[Federal Register: January 27, 2004 (Volume 69, Number 17)]
[Proposed Rules]
[Page 4011-4015]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr27ja04-23]
[[Page 4011]]
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Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Parts 12, 14, 15, and 52
Federal Acquisition Regulation; Electronic Representations and
Certifications; Proposed Rule
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 12, 14, 15, and 52
[FAR Case 2002-024]
RIN 9000-AJ80
Federal Acquisition Regulation; Electronic Representations and
Certifications
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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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 require offerors to submit
representations and certifications electronically via the Business
Partner Network (BPN), unless certain exceptions apply. The BPN is a
grouping of systems that follow vendor data. Online Representations and
Certifications Application (ORCA) is one application on the BPN to
replace the paper based Representations and Certifications (Reps and
Certs) process.
DATES: Interested parties should submit comments in writing on or
before March 29, 2004, to be considered in the formulation of a final
rule.
ADDRESSES: Submit written comments to--General Services Administration,
FAR Secretariat (MVA), 1800 F Street, NW., Room 4035, ATTN: Laurie
Duarte, Washington, DC 20405.
Submit electronic comments via the Internet to- farcase.2002-024@gsa.gov
Please submit comments only and cite FAR case 2002-024 in all
correspondence related to this case.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Ms. Jeritta Parnell, Procurement
Analyst, at (202) 501-4082. Please cite FAR case 2002-024.
SUPPLEMENTARY INFORMATION:
A. Background
Under current FAR regulations, offerors are required, for each
solicitation issued, to complete certain provisions that require
representations and certifications. One of the e-Government Integrated
Acquisition Environment's (IAE) initiatives is to eliminate the
administrative burden on offerors who must submit the same information
to various contracting offices. Representations and certifications that
are completed on-line can then be accessed by procurement offices
across the Federal government. As part of this process, the software
will use certain information that a contractor has already provided in
the Central Contractor Registration (CCR) database. Therefore, this
requirement only applies to offerors that also are required to register
in the CCR database. FAC 16 published in the Federal Register at 68 FR
56668, October 1, 2003, mandates FAR Case 2002-018, Central Contractor
Registration, as a requirement to contractors doing business with
executive agencies. Implementation of the CCR rule should be
accomplished by December 2003.
This proposed rule amends FAR parts 12, 14, 15, and 52 to require
offerors to--
(1) Provide representations and certifications electronically via
the BPN Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bpn.gov;
(2) Update the representations and certifications as necessary, but
at least annually to ensure they are kept current, accurate, and
complete; and
(3) Make changes that affect only one solicitation by completing
the appropriate section of certain solicitation provisions.
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 changes may 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 the FAR requires small
businesses to provide representations and certifications for individual
solicitations. However, FAR 15.209(g) and FAR 14.213 do permit annual
submissions if authorized by individual agencies. This rule will
establish a requirement for annual submissions by electronic means.
An Initial Regulatory Flexibility Analysis (IRFA) has been prepared
and will be provided to the Chief Counsel for Advocacy for the Small
Business Administration. The analysis is summarized as follows:
The FAR requires small businesses to provide representations and
certifications for individual solicitations. However, FAR 15.209(g)
and FAR 14.213 do permit annual submissions if authorized by
individual agencies. This rule will establish a requirement for
annual submissions by electronic means.
In an effort to broaden use and reliance upon e-business
applications, the Civilian Agency Acquisition Council and the
Defense Acquisition Regulations Council are working with the Office
of Federal Procurement Policy to eliminate the need to maintain
paper-based sources of contractor information. The objective of this
rule is to eliminate the need for offerors to submit the same
information (i.e., representations and certifications) to different
Government contracting offices. By the offerors providing this
information to a centralized location, it is anticipated that this
rule will have a significant positive impact on small businesses by
reducing their overall administrative burden.
