Federal Acquisition Regulation; FAR Case 2008-019, Authentic Information Technology Products, 68373-68375 [E8-27275]
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Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules
requirements under State or local law,
and imposes no new requirements.
Accordingly, no additional costs to
State, local, or tribal governments, or to
the private sector, result from this
action.
dwashington3 on PRODPC61 with PROPOSALS
E. Executive Order 13132, Federalism
Federalism (64 FR 43255, August 10,
1999) revokes and replaces Executive
Orders 12612 (Federalism) and 12875
(Enhancing the Intergovernmental
Partnership). Executive Order 13132
requires EPA to develop an accountable
process to ensure ‘‘meaningful and
timely input by State and local officials
in the development of regulatory
policies that have federalism
implications.’’ ‘‘Policies that have
federalism implications’’ is defined in
the Executive Order to include
regulations that have ‘‘substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ Under
Executive Order 13132, EPA may not
issue a regulation that has federalism
implications, that imposes substantial
direct compliance costs, and that is not
required by statute, unless the Federal
government provides the funds
necessary to pay the direct compliance
costs incurred by State and local
governments, or EPA consults with
State and local officials early in the
process of developing the proposed
regulation. EPA also may not issue a
regulation that has federalism
implications and that preempts State
law unless the Agency consults with
State and local officials early in the
process of developing the proposed
regulation.
This rule will not have substantial
direct effects on the States, on the
relationship between the national
government and the States, or on the
distribution of power and
responsibilities among the various
levels of government, as specified in
Executive Order 13132, because it
merely approves a state rule
implementing a federal standard, and
does not alter the relationship or the
distribution of power and
responsibilities established in the Clean
Air Act. Thus, the requirements of
section 6 of the Executive Order do not
apply to this rule.
F. Executive Order 13175, Coordination
With Indian Tribal Governments
Executive Order 13175, entitled
‘‘Consultation and Coordination with
Indian Tribal Governments’’ (65 FR
67249, November 9, 2000), requires EPA
to develop an accountable process to
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14:36 Nov 17, 2008
Jkt 217001
ensure ‘‘meaningful and timely input by
tribal officials in the development of
regulatory policies that have tribal
implications.’’ This proposed rule does
not have tribal implications, as specified
in Executive Order 13175. It will not
have substantial direct effects on tribal
governments, on the relationship
between the Federal government and
Indian tribes, or on the distribution of
power and responsibilities between the
Federal government and Indian tribes.
Thus, Executive Order 13175 does not
apply to this rule.
EPA specifically solicits additional
comment on this proposed rule from
tribal officials.
G. Executive Order 13045, Protection of
Children From Environmental Health
Risks and Safety Risks
EPA interprets Executive Order 13045
(62 FR 19885, April 23, 1997) as
applying only to those regulatory
actions that concern health or safety
risks, such that the analysis required
under section 5–501 of the Executive
Order has the potential to influence the
regulation. This rule is not subject to
Executive Order 13045, because it
approves a state rule implementing a
Federal standard.
H. Executive Order 13211, Actions That
Significantly Affect Energy Supply,
Distribution, or Use
This rule is not subject to Executive
Order 13211, ‘‘Actions Concerning
Regulations That Significantly Affect
Energy Supply, Distribution, or Use’’ (66
FR 28355, May 22, 2001) because it is
not a significant regulatory action under
Executive Order 12866.
I. National Technology Transfer and
Advancement Act
Section 12 of the National Technology
Transfer and Advancement Act
(NTTAA) of 1995 requires Federal
agencies to evaluate existing technical
standards when developing a new
regulation. To comply with NTTAA,
EPA must consider and use ‘‘voluntary
consensus standards’’ (VCS) if available
and applicable when developing
programs and policies unless doing so
would be inconsistent with applicable
law or otherwise impractical.
The EPA believes that VCS are
inapplicable to this action. Today’s
action does not require the public to
perform activities conducive to the use
of VCS.
List of Subjects in 40 CFR Part 52
Environmental protection, Air
pollution control, Intergovernmental
relations, Nitrogen dioxide, Particulate
PO 00000
Frm 00010
Fmt 4702
Sfmt 4702
68373
matter, Reporting and recordkeeping
requirements.
Authority: 42 U.S.C. 7401 et seq.
Dated: October 20, 2008.
Laura Yoshii,
Acting Regional Administrator, Region IX.
