xv), and 25.408(a)(2) because the referenced Notes are no 
longer needed.
    (e) Add requirements to the FAR clause at 5.207(c)(13) to identify, 
in the synopsis, acquisitions subject to the trade agreements.
    (f) Revise the ``set-asides'' coverage at FAR 5.207 to include all 
allowable set-asides and delete the reference to ``Numbered Notes'' 
because the type of set-aside is identified in FedBizOpps by selecting 
the appropriate set-aside from a drop-down menu, e.g., partial women-
owned small business concern, total HUBZone small business concern.
    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.

[[Page 10967]]

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to 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 makes no significant change to the policy for the synopses 
of proposed contract actions. An Initial Regulatory Flexibility 
Analysis has, therefore, 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 
5, 10, 12, and 25 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. (FAR case 2006-016), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
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 5, 10, 12, and 25

    Government procurement.

    Dated: March 2, 2007.
Ralph De Stefano
Director, Contract Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 5, 10, 
12, and 25 as set forth below:
    1. The authority citation for 48 CFR parts 5, 10, 12, and 25 
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 5--PUBLICIZING CONTRACT ACTIONS

    2. Amend section 5.203 by revising paragraph (a) introductory text 
to read as follows:


5.203  Publicizing and response time.

* * * * *
    (a) An agency must transmit a notice of proposed contract action to 
the GPE (see 5.201). All publicizing and response times are calculated 
based on the date of publication. The publication date is the date the 
notice appears on the GPE. The notice must be published at least 15 
days before issuance of a solicitation or a proposed contract action 
the Government intends to solicit and negotiate with only one source 
under the authority of 6.302, except that, for acquisitions of 
commercial items, the contracting officer may--
* * * * *


5.205  [Amended]

    3. Amend section 5.205 in the fifth sentence following the 
paragraph heading of paragraph(a) by removing the words ``cite the 
appropriate Numbered Note,''
    4. Amend section 5.207 by--
    a. Removing paragraph (a)(4) and redesignating paragraphs (a)(5) 
through (a)(19) as (a)(4) through (a)(18) respectively;
    b. Revising newly redesignated paragraph (a)(9);
    c. Revising paragraphs (c)(13) and (c)(14);
    d. Revising paragraph (d);
    e. Removing paragraph (e) and redesignating paragraphs (f) and (g) 
as (e) and (f),respectively; and
    f. Revising the newly designated paragraph (f).
    The revised text read as follows:


5.207  Preparation and Transmittal of Synopses.

    (a) * * *
    (9) Closing Response Date.
* * * * *
    (c) * * *
    (13) (i) If the solicitation will include the FAR clause at 52.225-
3, Buy American Act Free Trade Agreements Israeli Trade Act, or an 
equivalent agency clause, insert the following notice in the synopsis: 
``One or more of the items under this acquisition is subject to Free 
Trade Agreements.''
    (ii) If the solicitation will include the FAR clause at 52.225-5, 
Trade Agreements, or an equivalent agency clause, insert the following 
notice in the synopsis: ``One or more of the items under this 
acquisition is subject to the World Trade Organization Government 
Procurement Agreement and Free Trade Agreements.''
    (iii) If the solicitation will include the FAR clause at clause 
52.225-11, Buy American Act-Construction Materials under Trade 
Agreements, or an equivalent agency clause, insert the following notice 
in the synopsis: ``One or more of the items under this acquisition is 
subject to the World Trade Organization Government Procurement 
Agreement and Free Trade Agreements.''
    (14) In the case of noncompetitive contract actions (including 
those that do not exceed the simplified acquisition threshold), 
identify the intended source and insert a statement of the reason 
justifying the lack of competition.
* * * * *
    (d) Set-asides. When the proposed acquisition provides for a total 
or partial small business program set-aside, the contracting officer 
shall identify the type of set-aside in the solicitation.
    (e) * * *
    (f) Cancellation of synopsis. Contracting officers should not 
publish notices of solicitation cancellations (or indefinite 
suspensions) of proposed contract actions in the GPE. Cancellations of 
solicitations must be made in accordance with 14.209 and 14.404-1.

PART 10--MARKET RESEARCH


10.002  [Amended]

    5. Amend section 10.002(d)(2) by removing the parenthetical from 
the end of the second sentence.

PART 12--ACQUISITION OF COMMERCIAL ITEMS


12.603  [Amended]

    6. Amend section 12.603 by removing paragraph (c)(2)(xv) and 
redesignating paragraphs (c)(2)(xvi) and (xvii) as paragraphs 
(c)(2)(xv) and (xvi), respectively.

PART 25--FOREIGN ACQUISITIONS

    7. Amend section 25.408 by revising paragraph (a)(2) to read as 
follows:


25.408  Procedures.

    (a) * * *
    (2) Comply with the requirements of 5.207, Preparation and 
Transmittal of Synopses;
* * * * *
[FR Doc. 07-1102 Filed 3-9-07; 8:45 am]
BILLING CODE 6820-EP-S