Federal Acquisition Regulation; FAR Case 2004-007, Federal Technical Data Solution (FedTeDS), 20295-20298 [06-3678]
Download as PDF
<![CDATA[
Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / Rules and Regulations
Item VI—Expiration of the Price
Evaluation Adjustment (FAR Case
2005–002)
This final rule adopts, without
change, an interim rule that amended
the FAR to cancel the authority for
civilian agencies, other than NASA and
the U.S. Coast Guard, to apply the price
evaluation adjustment to certain small
disadvantaged business concerns in
competitive acquisitions. The change
was required because the statutory
authority for the adjustments had
expired. As a result, certain small
disadvantaged business concerns will
no longer benefit from the adjustments.
DoD, NASA, and the U.S. Coast Guard
are authorized to continue applying the
price evaluation adjustment.
Item VII—Removal of Sanctions
Against Certain European Union
Member States (FAR Case 2005–045)
This interim rule removes the
sanctions in FAR Part 25 against
Austria, Belgium, Denmark, Finland,
France, Ireland, Italy, Luxembourg, the
Netherlands, Sweden, and the United
Kingdom on acquisitions not covered by
the World Trade Organization
Government Procurement Agreement
(WTO GPA). These sanctions did not
apply to small business set-asides, to
acquisitions below the simplified
acquisition threshold using simplified
acquisition procedures, or to
acquisitions by the Department of
Defense. Contracting officers may now
consider offers of end products,
services, and construction that were
previously prohibited by the sanctions.
wwhite on PROD1PC65 with RULES3
Item VIII—Free Trade Agreements Morocco (FAR Case 2006–001)
This interim rule allows contracting
officers to purchase the products of
Morocco without application of the Buy
American Act if the acquisition is
subject to the Morocco Free Trade
Agreement. The U.S. Trade
Representative negotiated a Free Trade
Agreement with Morocco, which went
into effect January 1, 2006. This
agreement joins the North American
Free Trade Agreement (NAFTA) and the
Australia, Chile, and Singapore Free
Trade Agreements which are already in
the FAR. The threshold for applicability
of the Morocco Free Trade Agreement is
$193,000 for supplies and services,
$7,407,000 for construction.
Procedure’’ clause. If the Fast Payment
clause is in the contract, such unmarked
invoices will no longer be rejected.
Instead, they will be paid using either
fast payment or normal payment
procedures. In addition, the revision
deletes the requirement for marking
invoices ‘‘No Receiving Report
Prepared.’’
DEPARTMENT OF DEFENSE
X—Technical Amendment
[FAC 2005–09; FAR Case 2004–007; Item
I; Docket FAR–2006–0020]
An editorial change is made at FAR
19.1005(a) in Item 3 of the NAICS
Description by removing from the end of
NAICS code entry ‘‘541310’’ the word
‘‘or’’.
Dated: April 12, 2006.
Gerald Zaffos,
Director, Contract Policy Division.
18:56 Apr 18, 2006
Jkt 208001
Dated: April 8, 2006.
Shay D. Assad,
Director, Defense Procurement and
Acquisition Policy.
Dated: April 12, 2006.
Roger D. Waldron,
Acting Senior Procurement Executive, Office
of the Chief Acquisition Officer, General
Services Administration.
Dated: April 5, 2006.
Tom Luedtke,
Assistant Administrator for Procurement,
National Aeronautics and Space
Administration.
[FR Doc. 06–3677 Filed 4–18–06; 8:45 am]
PO 00000
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 5, and 7
RIN 9000–AK08
Federal Acquisition Regulation; FAR
Case 2004–007, Federal Technical Data
Solution (FedTeDS)
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
Federal Acquisition Circular (FAC)
2005–09 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 2005–09 is effective May 19,
2006, except for Items II, IV, V, VI, VII,
VIII, and X which are effective April 19,
2006.
BILLING CODE 6820–EP–S
GENERAL SERVICES
ADMINISTRATION
AGENCIES:
Federal Acquisition Circular
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 require contracting
officers to use the Federal Technical
Data Solution (FedTeDS) for electronic
posting of solicitation-related materials
that require control over availability or
distribution unless certain exceptions
apply.
Effective Date: May 19, 2006.
The
FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, at
(202) 501–4755 for information
pertaining to status or publication
schedules. For clarification of content,
contact Mr. Gerald Zaffos, Procurement
Analyst, at (202) 208–6091. Please cite
FAC 2005–09, FAR case 2004–007.
