[Federal Register Volume 73, Number 40 (Thursday, February 28, 2008)]
[Rules and Regulations]
[Pages 10960-10962]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-3379]



[[Page 10960]]

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 6, 10, 12, and 25

[FAC 2005-24; FAR Case 2006-016; Item II; Docket 2008-0001; Sequence 2]
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: Final rule.

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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 update and clarify 
policy for synopses of proposed contract actions and to delete all 
references to Numbered Notes (hereafter referred to as ``Notes'').

DATES: Effective Date: March 31, 2008

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 FAC 2005-24, FAR case 
2006-016.

SUPPLEMENTARY INFORMATION: 

A. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 72 FR 10964, March 12, 2007, requesting comments on 
amending the Federal Acquisition Regulation (FAR) to update and clarify 
policy for synopses of proposed contract actions and to delete all 
references to Notes in the FAR and Federal Business Opportunities 
(FedBizOpps) electronic publication. The comment period closed May 11, 
2007. Four sources submitted comments on the proposed rule. A 
discussion of the comments and the changes made to the rule as a result 
of those comments are provided below:
    Comment A: One commenter noted that the Notes were helpful when the 
buyer fails to provide the required information in the body of the 
synopsis and stated there should be more drop-down boxes to replace the 
Notes in order to get more standardized synopses.
    Response: Drop-down menus are provided only for those information 
elements that are mandatory, regardless of the synopsis action and 
procurement requirement (e.g., classification code, country code, and 
set-aside code) and that are conducive to incorporation in such menus. 
Incorporating all potential information that might be relevant to a 
synopsis into the form of drop-down menus would make the FedBizOpps 
design lengthy, cumbersome and costly to implement and maintain. The 
Councils believe that information formerly contained in the Numbered 
Notes that is valuable to potential offerors should be included in full 
text in the body of the synopsis where it can be fully explained as it 
pertains to the proposed acquisition.
    Comment B: Another commenter recommended additional language in FAR 
5.207 or additional drop-down boxes in FedBizOpps for six specific 
former Notes:

    (1) Note 8: Recommended a drop-down box and language in FAR 
5.207 addressing access to data designated as Militarily Critical 
Technical Data.

    Response: Information similar to that contained in this Note is 
valuable to potential bidders and offerors and should be placed in the 
body of the synopsis. Buying offices that knew previously to include 
this Note will know now to include instructions regarding this 
certification. There is no reference to militarily critical technical 
data in the FAR as this requirement is unique to DoD procurement; 
therefore, language in FAR 5.207 or a drop down menu in FedBizOpps is 
not deemed appropriate.

    (2) Note 12: The commenter noted the proposed rule language to 
be added to FAR 52.207(c)(13) addressing Trade Agreement 
requirements, but also recommended including the suggested notices 
as choices in drop-down boxes in FedBizOpps.

    Response: The proposed FAR 52.207(c)(13) revision provides exact 
language appropriate for inclusion in the body of the synopsis. Use of 
a drop-down menu is not deemed appropriate.

    (3) Note 13: The commenter agreed with deletion of the Note, but 
recommended adding language to FAR 5.207 to require the synopsis to 
address any restrictions on competition.

    Response: This Note referred to restrictions on competition in 
accordance with FAR 6.302-3; however, FAR 5.202(a)(10) provides for an 
exception to publishing a synopsis in that case. Further, restrictions 
on competition for other reasons are already covered at 5.207(c)(14).

    (4) Note 22: The commenter recommended including the language 
from the current Note as a drop-down box selection in FedBizOpps.

    Response: This Note refers to single/sole source intentions 
pursuant to FAR 6.302. Rather than relying on a drop down menu with a 
generic statement and no further explanation, the Councils believe that 
detailed rationale for the lack of competition should be placed in the 
body of the synopsis, as currently required by 5.207(c)(14).

    (5) Note 23: The commenter recommended including the language 
from the current Note (updated as necessary) as a drop-down box 
selection in FedBizOpps.

    Response: Information contained in this Note pertains to 
qualification requirements and should be placed in the body of the 
synopsis, where tailored language can explain the type of qualification 
requirement. Use of a drop-down menu is not deemed appropriate.

    (6) Note 24: The commenter recommended including the language 
from the current Note as a drop-down box selection in FedBizOpps.

    Response: This Note is an extensive discussion of Brooks Act 
requirements regarding architect-engineer offerors. FAR 36.603(b) 
provides guidance to contracting officers on qualification data 
submission requirements, and based upon value to potential offerors, 
appropriate tailored information should be placed in the body of the 
synopsis. Use of a drop-down menu is not deemed appropriate.
    In summary, the purpose of the synopsis is to provide sufficient 
information for prospective respondents to determine their interest and 
capability regarding the pending solicitation. Therefore, information 
contained in the Notes has value to the synopsis. However, since there 
is no longer a need to restrict the content of a synopsis, the updated 
substance of these Notes should, at the discretion of the organization 
and as applicable to the solicitation, be placed in full text in the 
synopsis. No change to the proposed rule is required to satisfy this 
comment.
    Comment C: One commenter questioned why we had retained the 
prohibition at 5.207(g) regarding posting cancellations of synopses or 
solicitations on FedBizOpps. The commenter suggested that the original 
reasons for this prohibition had possibly gone away with the transition 
from the hard copy Commerce Business Daily (CBD) to the electronic 
FedBizOpps and indicated that many contracting officers