The rule will apply to small business offerors that also are
required to register in the Central Contractor Registration (CCR)
database. The reason for the link with CCR is that, as part of the
on-line representations and certifications process, the software
will use information that an offeror has already provided into the
CCR database. The offeror will provide the additional information
needed. Therefore, small businesses that are exempted from
registering in the CCR database are also exempted from submitting
representations and certifications electronically.
Based on Governmentwide data, approximately, 20,825 small
businesses were awarded contracts of $25,000 or more in fiscal year
2002. It is estimated that a majority of them will be subject to the
rule. Many of these businesses are already among the over 240,000
registrants in CCR.
Administrative or financial personnel that have general
knowledge of the contractor's business are able to register by
providing the pertinent information into the BPN Web site.
The proposed rule when finalized will not duplicate, overlap, or
conflict with any other Federal rules.
There are no significant practical alternatives that will
accomplish the objective of this rule. Continued reliance on a
paper-based system would unnecessarily promote inefficiency
associated with paper-based processes. The successful phase-in of
CCR by the Department of Defense demonstrates that the Federal
contracting community, including small businesses, is successfully
transitioning to greater use of electronic tools and their
associated efficiencies to conduct business.
The FAR 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 FAR Secretariat. The Councils will
consider comments from small entities concerning the affected FAR parts
12, 14, 15, and 52 in accordance with 5 U.S.C. 610. Comments must be
submitted separately and should cite 5 U.S.C 601, et seq. (FAR case
2002-024), in correspondence.
[[Page 4013]]
C. Paperwork Reduction Act
The Paperwork Reduction Act (Pub. L. 104-13) applies because the
proposed rule contains information collection requirements. The rule
requires offerors to--
(1) Provide representations and certifications electronically via
the BPN Web site;
(2) Update the representations and certifications as necessary, but
at least annually to ensure they are kept current, accurate, and
complete; and
(3) Make changes that affect only one solicitation by completing
the appropriate section of certain solicitations.
The requirement to submit certain representations and
certifications on line--
(a) Eliminates the administrative burden for the offeror of
submitting the same information to various contracting offices; and
(b) Allows access by procurement offices across the Federal
Government.
Individual FAR clearances are assigned to the majority of the
representations and certifications listed in the rule. Four of the
representations and certifications are managed under other agencies'
clearances. The FAR clearances impacted by this rule are 9000-0018,
9000-0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-
0139, 9000-0024, 9000-0130, 9000-0025, and 9000-0090. The clearance
associated with another agency is 1215-0072. It is a DoL clearance.
The above FAR clearances have been revised to reflect a
``percentage of responses submitted electronically'' of 75%, which in
turn decreases the total annual hours associated with each burden. In
accordance with (b)(1)(iv) of section 1320.3, Definitions, of 5 CFR
1320.3(b)(1)(iv), the definition of Burden includes ``* * * developing,
acquiring, installing, and utilizing technology and systems for the
purpose of disclosing and providing information * * *''. As a result,
the subject FAR clearances have been revised to show a total decrease
of 35% in burden hours associated with the proposed rule's
requirements. The ``total annual hours'' of the subject FAR clearances
have been revised as shown:
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Actual %
Previous Revised Previous ``% of of burden Revised ``% of
OMB clearance ``total ``total responses reduced responses
annual annual collected (total of collected
hours'' hours'' electronically'' 35%) electronically''
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9000-0018............................... 12850 8352 0 35 75
9000-0097............................... 300000 195000 0 35 75
9000-0094............................... 91667 59584 0 35 75
9000-0047............................... 77810 50577 0 35 75
9000-0150............................... 383007 268102 5 30 75
9000-0155............................... 250 162 0 35 75
9000-0134............................... 32175 20914 0 35 75
9000-0139............................... 83744 58621 5 30 75
9000-0024............................... 9785 6361 0 35 75
9000-0130............................... 952 666 5 30 75
9000-0025............................... 1904 1238 0 35 75
9000-0090............................... 29970 19480 0 35 75
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D. Request for Comments Regarding Paperwork Burden
Submit comments, including suggestions for reducing this burden,
not later than March 29, 2004, to: FAR Desk Officer, OMB, Room 10102,
NEOB, Washington, DC 20503, and a copy to the General Services
Administration, FAR Secretariat (MVA), 1800 F Street, NW., Room 4035,
Washington, DC 20405. Please cite OMB Control Numbers 9000-0018, 9000-
0097, 9000-0094, 9000-0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139,
9000-0024, 9000-0130, 9000-0025, and 9000-0090, Electronic
Representations and Certifications.