SUPPLEMENTARY INFORMATION:
DATES:
FOR FURTHER INFORMATION CONTACT:
A. Background
DoD, GSA, and NASA published a
proposed rule in the Federal Register at
69 FR 63436 on November 1, 2004. The
60-day comment period for the
proposed rule ended January 3, 2005.
Sixteen comments were received from
seven commenters. Some of the
comments merely agreed with the
concept of FedTeDS, others pointed out
areas of concern. The substantive
comments are discussed below.
Public Comments
Item IX—Fast Payment Procedures
(FAR Case 2004–031)
This amendment permits, but does
not require, fast payment when invoices
and/or outer shipping containers are not
marked ‘‘Fast Pay’’, provided the
contract includes the ‘‘Fast Payment
VerDate Aug<31>2005
20295
1. Comment: FedTeDS will reduce
competition on typical large
construction projects. By restricting
document access to those who are
registered in CCR and have an access
code, the use of FedTeDS will result in
Frm 00003
Fmt 4701
Sfmt 4700
E:\FR\FM\19APR3.SGM
19APR3
wwhite on PROD1PC65 with RULES3
20296
Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / Rules and Regulations
reduced interest in the project and
reduced competition.
Council’s response: In keeping with
the President’s Management Agenda
and the eGov initiative, making
FedTeDS use mandatory for solicitationrelated documents that require limited
availability or distribution will better
secure that information and eliminate
the use of duplicative and less secure
document hosting systems. There has
been no noticeable reduction in interest
or competition where vendors have
been required to register and use
FedTeDS to access solicitation
information. FedTeDS provides tools for
vendors to customize their environment,
track information, and reduce
unnecessary paper handling.
2. Comment: The construction
industry standard is for plans and
specifications to be viewable in plan
rooms and on the internet. Others, such
as plan rooms and printing companies,
are likely to distribute FedTeDS
materials publicly without the
Government’s knowledge.
Council’s response: Those who access
and download FedTeDS information
have an obligation to assure continued
control over that information. The
FedTeDS program staff is working with
plan rooms to explore ways that the
security provided by FedTeDS can be
applied in a similar manner by plan
rooms wishing to distribute the
information outside FedTeDS.
3. Comment: The use of FedTeDS
should be optional, not mandatory.
Optional use will allow agencies to
maintain and develop similar websites.
Agencies should be free to use or
develop any mechanism they choose to
secure solicitation related information.
Council’s response: As part of the
Integrated Acquisition Environment, the
objective of FedTeDS is to carry out the
President’s Management Agenda and
the eGov initiative to eliminate
duplicative and redundant systems.
Agencies should not be compelled to
choose among multiple mechanisms for
securing solicitation-related data.
Vendors and other interested parties
should not be compelled to understand
and adapt to an array of mechanisms
and Web site addresses used to secure
solicitation-related information.
FedTeDS provides a single, secure
system and Web site for
Governmentwide use in controlling
access and distribution of solicitationrelated documents.
4. Comment: FedTeDS functionality
will be included in the
Governmentwide Point of Entry (GPE)
FedBizOpps system. This will eliminate
the need for FedTeDS as a separate
system.
VerDate Aug<31>2005
18:56 Apr 18, 2006
Jkt 208001
Council’s response: The inclusion of
FedTeDS functionality in FedBizOpps is
an optional requirement in the
solicitation for replacement of
FedBizOpps. Once the contract has been
awarded, the expectations, plans and
anticipated deliverable dates for
inclusion of FedTeDS functionality in
FedBizOpps will be known. Until the
new FedBizOpps system and its
FedTeDS-like functionality become
operational, FedTeDS remains a proven
and useful system for Governmentwide
use.
5. Comment: The FAR amendment to
mandate the use of FedTeDS will limit
the Government’s ability to enhance
systems and leverage new technologies.
Council’s response: The comment is
too vague to adequately address the real
concern.
6. Comment: The language proposed
for FAR 5.102 is confusing and
redundant. The language should be
changed to be more clear and concise.
Council’s response: We concur that
the proposed language for FAR 5.102 is
confusing and contains redundancies.
We have revised the applicable language
accordingly.
7. Comment: The amendment should
contain a definition for ‘‘sensitive but
unclassified information.’’ This term is
in wide use among agencies and may be
useful in determining what information
should be posted on FedTeDS.
