[Federal Register: June 18, 2004 (Volume 69, Number 117)]
[Rules and Regulations]
[Page 34223-34226]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr18jn04-23]
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Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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48 CFR Chapter 1
Federal Acquisition Regulations; Final Rules
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
Federal Acquisition Circular 2001-24; Introduction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final and interim rules.
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SUMMARY: This document summarizes the Federal Acquisition Regulation
(FAR) rules agreed to by the Civilian Agency Acquisition Council and
the Defense Acquisition Regulations Council in this Federal Acquisition
Circular (FAC) 2001-24. A companion document, the Small Entity
Compliance Guide (SECG), follows this FAC. The FAC, including the SECG,
is available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov/far.
DATES: For effective dates and comment dates, see separate documents
which follow.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, at (202) 501-
4755, for information pertaining to status or publication schedules.
For clarification of content, contact the analyst whose name appears in
the table below in relation to each FAR case or subject area. Please
cite FAC 2001-24 and specific FAR case number(s). Interested parties
may also visit our Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.acqnet.gov/far.
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Item Subject FAR case Analyst
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I....................................... Incentives for Use of 2004-004 Wise.
Performance-Based Contracting
for Services (Interim).
II...................................... Definitions Clause............. 2002-013 Parnell.
III..................................... Procurement Lists.............. 2003-013 Nelson.
IV...................................... Determining Official for 2004-009 Goral.
Employment Provision
Compliance--Immigration and
Nationality Act (INA).
V....................................... Federal Supply Schedules 1999-603 Nelson.
Services and Blanket Purchase
Agreements (BPAs).
VI...................................... Designated Countries--New 2004-008 Davis.
European Communities Member
States.
VII..................................... Buy American Act--Nonavailable 2003-007 Davis.
Articles.
VIII.................................... Application of Cost Principles 2002-006 Loeb.
and Procedures and Accounting
for Unallowable Costs.
IX...................................... Gains and Losses, Maintenance 2002-008 Loeb.
and Repair Costs, and Material
Costs.
X....................................... Technical Amendments...........
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SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the
actual revisions and/or amendments to these FAR cases, refer to the
specific item number and subject set forth in the documents following
these item summaries.
FAC 2001-24 amends the FAR as specified below:
Item I--Incentives for Use of Performance-Based Contracting for
Services (Interim) (FAR Case 2004-004)
This interim rule amends the FAR to implement Sections 1431 and
1433 of the National Defense Authorization Act for Fiscal Year 2004
(Pub. L. 108-136). Section 1431 enacts Governmentwide authority to
treat performance-based contracts or task orders for services as
commercial items if certain conditions are met, and requires agencies
to report on performance-based contracts or task orders awarded using
this authority. Section 1433 amends the definition of commercial item
to add specific performance-based terminology and to conform to the
language added by Section 1431. Contracting officers will be able to
use FAR Part 12, Acquisition of Commercial Items, and Subpart 37.6,
Performance-Based Contracting, for non-commercial services and treat
these services as commercial services when specific conditions are met.
Agencies will be required to report on performance-based contracts or
task orders awarded using this authority.
Item II--Definitions Clause (FAR Case 2002-013)
This final rule revises FAR 2.201 and the clause at 52.202-1 to
clarify the applicability of FAR definitions to solicitation provisions
and contract clauses. The list of definitions in 52.202-1 is removed
and replaced with policy stating that when a solicitation provision or
contract clause uses a word or term that is defined in the FAR, the
word or term has the meaning given in FAR 2.101 at the time the
solicitation was issued. Certain exceptions to this policy are listed
in FAR 52.202-1.
Item III--Procurement Lists (FAR Case 2003-013)
This final rule amends the FAR to clarify that the Javits-Wagner
O'Day (JWOD) program becomes a mandatory source of supplies and
services when the supplies or services have been added to the
Procurement List maintained by the Committee for Purchase from People
Who Are Blind or Severely Disabled.
Item IV--Determining Official for Employment Provision Compliance--
Immigration and Nationality Act (INA) (FAR Case 2004-009)
This final rule amends FAR 9.406-2(b)(2) by revising the
responsibility for determining when a contractor is not in compliance
with the Immigration and Nationality Act (INA) to include both the
Attorney General of the United States and the Secretary of Homeland
Security.
This rule implements Executive Order 13286 published March 5, 2003,
which amended Section 4 of Executive Order 12989 published February 15,
1996.
Debarring officials may now debar a contractor based on a
determination by the Secretary of Homeland Security or the Attorney
General of the United States.
Item V--Federal Supply Schedules Services and Blanket Purchase
Agreements (BPAs) (FAR Case 1999-603)
This final rule amends the FAR in order to incorporate policies and
procedures for services under Federal Supply Schedules. The rule--
Adds a definitions section;
Adds information regarding the Department of Veterans
Affairs delegated authority to establish medical supply schedules;
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Adds language to clarify the differences between an
Authorized Federal Supply Schedules (FSS) Pricelist and a FSS
publication;
Adds additional information regarding e-buy, GSA's
electronic quote system for the schedules program;
Clarifies that competition shall not be sought outside the
Federal Supply Schedules;
Adds language to make it clear that the contracting
officer placing an order on another agency's behalf is responsible for
applying that agency's regulatory and statutory requirements; and that
the requiring activity is required to provide information on the
applicable regulatory and statutory requirements to the contracting
officer;
Adds new coverage on use of statements of work when
acquiring services from the schedules;
Requires that when an agency awards a task order requiring
a statement of work, that if the award is based on other than price
(best value), the contracting officer shall provide a brief explanation
of the basis for the award decision to any unsuccessful contractor that
requests such information.