Public comments are particularly invited on: whether this
collection of information is necessary for the proper performance of
functions of the FAR, and will have practical utility; whether our
estimate of the public burden of this collection of information is
accurate, and based on valid assumptions and methodology; ways to
enhance the quality, utility, and clarity of the information to be
collected; and ways in which we can minimize the burden of the
collection of information on those who are to respond, through the use
of appropriate technological collection techniques or other forms of
information technology.
Requester may obtain a copy of the information collection
package(s) from the General Services Administration, FAR Secretariat
(MVA), Room 4035, Washington, DC 20405, telephone (202) 501-4755.
Please cite OMB Control Numbers 9000-0018, 9000-0097, 9000-0094, 9000-
0047, 9000-0150, 9000-0155, 9000-0134, 9000-0139, 9000-0024, 9000-0130,
9000-0025, and 9000-0090, Electronic Representations and
Certifications, in all correspondence.
List of Subjects in 48 CFR Parts 12, 14, 15, and 52
Government procurement.
Dated: January 20, 2004.
Laura Auletta,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 12, 14,
15, and 52 as set forth below:
1. The authority citation for 48 CFR parts 12, 14, 15, and 52 are
revised 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 12--ACQUISITION OF COMMERCIAL ITEMS
2. Amend section 12.301 by adding a sentence after the second
sentence in paragraph (b)(1) to read as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(b) * * * Use the provision with its Alternate I in solicitations
when an exception to Central Contractor Registration at FAR 4.1102(a)
applies. * * *
* * * * *
PART 14--SEALED BIDDING
3. Amend section 14.201-5 by revising paragraph (a) to read as
follows:
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14.201-5 Part IV--Representations and instructions.
* * * * *
(a) Section K, Representations, certifications, and other
statements of bidders. (1) Include in this section those solicitation
provisions that require representations, certifications, or the
submission of other information by bidders.
(2) FAR clause 52.214-30, Annual Representations and
Certifications--Sealed Bidding, shall be included in the solicitation
to permit electronic submission of certain representations and
certification under the circumstances prescribed at 14.201-6(u).
* * * * *
4. Amend section 14.201-6 by revising paragraph (u) to read as
follows:
14.201-6 Solicitation provisions.
* * * * *
(u) Insert the provision at 52.214-30, Annual Representations and
Certifications--Sealed Bidding, in invitations for bids that contain
the clause at 52.204-7, Central Contractor Registration (see 14.213).
* * * * *
5. Revise section 14.213 to read as follows:
14.213 Annual submission of representations and certification.
(a) Offerors shall submit electronic annual representations and
certifications via the Business Partner Network (BPN) at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bpn.gov
in conjunction with registration in the Central Contractor
Registration database unless an exception listed at FAR 4.1102(a)
applies.
Offerors shall update the representations and certifications as
necessary, but at least annually to ensure they are kept current,
accurate, and complete. The representations and certifications are
effective until one year from date of submission or update.
(b) If FAR clause 52.214-30 is included in the solicitation, do not
include the following representations and certifications in the
solicitation:
(1) 52.203-2, Certificate of Independent Price Determination.
(2) 52.203-11, Certification and Disclosure Regarding Payments to
Influence Certain Transactions.
(3) 52.204-3, Taxpayer Identification.