Council’s response: The industry
terminology for ‘‘sensitive but
unclassified information’’ is changing to
unclassified, sensitive information. This
term is consistent with the Computer
Security Act of 1987, where ‘‘sensitive
information’’ refers to any information,
the loss, misuse, or unauthorized access
to or modification of which could
adversely affect the national interest or
the conduct of Federal programs, but
which has not been specifically
authorized under criteria established by
an Executive order or an Act of Congress
to be kept secret in the interest of
national defense or foreign policy.
Furthermore, the Act states that the
head of a Federal agency may employ
standards for the cost effective security
and privacy of sensitive information in
a Federal computer system within or
under the supervision of that agency.
FedTeds has ‘‘Sensitive but
Unclassified’’ compliance requirements
as part of accessing any information in
the system. The Councils will work with
program officials to have the
terminology reviewed and updated as
appropriate.
8.Comment: The Governmentwide
Point of Entry (GPE), not FedTeDS,
should be used to distribute all
solicitation related materials.
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
Council’s response: Currently, the
GPE does not contain the functionality
needed to control the availability or
distribution of solicitation-related
documents. Until the GPE is upgraded
to provide the required functionality,
FedTeDS will be used to provide the
required functionality.
9. Comment: Use of FedTeDS should
be made mandatory, not optional.
Mandatory use will reduce the need for
agencies to maintain similar websites.
Council’s response: We agree. The use
of FedTeDS is being made mandatory
with a few necessary exceptions. Those
exceptions are the same used to
advertise and distribute solicitations on
the GPE.
10. Comment: The proposed
amendment does not cover vendors that
are exempt from registering in CCR,
such as foreign vendors who may be
interested in work to be performed
outside the U.S.
Council’s Response: FedTeDS requires
all vendors to be registered in CCR and
FedTeDS in order to gain access to
FedTeDS. Vendors who are unable to
register, or who are exempt from
registration in CCR, may contact the
contracting officer directly to receive the
solicitation-related documents.
11. Comment: Are the exceptions at
FAR 5.102 meant to address all of the
exceptions to CCR registration found at
FAR 4.1102?
Council’s response: No. FAR 4.1102
addresses exceptions to the requirement
for prospective vendors to register in
CCR. Vendors who are excepted from
CCR registration under FAR 4.1102 may
contact the contracting officer directly
to obtain the solicitation-related
documents posted on FedTeDS. The
FAR 5.102 exceptions address the
requirement to post on FedTeDS
solicitation-related documents that
require control over access and
distribution as opposed to posting those
documents on the GPE.
12. Comment: The use of the MPIN
(unique CCR vendor identification) for
FedTeDS access poses a security risk for
vendors. A company may not wish to
share their MPIN with individual
employees because the MPIN is also
used to access competitively sensitive
past performance information contained
in the Past Performance Information
Retrieval System (PPIRS) or other
Government systems that may require
the MPIN for access. While individual
employees may be assigned individual
FedTeDS accounts, those individuals
may then distribute or otherwise handle
FedTeDS information in a manner that
is inconsistent with company policy.
Council’s response: Under both CCR
and FedTeDS, only the company point
E:\FR\FM\19APR3.SGM
19APR3
wwhite on PROD1PC65 with RULES3
Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / Rules and Regulations
of contact knows the MPIN. The point
of contact uses the MPIN to register one
or more employees in FedTeDS.
Registration consists of identifying each
employee designated to have FedTeDS
access and assigning them a unique user
identification and password for use in
accessing FedTeDS. The employees then
use their assigned user identification
and password to log into FedTeDS.
Thus, only the company point of contact
has access to the MPIN.
13. Comment: Contracting officers
may use FedTeDS registration
inappropriately. In at least one case, oral
proposal presenters were required to be
registered in FedTeDS in order to be
assigned an orals appointment time.
Some solicitations and materials are
posted on FedTeDS that are in no way
sensitive.
Council’s response: The Government
may use its discretion in determining
what needs to be included in any
procurement and posted on FedBizOpps
and in FedTeDS.
FedTeDS has proved to be a useful
tool to control access and distribution of
solicitation-related documents where
control is deemed necessary by the
Government. Training materials will be
developed for contracting officers to
assure proper use of FedTeDS.
14. Comment: Granting employees
access to FedTeDS using the MPIN may
inadvertently violate International
Traffic in Arms (ITAR) regulations by
weakening central control over access
and distribution of export controlled
materials.