Adds language stating that the performance period of
Blanket Purchase Agreement (BPA) established under the schedules
program may cross option periods on the base contracts;
Refines guidance regarding the use of Governmentwide BPAs;
Adds language to require the ordering activity to document
the results of its BPA review;
Adds language that encourages or reminds agencies that
they can seek a price reduction at any time, not just when an order
exceeds the maximum order threshold;
Adds additional language to allow for consideration of
socio-economic status when identifying the potential competitors for an
order;
Reinforces documentation requirements generally and adds
new guidance addressing the documentation of orders for services and
sole source orders;
Adds new coverage to allow agencies to make payment for
oral or written orders by any authorized means, including the
Governmentwide commercial purchase card;
Reserves the ordering procedures for Mandatory Use
Schedules section;
Clarifies the procedures for termination for cause and
convenience; and
Reorganizes and revises the subpart text for ease of use.
Item VI--Designated Countries--New European Communities Member States
(FAR Case 2004-008)
This final rule amends the FAR to implement a determination by the
United States Trade Representative (USTR) under the Trade Agreements
Act that suppliers from the 10 new member states of the European
Communities (EC) (i.e., the European Union) are eligible to participate
in U.S. Government procurement under the terms and conditions of the
World Trade Organization Government Procurement Agreement (WTO GPA).
This means that in acquisitions subject to the WTO GPA, the contracting
officer can accept offers of eligible products from Cyprus, the Czech
Republic, Estonia, Hungary, Latvia, Lithuania, Malta, Poland, the
Slovak Republic, and Slovenia without application of the Buy American
Act evaluation factor.
Item VII--Buy American Act--Nonavailable Articles (FAR Case 2003-007)
This final rule amends FAR 25.104(a) to add certain food and
textile items to the list of articles not available from domestic
sources in sufficient and reasonably available commercial quantities of
a satisfactory quality. This case is based on extensive market research
by the Defense Logistics Agency. Unless the contracting officer learns
before the time designated for receipt of bids in sealed bidding or
final offers in negotiation that an article on the list is available
domestically in sufficient and reasonably available quantities of a
satisfactory quality, the Buy American Act does not apply to
acquisition of these items as end products, and the contracting officer
may treat foreign components of the same class or kind as domestic
components.
Item VIII--Application of Cost Principles and Procedures and Accounting
for Unallowable Costs (FAR Case 2002-006)
This final rule amends the FAR by revising FAR 31.204, Application
of principles and procedures, to improve clarity and structure. The
case was initiated as a result of comments and recommendations received
from industry and Government representatives during a series of public
meetings. This rule is of particular interest to contractors and
contracting officers who use cost analysis to price contracts and
modifications, and who determine or negotiate reasonable costs in
accordance with a clause of a contract, e.g., price revision of fixed-
price incentive contracts, terminated contracts, or indirect cost
rates.
Item IX--Gains and Losses, Maintenance and Repair Costs, and Material
Costs (FAR Case 2002-008)
This final rule amends the FAR by deleting the cost principle at
FAR 31.205-24, Maintenance and repair costs, because either Cost
Accounting Standards (CAS) or Generally Accepted Accounting Practices
(GAAP) adequately address these costs. The rule also revises the cost
principles at FAR 31.205-7, Contingencies; FAR 31.205-26, Material
costs; and FAR 31.205-44, Training and education costs, by improving
clarity and structure, and removing unnecessary and duplicative
language.
The case was initiated as a result of comments and recommendations
received from industry and Government representatives during a series
of public meetings. This rule is of particular interest to contractors
and contracting officers who use cost analysis to price contracts and
modifications, and who determine or negotiate reasonable costs in
accordance with a clause of a contract, e.g., price revision of fixed-
price incentive contracts, terminated contracts, or indirect cost
rates.
Item X--Technical Amendments
This amendment makes editorial changes at 8.003(d), 11.102, and
11.202(b), and removes sections 53.301-254 and 53.301-255.
Dated: June 10, 2004.
Ralph J. De Stefano,
Acting Director, Acquisition Policy Division.
Federal Acquisition Circular
Number 2001-224
Federal Acquisition Circular (FAC) 2001-24 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and
Space Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 2001-24 are
effective July 19, 2004, except for Items I, IV, VI, and X, which
are effective June 18, 2004.
Dated: June 9, 2004.
Deidre A. Lee,
Director, Defense Procurement and Acquisition Policy.
Dated: June 10, 2004.
David A. Drabkin,
Deputy Associate Administrator, Office of Acquisition Policy,
General Services Administration.
Dated: June 8, 2004.
Tom Luedtke,
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Assistant Administrator for Procurement, National Aeronautics and
Space Administration.
[FR Doc. 04-13617 Filed 6-17-04; 8:45 am]