(4) 52.204-5, Women-Owned Business (Other Than Small Business).
(5) 52.209-5, Certification Regarding Debarment, Suspension,
Proposed Debarment, and Other Responsibility Matters.
(6) 52.214-14, Place of Performance Sealed Bidding.
(7) 52.215-6, Place of Performance.
(8) 52.219-1, Small Business Program Representations (Basic &
Alternate I).
(9) 52.219-2, Equal Low Bids.
(10) 52.219-19, Small Business Concern Representation for the Small
Business Competitiveness Demonstration Program.
(11) 52.219-21, Small Business Size Representation for Targeted
Industry Categories Under the Small Business Competitiveness
Demonstration Program.
(12) 52.219-22, Small Disadvantaged Business Status (Basic &
Alternate I).
(13) 52.222-18, Certification Regarding Knowledge of Child Labor
for Listed End Products.
(14) 52.222-22, Previous Contracts and Compliance Reports.
(15) 52.222-25, Affirmative Action Compliance.
(16) 52.222-48, Exemption from Application of Service Contract Act
Provisions for Contracts for Maintenance, Calibration, and/or Repair of
Certain Information Technology, Scientific and Medical and/or Office
and Business Equipment Contractor Certification.
(17) 52.223-4, Recovered Material Certification.
(18) 52.223-9, Estimate of Percentage of Recovered Material Content
for EPA-Designated Products (Alternate I only).
(19) 52.223-13, Certification of Toxic Chemical Release Reporting.
(20) 52.225-2, Buy American Act Certificate.
(21) 52.225-4, Buy American Act, North American Free Trade
Agreement--Israeli Trade Act Certificate (Basic, Alternate I & II).
(22) 52.225-6, Trade Agreements Certificate.
(23) 52.226-2, Historically Black College or University and
Minority Institution Representation.
(24) 52.227-6, Royalty Information (Basic & Alternate I).
(25) 52.227-15--Representation of Limited Rights Data and
Restricted Computer Software.
(c) Offerors that have submitted annual representations and
certifications shall complete the appropriate section of the provision
at 52.214-30, Annual Representations and Certifications Sealed Bidding
to--
(1) Affirm in their bids that the representations and
certifications they have posted to the BPN are current for the purposes
of the solicitation; or
(2) Make changes that affect only one solicitation.
PART 15--CONTRACTING BY NEGOTIATION
6. Amend section 15.204-5 by revising paragraph (a) to read as
follows:
15.204-5 Part IV--Representations and Instructions.
* * * * *
(a) Section K, Representations, certifications, and other
statements of offerors. (1) Include in this section those solicitation
provisions that require representations, certifications, or the
submission of other information by offerors.
(2) FAR clause 52.215-7, Annual Representations and Certifications-
-Negotiation, shall be included in the solicitation to permit
electronic submission of certain representations and certifications via
the BPN at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bpn.gov in conjunction with registration in the
Central Contractor Registration database under the circumstances
prescribed at 15.209(g)(1).
* * * * *
7. In section 15.209 revise paragraph (g) to read as follows:
15.209 Solicitation provisions and contract clauses.
* * * * *
(g)(1) Insert the provision at 52.215-7, Annual Representations and
Certifications--Negotiation, in solicitations that contain the clause
at FAR 52.204-7, Central Contractor Registration (see 14.213).
(2) If the provision at 52.215-7 is included in the solicitation,
do not include the representations and certifications at 14.213(b) in
the solicitation.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
8. Amend section 52.212-1 by revising the date of the provision and
paragraph (b)(8); and adding Alternate I to read as follows:
52.212-1 Instructions to Offerors Commercial Items.