Council’s response: The Councils
share the commenter’s concern and
have revised the proposed rule to
address the export control issue. As
indicated in our response to Comment
12, the company point of contact does
not have to disclose the company MPIN
to other employees to register them in
FedTeDS. As indicated the company
point of contact controls which
employees receive a user identification
and password.
15. Comment: Once an individual is
registered in FedTeDS, they start getting
notices of other solicitations that are
only posted in FedTeDS. These
employees may download these
solicitations and distribute or otherwise
mishandle them without the company
knowing.
Council’s response: This comment is
similar to comment 12 and 14. Anyone
who gains access to FedTeDS
information may then redistribute that
information in an uncontrolled manner.
Control of employee behavior and
potential liability for employee actions
is a matter for internal company
management and concern.
VerDate Aug<31>2005
18:56 Apr 18, 2006
Jkt 208001
Therefore, this final rule amends FAR
Parts 2, 5 and 7 to require contracting
officers to provide solicitation-related
information that requires limited
availability or distribution to offerors
electronically via the FedTeDS system
unless certain exceptions apply.
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 the
rule does not impose any costs on either
small or large businesses; therefore, an
Initial Regulatory Flexibility Analysis
has not been performed. We invite
comments from small businesses and
other interested parties. The Councils
will consider comments from small
entities concerning the affected FAR
Parts 2, 5, and 7 in accordance with 5.
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C. 601, et seq. (FAC
2005–09, FAR case 2004–007), in
correspondence.
20297
the definition ‘‘Federal Technical Data
Solution (FedTeDS)’’ to read as follows:
2.101
Definitions.
*
*
*
*
*
(b) * * *
(2) * * *
Federal Technical Data Solution
(FedTeDS) is a web application
integrated with the Governmentwide
Point of Entry (GPE) and the Central
Contractor Registration (CCR) system for
distribution of information related to
contract opportunities. It is designed to
enhance controls on the access and
distribution of solicitation requirements
or other documents when controls are
necessary according to agency
procedures. FedTeDS may be found on
the Internet at https://www.fedteds.gov.
*
*
*
*
*
PART 5—PUBLICIZING CONTRACT
ACTIONS
3. Amend section 5.102 by revising
paragraph (a)(1); redesignating
paragraph (a)(4) as (a)(5), and adding
new paragraph (a)(4); revising newly
redesignated (a)(5); and by removing
from paragraph (b) introductory text
‘‘(a)(4)’’ and adding ‘‘(a)(5)’’ in its place.
The revised text reads as follows:
I
5.102
Availability of solicitations.
PART 2—DEFINITION OF WORDS AND
TERMS
(a)(1) Except as provided in paragraph
(a)(5) of this section, the contracting
officer must make available through the
GPE solicitations synopsized through
the GPE, including specifications,
technical data, and other pertinent
information determined necessary by
the contracting officer. Transmissions to
the GPE must be in accordance with the
interface description available via the
Internet at https://www.fedbizopps.gov.
*
*
*
*
*
(4) When an agency determines that a
solicitation contains information that
requires additional controls to monitor
access and distribution (e.g., technical
data, specifications, maps, building
designs, schedules, etc.), the
information shall be made available
through the Federal Technical Data
Solution (FedTeDS) unless an exception
in paragraph (a)(5) of this section
applies. When FedTeDS is used, it shall
be used in conjunction with the GPE to
meet the synopsis and advertising
requirements of this part.
(5) The contracting officer need not
make a solicitation available through the
GPE, or make other information
available through FedTeDS as required
in paragraph (a)(4) of this section,
when—
2. Amend section 2.101 in paragraph
(b)(2) by adding, in alphabetical order
(i) Disclosure would compromise the
national security (e.g., would result in
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, 5,
and 7
Government procurement.
Dated: April 12, 2006.
Gerald Zaffos
Director, Contract Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 2, 5, and 7 as set
forth below:
I 1. The authority citation for 48 CFR
parts 2, 5, and 7 continues to read as
follows:
I
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
I
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
E:\FR\FM\19APR3.SGM
19APR3
20298
Federal Register / Vol. 71, No. 75 / Wednesday, April 19, 2006 / Rules and Regulations
disclosure of classified information, or
information subject to export controls)
or create other security risks. The fact
that access to classified matter may be
necessary to submit a proposal or
perform the contract does not, in itself,
justify use of this exception;
(ii) The nature of the file (e.g., size,
format) does not make it cost-effective
or practicable for contracting officers to
provide access to the solicitation
through the GPE;
(iii) Agency procedures specify that
the use of FedTeDS does not provide
sufficient controls for the information to
be made available and an alternative
means of distributing the information is
more appropriate; or
(iv) The agency’s senior procurement
executive makes a written
determination that access through the
GPE is not in the Government’s interest.