[[Page 10961]]

were already violating this prohibition and posting cancellations 
there.
    Response: The Councils agree. Research into the original rationale 
for this prohibition indicates it was part of the overall attempt by 
the Department of Commerce to limit the number and length of 
announcements on the CBD, due to space limitations and the cost of each 
announcement. The CBD format and cost are no longer obstacles, and the 
Department of Commerce indicates it would not be opposed to a change in 
this area. To make it easier for potential bidders and offerors to know 
that a solicitation has been canceled and, thereby, to save the cost 
and time that would go into useless offers without such knowledge, the 
Councils have agreed to new language at FAR 5.207(f) making it 
permissive for contracting officers to post cancellations on 
FedBizOpps.
    Comment D: A final commenter indicated that there is confusion as 
to what is being sought from industry in Note 22, where the Note states 
``Interested parties may identify their interest and capability to 
respond to the requirement or submit proposals'' in response to a sole 
source synopsis. He noted that, at the point in time when the synopsis 
is published, there is no solicitation available, and therefore, using 
the standard FAR definition, a proposal cannot be submitted. He 
suggested clarifying in the final rule that a submission identifying 
interest and capability to submit a proposal would be adequate.
    Response: The Councils agree. In researching pertinent FAR 
sections, we noted that 5.207(c)(15) suggested inserting a statement in 
the synopsis that all responsible sources may submit `` * * * a bid, 
proposal, or quotation which shall be considered by the agency.'' 
Further, 6.302-1(d)(2) currently states only that `` * * * the notices 
required by 5.201 shall have been published and any bids and proposals 
must have been considered.'' These references have been revised to be 
consistent and to allow ``capability statements'' to be added to the 
list of responses from industry.
    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 it makes no significant 
change to the policy for the synopses of proposed contract actions.

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 5, 6, 10, 12, and 25

    Government procurement.

    Dated: February 19, 2008.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 5, 6, 10, 12, and 25 
as set forth below:
0
1. The authority citation for 48 CFR parts 5, 6, 10, 12, and 25 
continue 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

0
2. Amend section 5.203 by revising the last sentence of the 
introductory text of paragraph (a) to read as follows:


5.203  Publicizing and response time.

* * * * *
    (a) * * * 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--
* * * * *

0
3. Amend section 5.205 by revising the fifth sentence following the 
paragraph heading of paragraph (a) to read as follows:


5.205  Special situations.

    (a) * * * Advanced notices must be entitled ``Research and 
Development Sources Sought'' and include the name and telephone number 
of the contracting officer or other contracting activity official from 
whom technical details of the project can be obtained. * * *
* * * * *

0
4. Amend section 5.207 by--
0
a. Removing paragraph (a)(4) and redesignating paragraphs (a)(5) 
through (a)(19) as (a)(4) through (a)(18) respectively;
0
b. Revising the newly redesignated paragraph (a)(9);
0
c. Revising paragraphs (c)(13), (c)(14), (c)(15), and (d);
0
d. Removing paragraph (e), and redesignating paragraphs (f) and (g) as 
(e) and (f), respectively; and
0
e. Revising the newly redesignated paragraph (f).
    The revised text reads 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 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.
    (15)(i) Except when using the sole source authority at 6.302-1, 
insert a statement that all responsible sources may submit a bid, 
proposal, or quotation which shall be considered by the agency.
    (ii) When using the sole source authority at 6.302-1, insert a 
statement that all responsible sources may submit a capability 
statement, proposal, or quotation, which shall be considered by the 
agency.
* * * * *
    (d) Set-asides. When the proposed acquisition provides for a total 
or partial small business program set-aside, or when the proposed 
acquisition provides

[[Page 10962]]

for a local area set-aside (see Subpart 26.2), the contracting officer 
shall identify the type of set-aside in the synopsis and in the 
solicitation.
* * * * *
    (f) Notice of solicitation cancellation. Contracting officers may 
publish notices of solicitation cancellations (or indefinite 
suspensions) of proposed contract actions in the GPE.

PART 6--COMPETITION REQUIREMENTS

0
5. Amend section 6.302-1 by revising paragraph (d)(2) to read as 
follows:


6.302-1  Only one responsible source and no other supplies or services 
will satisfy agency requirements.

* * * * *
    (d) * * *
    (2) For contracts awarded using this authority, the notices 
required by 5.201 shall have been published and any bids, proposals, 
quotations, or capability statements must have been considered.

PART 10--MARKET RESEARCH


10.002  [Amended]

0
6. Amend section 10.002 in paragraph (d)(2) by removing ``(see 
5.207(e))''.

PART 12--ACQUISITION OF COMMERCIAL ITEMS


12.603  [Amended]

0
7. Amend section 12.603 by removing paragraph (c)(2) (xv), and 
redesignating paragraphs (c)(2)(xvi) and (c)(2) (xvii) as paragraphs 
(c)(2)(xv) and (c)(2)(xvi), respectively.

PART 25--FOREIGN ACQUISITION

0
8. 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. E8-3379 Filed 2-27-08; 8:45 am]
BILLING CODE 6820-EP-P