* * * * *
Instructions to Offerors--Commercial Items (Date)
* * * * *
(b) Submission of offers. * * *
(8) A completed copy of the representations and certifications
at FAR 52.212-3 (see FAR 52.212-3(j)) for those representations and
certifications that the offeror shall complete electronically);
* * * * *
(End of provision)
Alternate I (Date). As prescribed in 12.301(b)(1), substitute
the following paragraph (b)(8) for paragraph (b)(8) of the basic
provision:
(8) A completed written copy of the representations and
certifications at FAR 52.212-3 excluding paragraph (j).
[[Page 4015]]
9. Amend section 52.212-3 by revising the date of the provision;
adding an introductory paragraph; and revising paragraph (j) to read as
follows:
52.212-3 Offeror Representations and Certifications.
Commercial Items.
* * * * *
Offeror Representations and Certifications--Commercial Items (Date)
An offeror shall complete only paragraph (j) of this provision
if the offeror has completed the annual representations and
certifications electronically via the Business Partner Network (BPN)
(but see paragraph (j)(2)). If an offeror has not completed the
annual representations and certifications electronically via the
BPN, the offeror shall complete only paragraphs (b) through (i) of
this provision.
* * * * *
(j) Annual Representations and Certifications [Do not complete
if solicitation includes 52.212-1, Alternate I. Any changes provided
by the offeror in (j)(2) of this provision do not automatically
change the representations and certifications posted on the BPN].
The offeror has completed the annual representations and
certifications electronically via the BPN Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bpn.gov.
After reviewing the BPN database information, the
offeror verifies that the representations and certifications
currently posted electronically at FAR 52.212-3, Offeror
Representations and Certifications--Commercial Items [check the
appropriate block]:
[ ] (1) Are current, accurate, and complete as of the date of
this offer and are incorporated in this offer by reference.
[ ] (2) Are current, accurate, and complete as of the date of
this offer and are incorporated in this offer by reference, except
for paragraphs --------------------.
[Identify the applicable paragraphs at (b) through (i) of this
provision that the offeror has completed for the purposes of this
solicitation only.]
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.
(End of provision)
* * * * *
10. Revise section 52.214-30 to read as follows:
52.214-30 Annual Representations and Certification--Sealed Bidding.
As prescribed in 14.201-6(u), insert the following provision:
Annual Representations and Certifications--Sealed Bidding (Date)
The bidder has completed the annual representations and
certifications electronically via the Business Partner Network (BPN)
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bpn.gov. After reviewing the BPN database
information, the bidder verifies that the representations and
certifications currently posted electronically [check the
appropriate block]:
[ ] (a) Are current, accurate, and complete as of the date of
this offer and are incorporated in this bid by reference (see FAR
14.213(b)).
[ ] (b) Are current, accurate and complete as of the date of
this bid and are incorporated in this bid by reference, except for
the changes identified below [insert changes, identifying change by
clause number, title, date].
These amended representation(s) and/or certification(s) are also
incorporated in this bid and are current, accurate, and complete as
of the date of this bid.
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Far clause no. Title Date Change
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Any changes provided by the bidder do not automatically update
the representations and certifications posted on the BPN.
(End of provision)
11. Revise section 52.215-7 to read as follows:
52.215-7 Annual Representations and Certifications Negotiation.
As prescribed in 15.209(g), insert the following provision:
Annual Representations and Certifications--Negotiation (Date)
The offeror has completed the annual representations and
certifications electronically via the Business Partner Network (BPN)
Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.bpn.gov. After reviewing the BPN database
information, the offeror verifies that the representations and
certifications currently posted electronically [check the
appropriate block]:
[ ] (a) Are current, accurate, and complete as of the date of
this offer and are incorporated in this offer by reference (see FAR
14.2113(b)).
[ ] (b) Are current, accurate, and complete as of the date of
this proposal and are incorporated in this offer by reference,
except for the changes identified below [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 proposal.
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Far clause No. Title Date Change
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Any changes provided by the offeror do not automatically update
the representations and certifications posted on the BPN.
(End of provision)
[FR Doc. 04-1512 Filed 1-26-04; 8:45 am]
BILLING CODE 6820-EP-P