*
*
*
*
*
I 4. Amend section 5.207 by revising
paragraph (c)(18) to read as follows:
5.207 Preparation and transmittal of
synopses.
*
*
*
*
*
(c) * * *
(18) If the technical data required to
respond to the solicitation will not be
furnished as part of such solicitation,
identify the source in the Government,
such as FedTeDS (https://
www.fedteds.gov), from which the
technical data may be obtained.
*
*
*
*
*
PART 7—ACQUISITION PLANNING
5. Amend section 7.105 by revising
paragraph (b)(15) to read as follows:
I
7.105 Contents of written acquisition
plans.
wwhite on PROD1PC65 with RULES3
*
*
*
*
*
(b) * * *
(15) Government-furnished
information. Discuss any Government
information, such as manuals, drawings,
and test data, to be provided to
prospective offerors and contractors.
Indicate which information that requires
additional controls to monitor access
and distribution (e.g., technical
specifications, maps, building designs,
schedules, etc.), as determined by the
agency, is to be posted via the Federal
Technical Data Solution (FedTeDS) (see
5.102(a)).
*
*
*
*
*
[FR Doc. 06–3678 Filed 4–18–06; 8:45 am]
BILLING CODE 6820–EP–S
VerDate Aug<31>2005
18:56 Apr 18, 2006
Jkt 208001
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Part 2
[FAC 2005–09; FAR Case 2004–030; Item
II; Docket FAR–2006–0020]
RIN 9000–AK21
Federal Acquisition Regulation; FAR
Case 2004–030, Definition of
Information Technology
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed to convert to a
final rule without change, an interim
rule amending the Federal Acquisition
Regulation (FAR) to revise the definition
of ‘‘Information technology’’ to reflect
the changes to the definition resulting
from the enactment of Public Law 108–
199, Consolidated Appropriations Act,
2004. Section 535(b) of Division F of
Public Law 108–199 permanently
revises the term ‘‘Information
technology’’, which is defined at 40
U.S.C. 11101, to add ‘‘analysis and
evaluation’’ and to clarify the term
‘‘ancillary equipment.’’
DATES: Effective Date: April 19, 2006.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Cecelia Davis, Procurement Analyst, at
(202) 219–0202. Please cite FAC 2005–
09, FAR case 2004–030. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an
interim rule in the Federal Register at
70 FR 43577 on July 27, 2005. The
interim rule revised the definition of
‘‘Information technology’’ to reflect the
changes to the definition resulting from
the enactment of Public Law 108–199,
Consolidated Appropriations Act, 2004.
The new language at Section 535(b) of
Division F of Public Law 108–199
permanently revises the term
‘‘Information technology’’, which is
defined at 40 U.S.C. 11101, to add
‘‘analysis and evaluation’’ and to clarify
the term ‘‘ancillary equipment.’’
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
The Councils received one public
comment in response to the interim
rule. The commenter indicated that the
addition of the words ‘‘analysis,
evaluation’’ was omitted from the
changes to the definition of information
technology in FAR 2.101(b) in the
Federal Register on page 43578.
Although not reprinted in full FAR text
of the definition of information
technology, change instruction 2 of the
Federal Register notice added ‘‘analysis,
evaluation’’ to the two appropriate
portions of the definition. The Code of
Federal Regulations text was changed in
accordance with this instruction, and no
further changes are required.
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 the
rule only revises and clarifies the
definition for information technology
resulting from the enactment of Public
Law 108–199, Consolidated
Appropriations Act, 2004. This is a
minor technical change to the
definition. We did not receive any
comments on this issue from small
business concerns or other interested
parties.
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 Part 2
Government procurement.
Dated: April 12, 2006.
Gerald Zaffos,
Director, Contract Policy Division.
