[Federal Register: February 8, 2002 (Volume 67, Number 27)]
[Rules and Regulations]
[Page 6113-6114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr08fe02-15]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 14, and 32
[FAC 2001-04; FAR Case 2000-404;
Item I]
RIN 9000-AI81
Federal Acquisition Regulation; Definitions for Classified
Acquisitions
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 to amend the
Federal Acquisition Regulation (FAR) to provide consistent definitions
for classified acquisitions.
DATES: Effective Date: February 20, 2002.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph DeStefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 2001-04, FAR case 2000-404.
SUPPLEMENTARY INFORMATION:
A. Background
This rule amends the FAR to address perceived inconsistencies in
definitions that are used for classified acquisitions. The rule moves
the definitions of ``classified acquisition,'' ``classified contract,''
and ``classified information'' from FAR 4.401 to FAR 2.101, because the
definitions apply to more than one FAR part. Those definitions also
have been amended for clarity. The definition of ``classified
information'' has been further amended to reflect classification of
privately generated restricted data in accordance with Department of
Energy regulations at 10 CFR 1045.21. The rule also amends the policy
regarding bid openings for classified acquisitions at FAR 14.402-2 for
clarity.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 65 FR 46558, July 28, 2000. Four respondents submitted
comments on the proposed rule. The Councils considered all comments in
the development of the final rule. The following issues merit noting:
Comment: Expand the definition of ``classified
information'' at FAR 2.101 to include privately generated Restricted
Data, which is established under the Atomic Energy Act of 1954, as
amended, and implemented in 10 CFR 1045.21. Response: Accepted.
Comment: Amend the ``classified contract'' definition at
FAR 2.101 to address only situations where the contract itself is
classified and add a new ``contracts involving access to classified''
definition at FAR 2.101. Commentor believed that the suggested change
was more in keeping with a ``plain language'' philosophy. Response: Not
accepted. The suggested change does not conform to the way the terms
are used in the FAR.
Comment: The rule at FAR 14.402-2 states ``the contracting
officer must not make a public record of the bids or the bid prices.''
The language is too narrow because it only restricts the contracting
officer from making a public record. Response: Accepted. The current
FAR language will be retained in lieu of the language in the proposed
rule. Keeping the present FAR language addresses the person opening the
bids.
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, while we have made
changes for clarity, we
[[Page 6114]]
have not substantively changed procedures for award and administration
of contracts.
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, 4, 14, and 32
Government procurement.
Dated: February 1, 2002.
Al Matera,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 14, and 32
as set forth below:
1. The authority citation for 48 CFR parts 2, 4, 14, and 32
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 2--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 by adding, in alphabetical order, the
definitions ``classified acquisition,'' ``classified contract,'' and
``classified information'' to read as follows:
2.101 Definitions.
* * * * *
Classified acquisition means an acquisition in which offerors must
have access to classified information to properly submit an offer or
quotation, to understand the performance requirements, or to perform
the contract.
Classified contract means any contract in which the contractor or
its employees must have access to classified information during
contract performance. A contract may be a classified contract even
though the contract document itself is unclassified.
Classified information means any knowledge that can be communicated
or any documentary material, regardless of its physical form or
characteristics, that--
(1)(i) Is owned by, is produced by or for, or is under the control
of the United States Government; or
(ii) Has been classified by the Department of Energy as privately
generated restricted data following the procedures in 10 CFR 1045.21;
and
(2) Must be protected against unauthorized disclosure according to
Executive Order 12958, Classified National Security Information, April
17, 1995, or classified in accordance with the Atomic Energy Act of
1954.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
4.401 [Reserved]
3. Section 4.401 is removed and reserved.
PART 14--SEALED BIDDING
14.103-1 [Amended]
4. Amend section 14.103-1 in paragraph (c) by removing ``(see
4.401)''.
5. Revise section 14.402-2 to read as follows:
14.402-2 Classified bids.
The general public may not attend bid openings for classified
acquisitions. A bidder or its representative may attend and record the
results if the individual has the appropriate security clearance. The
contracting officer also may make the bids available at a later time to
properly cleared individuals who represent bidders. No public record
shall be made of bids or bid prices received in response to classified
invitations for bids.
PART 32--CONTRACT FINANCING
32.1103 [Amended]
6. Amend section 32.1103 in paragraph (d) by removing ``(see
4.401)''.
[FR Doc. 02-2913 Filed 2-7-02; 8:45 am]
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