[Federal Register Volume 79, Number 78 (Wednesday, April 23, 2014)]
[Proposed Rules]
[Pages 22615-22617]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2014-09231]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4, 14, 15, and 52

[FAR Case 2014-001; Docket No. 2014-0001; Sequence No. 1]
RIN 9000-AM78


Federal Acquisition Regulation; Incorporating Section K in 
Contracts

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

ACTION: Proposed rule.

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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal 
Acquisition Regulation (FAR) to standardize the incorporation by 
reference of representations and certifications in contracts.

DATES: Interested parties should submit written comments to the 
Regulatory Secretariat at one of the addressees shown below on or 
before June 23, 2014 to be considered in the formation of the final 
rule.

ADDRESSES: Submit comments in response to FAR Case 2014-001 by any of 
the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2014-001''. Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2014-001.'' Follow the instructions provided at the ``Comment 
Now'' screen. Please include your name, company name (if any), and 
``FAR Case 2014-001'' on your attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Hada Flowers, 1800 F Street NW., 2nd Floor, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR Case 2014-
001, 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.

[[Page 22616]]


FOR FURTHER INFORMATION CONTACT: Mr. Curtis Glover, Sr., Procurement 
Analyst, at 202-501-1448, for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at 202-501-4755. Please cite FAR Case 2014-001.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA are proposing to revise the language at FAR 
subpart 4.12, Representations and Certifications, and add a new clause 
at FAR 52.204-X to standardize the incorporation by reference of 
representations and certifications in contracts. In the Uniform 
Contract Format, section K is the ``Representations, certifications, 
and other statements of offerors or respondents''. Currently, FAR 
15.204-1 requires incorporation by reference of section K into the 
contract.
    Additionally, the standard contract award forms are inconsistent 
regarding the reference to Section K. Standard Forms (SF) 26 and 33, 
and Optional Form 307 each have a block for the page numbers where 
Section K is located in the contract, whereas, the other solicitation/
award forms (SFs 252, 1442, 1447, and 1449) are silent.
    This case revises the language at FAR subpart 4.12, Representations 
and Certifications, and adds a new clause at FAR 52.204-X to 
standardize the incorporation by reference of representations and 
certifications in contracts regardless of which contract award form is 
used. The commercial items clause 52.212-4 will have a new paragraph 
(v) to cover this issue for commercial items.

II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
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.

III. Regulatory Flexibility Act

    DoD, GSA, and NASA do not expect this 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 only standardizes the incorporation by reference of 
representations and certifications in contracts.
    However, an Initial Regulatory Flexibility Analysis has been 
performed and is summarized as follows:

    The standard process is for the offeror to submit the 
representations and certifications with each proposal to demonstrate 
compliance with a variety of statutes and regulations. The proposed 
rule does not revise, change or impact the existing representations 
and certifications submissions done by small entities; therefore, 
this proposed rule will have no significant impact on a substantial 
number of small entities. There are no recordkeeping, reporting, or 
other compliance requirements associated with the proposed rule. The 
rule does not duplicate, overlap, or conflict with any other Federal 
rules.

    The Regulatory 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 Regulatory Secretariat. DoD, GSA, 
and NASA invite comments from small business concerns and other 
interested parties on the expected impact of this rule on small 
entities.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2014-001), 
in correspondence.

IV. Paperwork Reduction Act

    The proposed rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 4, 14, 15, and 52

    Government procurement.

    Dated: April 17, 2014.
William Clark,
Acting Director, Office of Government-wide Acquisition Policy, Office 
of Acquisition Policy, Office of Government-wide Policy.

    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 4, 14, 
15, and 52 as set forth below:

0
1. The authority citations for 48 CFR part 4, 15, and 52 continue to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 4--ADMINISTRATIVE MATTERS

0
2. Amend section 4.1200 by--
0
a. Removing from the end of paragraph (a) the word ``and'';
0
b. Removing from the end of paragraph (b) the period and adding ``; 
and'' in its place; and
0
c. Adding paragraph (c) to read as follows:


4.1200  Scope.

* * * * *
    (c) Incorporate by reference the contractors' representations and 
certifications in the awarded contract.
0
3. Amend section 4.1201 by adding paragraph (d) to read as follows:


4.1201  Policy.

* * * * *
    (d) The contracting officer shall incorporate the representations 
and certifications by reference in the contract (see 52.204-X, or for 
commercial items see 52.212-4(v)).
0
4. Amend section 4.1202 by--
0
a. Redesignating paragraphs (a) through (bb) as paragraphs (1) through 
(28), respectively;
0
b. Designating the introductory text as paragraph (a); and
0
c. Adding a new paragraph (b) to read as follows:


4.1202  Solicitation provision and contract clause.

* * * * *
    (b) The contracting officer shall insert the clause at 52.204-X, 
Incorporation by Reference of Representations and Certifications, in 
solicitations and contracts.

PART 14--SEALED BIDDING

0
5. The authority citation for part 14 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).

0
6. Amend section 14.201-1 by adding a sentence at the end of paragraph 
(c) to read as follows:


14.201-1  Uniform contract format.

* * * * *
    (c) * * * The representations and certifications are incorporated 
by reference in the contract by using 52.204-X (see 4.1202(b)) or for 
commercial items 52.212-4(v).
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

0
7. Amend section 15.204-1 by revising the last sentence of paragraph 
(b) to read as follows:

[[Page 22617]]

15.204-1  Uniform contract format.

* * * * *
    (b) * * * The representations and certifications shall be 
incorporated by reference in the contract by using 52.204-X (see 
4.1202(b)) or for commercial items 52.212-4(v).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.204-8  [Amended]

0
8. Amend section 42.204-8 by removing from the introductory text 
``4.1202'' and adding ``4.1202(a)'' in its place.
0
9. Add section 52.204-X to read as follows:


52.204-X  Incorporation by Reference of Representations and 
Certifications.

    As prescribed in 4.1202(b), insert the following clause:

Incorporation by Reference of Representations and Certifications (Date)

    The contractor's representations and certifications, including 
those completed electronically via the System for Award Management 
(SAM), are incorporated by reference into the contract.

(End of clause)

0
10. Amend section 52.212-4 by revising the clause heading; and adding 
paragraph (v) to read as follows:


52.212-4  Contract Terms and Conditions--Commercial Items.

* * * * *

Contract Terms and Conditions--Commercial Items (Date)

* * * * *
    (v) Incorporation by reference. The contractor's representations 
and certifications, including those completed electronically via the 
System for Award Management (SAM), are incorporated by reference 
into the contract.
* * * * *

[FR Doc. 2014-09231 Filed 4-22-14; 8:45 am]
BILLING CODE 6820-EP-P