Interim Rule Adopted as Final Without
Change
Accordingly, the interim rule
amending 48 CFR part 2, which was
published in the Federal Register at 70
I
E:\FR\FM\19APR3.SGM
19APR3
]]>Agencies
[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Rules and Regulations]
[Pages 20295-20298]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 06-3678]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 5, and 7
[FAC 2005-09; FAR Case 2004-007; Item I; Docket FAR-2006-0020]
RIN 9000-AK08
Federal Acquisition Regulation; FAR Case 2004-007, Federal
Technical Data Solution (FedTeDS)
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
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 require
contracting officers to use the Federal Technical Data Solution
(FedTeDS) for electronic posting of solicitation-related materials that
require control over availability or distribution unless certain
exceptions apply.
DATES: Effective Date: May 19, 2006.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-
6091. Please cite FAC 2005-09, FAR case 2004-007.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 69 FR 63436 on November 1, 2004. The 60-day comment period
for the proposed rule ended January 3, 2005. Sixteen comments were
received from seven commenters. Some of the comments merely agreed with
the concept of FedTeDS, others pointed out areas of concern. The
substantive comments are discussed below.
Public Comments
1. Comment: FedTeDS will reduce competition on typical large
construction projects. By restricting document access to those who are
registered in CCR and have an access code, the use of FedTeDS will
result in
[[Page 20296]]
reduced interest in the project and reduced competition.
Council's response: In keeping with the President's Management
Agenda and the eGov initiative, making FedTeDS use mandatory for
solicitation-related documents that require limited availability or
distribution will better secure that information and eliminate the use
of duplicative and less secure document hosting systems. There has been
no noticeable reduction in interest or competition where vendors have
been required to register and use FedTeDS to access solicitation
information. FedTeDS provides tools for vendors to customize their
environment, track information, and reduce unnecessary paper handling.
2. Comment: The construction industry standard is for plans and
specifications to be viewable in plan rooms and on the internet.
Others, such as plan rooms and printing companies, are likely to
distribute FedTeDS materials publicly without the Government's
knowledge.
Council's response: Those who access and download FedTeDS
information have an obligation to assure continued control over that
information. The FedTeDS program staff is working with plan rooms to
explore ways that the security provided by FedTeDS can be applied in a
similar manner by plan rooms wishing to distribute the information
outside FedTeDS.
3. Comment: The use of FedTeDS should be optional, not mandatory.
Optional use will allow agencies to maintain and develop similar
websites. Agencies should be free to use or develop any mechanism they
choose to secure solicitation related information.
Council's response: As part of the Integrated Acquisition
Environment, the objective of FedTeDS is to carry out the President's
Management Agenda and the eGov initiative to eliminate duplicative and
redundant systems. Agencies should not be compelled to choose among
multiple mechanisms for securing solicitation-related data. Vendors and
other interested parties should not be compelled to understand and
adapt to an array of mechanisms and Web site addresses used to secure
solicitation-related information. FedTeDS provides a single, secure
system and Web site for Governmentwide use in controlling access and
distribution of solicitation-related documents.
4. Comment: FedTeDS functionality will be included in the
Governmentwide Point of Entry (GPE) FedBizOpps system. This will
eliminate the need for FedTeDS as a separate system.
Council's response: The inclusion of FedTeDS functionality in
FedBizOpps is an optional requirement in the solicitation for
replacement of FedBizOpps. Once the contract has been awarded, the
expectations, plans and anticipated deliverable dates for inclusion of
FedTeDS functionality in FedBizOpps will be known. Until the new
FedBizOpps system and its FedTeDS-like functionality become
operational, FedTeDS remains a proven and useful system for
Governmentwide use.
5. Comment: The FAR amendment to mandate the use of FedTeDS will
limit the Government's ability to enhance systems and leverage new
technologies.
Council's response: The comment is too vague to adequately address
the real concern.
6. Comment: The language proposed for FAR 5.102 is confusing and
redundant. The language should be changed to be more clear and concise.
Council's response: We concur that the proposed language for FAR
5.102 is confusing and contains redundancies. We have revised the
applicable language accordingly.
7. Comment: The amendment should contain a definition for
``sensitive but unclassified information.'' This term is in wide use
among agencies and may be useful in determining what information should
be posted on FedTeDS.
Council's response: The industry terminology for ``sensitive but
unclassified information'' is changing to unclassified, sensitive
information. This term is consistent with the Computer Security Act of
1987, where ``sensitive information'' refers to any information, the
loss, misuse, or unauthorized access to or modification of which could
adversely affect the national interest or the conduct of Federal
programs, but which has not been specifically authorized under criteria
established by an Executive order or an Act of Congress to be kept
secret in the interest of national defense or foreign policy.
Furthermore, the Act states that the head of a Federal agency may
employ standards for the cost effective security and privacy of
sensitive information in a Federal computer system within or under the
supervision of that agency. FedTeds has ``Sensitive but Unclassified''
compliance requirements as part of accessing any information in the
system. The Councils will work with program officials to have the
terminology reviewed and updated as appropriate.
8.Comment: The Governmentwide Point of Entry (GPE), not FedTeDS,
should be used to distribute all solicitation related materials.
Council's response: Currently, the GPE does not contain the
functionality needed to control the availability or distribution of
solicitation-related documents. Until the GPE is upgraded to provide
the required functionality, FedTeDS will be used to provide the
required functionality.
9. Comment: Use of FedTeDS should be made mandatory, not optional.
Mandatory use will reduce the need for agencies to maintain similar
websites.
Council's response: We agree. The use of FedTeDS is being made
mandatory with a few necessary exceptions. Those exceptions are the
same used to advertise and distribute solicitations on the GPE.
10. Comment: The proposed amendment does not cover vendors that are
exempt from registering in CCR, such as foreign vendors who may be
interested in work to be performed outside the U.S.
Council's Response: FedTeDS requires all vendors to be registered
in CCR and FedTeDS in order to gain access to FedTeDS. Vendors who are
unable to register, or who are exempt from registration in CCR, may
contact the contracting officer directly to receive the solicitation-
related documents.
11. Comment: Are the exceptions at FAR 5.102 meant to address all
of the exceptions to CCR registration found at FAR 4.1102?
Council's response: No. FAR 4.1102 addresses exceptions to the
requirement for prospective vendors to register in CCR. Vendors who are
excepted from CCR registration under FAR 4.1102 may contact the
contracting officer directly to obtain the solicitation-related
documents posted on FedTeDS. The FAR 5.102 exceptions address the
requirement to post on FedTeDS solicitation-related documents that
require control over access and distribution as opposed to posting
those documents on the GPE.
12. Comment: The use of the MPIN (unique CCR vendor identification)
for FedTeDS access poses a security risk for vendors. A company may not
wish to share their MPIN with individual employees because the MPIN is
also used to access competitively sensitive past performance
information contained in the Past Performance Information Retrieval
System (PPIRS) or other Government systems that may require the MPIN
for access. While individual employees may be assigned individual
FedTeDS accounts, those individuals may then distribute or otherwise
handle FedTeDS information in a manner that is inconsistent with
company policy.
Council's response: Under both CCR and FedTeDS, only the company
point
[[Page 20297]]
of contact knows the MPIN. The point of contact uses the MPIN to
register one or more employees in FedTeDS. Registration consists of
identifying each employee designated to have FedTeDS access and
assigning them a unique user identification and password for use in
accessing FedTeDS. The employees then use their assigned user
identification and password to log into FedTeDS. Thus, only the company
point of contact has access to the MPIN.
13. Comment: Contracting officers may use FedTeDS registration
inappropriately. In at least one case, oral proposal presenters were
required to be registered in FedTeDS in order to be assigned an orals
appointment time. Some solicitations and materials are posted on
FedTeDS that are in no way sensitive.
Council's response: The Government may use its discretion in
determining what needs to be included in any procurement and posted on
FedBizOpps and in FedTeDS.
FedTeDS has proved to be a useful tool to control access and
distribution of solicitation-related documents where control is deemed
necessary by the Government. Training materials will be developed for
contracting officers to assure proper use of FedTeDS.
14. Comment: Granting employees access to FedTeDS using the MPIN
may inadvertently violate International Traffic in Arms (ITAR)
regulations by weakening central control over access and distribution
of export controlled materials.
Council's response: The Councils share the commenter's concern and
have revised the proposed rule to address the export control issue. As
indicated in our response to Comment 12, the company point of contact
does not have to disclose the company MPIN to other employees to
register them in FedTeDS. As indicated the company point of contact
controls which employees receive a user identification and password.
15. Comment: Once an individual is registered in FedTeDS, they
start getting notices of other solicitations that are only posted in
FedTeDS. These employees may download these solicitations and
distribute or otherwise mishandle them without the company knowing.
Council's response: This comment is similar to comment 12 and 14.
Anyone who gains access to FedTeDS information may then redistribute
that information in an uncontrolled manner. Control of employee
behavior and potential liability for employee actions is a matter for
internal company management and concern.
Therefore, this final rule amends FAR Parts 2, 5 and 7 to require
contracting officers to provide solicitation-related information that
requires limited availability or distribution to offerors
electronically via the FedTeDS system unless certain exceptions apply.
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 the rule does not
impose any costs on either small or large businesses; therefore, an
Initial Regulatory Flexibility Analysis has not been performed. We
invite comments from small businesses and other interested parties. The
Councils will consider comments from small entities concerning the
affected FAR Parts 2, 5, and 7 in accordance with 5. U.S.C. 610.
Interested parties must submit such comments separately and should cite
5 U.S.C. 601, et seq. (FAC 2005-09, FAR case 2004-007), in
correspondence.
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, 5, and 7
Government procurement.
Dated: April 12, 2006.
Gerald Zaffos
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 5, and 7 as set
forth below:
0
1. The authority citation for 48 CFR parts 2, 5, and 7 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).
PART 2--DEFINITION OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical
order the definition ``Federal Technical Data Solution (FedTeDS)'' to
read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Federal Technical Data Solution (FedTeDS) is a web application
integrated with the Governmentwide Point of Entry (GPE) and the Central
Contractor Registration (CCR) system for distribution of information
related to contract opportunities. It is designed to enhance controls
on the access and distribution of solicitation requirements or other
documents when controls are necessary according to agency procedures.
FedTeDS may be found on the Internet at https://www.fedteds.gov.
* * * * *
PART 5--PUBLICIZING CONTRACT ACTIONS
0
3. Amend section 5.102 by revising paragraph (a)(1); redesignating
paragraph (a)(4) as (a)(5), and adding new paragraph (a)(4); revising
newly redesignated (a)(5); and by removing from paragraph (b)
introductory text ``(a)(4)'' and adding ``(a)(5)'' in its place. The
revised text reads as follows:
5.102 Availability of solicitations.
(a)(1) Except as provided in paragraph (a)(5) of this section, the
contracting officer must make available through the GPE solicitations
synopsized through the GPE, including specifications, technical data,
and other pertinent information determined necessary by the contracting
officer. Transmissions to the GPE must be in accordance with the
interface description available via the Internet at https://
www.fedbizopps.gov.
* * * * *
(4) When an agency determines that a solicitation contains
information that requires additional controls to monitor access and
distribution (e.g., technical data, specifications, maps, building
designs, schedules, etc.), the information shall be made available
through the Federal Technical Data Solution (FedTeDS) unless an
exception in paragraph (a)(5) of this section applies. When FedTeDS is
used, it shall be used in conjunction with the GPE to meet the synopsis
and advertising requirements of this part.
(5) The contracting officer need not make a solicitation available
through the GPE, or make other information available through FedTeDS as
required in paragraph (a)(4) of this section, when--
(i) Disclosure would compromise the national security (e.g., would
result in
[[Page 20298]]
disclosure of classified information, or information subject to export
controls) or create other security risks. The fact that access to
classified matter may be necessary to submit a proposal or perform the
contract does not, in itself, justify use of this exception;
(ii) The nature of the file (e.g., size, format) does not make it
cost-effective or practicable for contracting officers to provide
access to the solicitation through the GPE;
(iii) Agency procedures specify that the use of FedTeDS does not
provide sufficient controls for the information to be made available
and an alternative means of distributing the information is more
appropriate; or
(iv) The agency's senior procurement executive makes a written
determination that access through the GPE is not in the Government's
interest.
* * * * *
0
4. Amend section 5.207 by revising paragraph (c)(18) to read as
follows:
5.207 Preparation and transmittal of synopses.
* * * * *
(c) * * *
(18) If the technical data required to respond to the solicitation
will not be furnished as part of such solicitation, identify the source
in the Government, such as FedTeDS (https://www.fedteds.gov), from
which the technical data may be obtained.
* * * * *
PART 7--ACQUISITION PLANNING
0
5. Amend section 7.105 by revising paragraph (b)(15) to read as
follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(15) Government-furnished information. Discuss any Government
information, such as manuals, drawings, and test data, to be provided
to prospective offerors and contractors. Indicate which information
that requires additional controls to monitor access and distribution
(e.g., technical specifications, maps, building designs, schedules,
etc.), as determined by the agency, is to be posted via the Federal
Technical Data Solution (FedTeDS) (see 5.102(a)).
* * * * *
[FR Doc. 06-3678 Filed 4-18-06; 8:45 am]
BILLING CODE 6820-EP-S