[FR Doc. E8–27301 Filed 11–17–08; 8:45 am]
BILLING CODE 6560–50–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 4, 12, 39, and 52
[FAR Case 2008–019; Docket 2008–0001;
Sequence 1]
RIN 9000–AL11
Federal Acquisition Regulation; FAR
Case 2008–019, Authentic Information
Technology Products
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Advance notice of proposed
rulemaking and public meeting.
AGENCIES:
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are seeking comments from
both Government and industry on
whether the Federal Acquisition
Regulation (FAR) should be revised to
include a requirement that contractors
selling information technology (IT)
products (including computer hardware
and software) represent that such
products are authentic. The Councils are
also interested in comments regarding
contractor liability if IT products sold to
the Government, by contractors, are not
authentic. Additionally, the Councils
are seeking comments on whether
contractors who are resellers or
distributors of computer hardware and
software should represent to the
Government that they are authorized by
the original equipment manufacturer
(OEM) to sell the information
technology products to the Government.
Finally, the Councils invite comments
on (1) whether the measures
contemplated above should be extended
to other items purchased by the
Government; and (2) whether the rule
should apply when information
technology is a component of a system
or assembled product.
E:\FR\FM\18NOP1.SGM
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68374
Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules
Public Meeting: A public meeting
will be held on December 11, 2008, from
9:00 a.m. to 3 p.m. EST, in the National
Aeronautics and Space Administration
James E. Webb Memorial Auditorium,
300 E Street SW, Washington, DC
20546. The visitors’ entrance is on the
west end of the building at the corner
of 4th and E Streets SW. Attendees are
encouraged to arrive at least thirty
minutes early to accommodate security
procedures.
If you wish to make a presentation on
this topic, please contact and submit a
copy of your presentation by December
1, 2008, to General Services
Administration, Contract Policy
Division (VPC), 1800 F Street, NW,
Room 4040, Attn: Edward N. Chambers,
Washington, DC 20405. Telephone:
202–501–3221.
Submit electronic materials via e-mail
to Chambers.Edward@gsa.gov. Please
submit presentations only and cite
Public Meeting 2008–019 in all
correspondence related to this public
meeting. The submitted presentations
will be the only record of the public
meeting. If you intend to have your
presentation considered as a public
comment in the formulation of the
proposed rule, the presentation must be
submitted separately as a written
comment as instructed below.
Special Accommodations: The public
meeting is physically accessible to
people with disabilities. Request for
sign language interpretation or other
auxiliary aids should be directed to
Edward N. Chambers, at 202–501–3221,
at least 5 working days prior to the
meeting date.
Comments: Interested parties should
submit written comments to the FAR
Secretariat on or before January 20, 2009
to be considered in the formulation of
a final rule.
ADDRESSES: Submit comments
identified by FAR case 2008–019 by any
of the following methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2008–019’’ under
the heading ‘‘Comment or Submission’’.
Select the link ‘‘Send a Comment or
Submission’’ that corresponds with FAR
Case 2008–019. Follow the instructions
provided to complete the ‘‘Public
Comment and Submission Form’’.
Please include your name, company
name (if any), and ‘‘FAR Case 2008–
019’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(VPR), 1800 F Street, NW, Room 4041,
ATTN: Laurieann Duarte, Washington,
DC 20405.
dwashington3 on PRODPC61 with PROPOSALS
DATES:
VerDate Aug<31>2005
14:36 Nov 17, 2008
Jkt 217001
Instructions: Please submit comments
only and cite FAR case 2008–019 in all
correspondence related to this case. All
comments received will be posted
without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT Mr.
Edward N. Chambers, Procurement
Analyst, at (202) 501–3221 for
clarification of content. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755. Please cite FAR case
2008–019.
The
widespread availability of counterfeit
Information Technology (IT) products
presents a multidimensional threat to
our nation. While it is estimated that
our nation’s industries and governments
lose millions of dollars each year to
counterfeiters, the trade in counterfeit
IT products also presents serious threats
to our national security and consumer
safety.
Today, IT products, such as computer
network hardware, (the infrastructure of
business, healthcare, education, and
communication and information
networks) and integrated circuits (IC),
are used in a wide range of applications;
including automobiles, aircraft,
computers, telecommunications,
medical devices, and consumer
electronics. These IT products are also
essential to our national infrastructure
systems; such as air traffic control,
financial and telecommunication
networks, and government and military
communications, information, and
operating systems.
Counterfeit network hardware and ICs
pose a risk in that they frequently do not
meet the quality standards of genuine
equipment. Various information
indicates that these products have a
higher failure rate than genuine
equipment, and often fail upon
installation, or weeks or months after
installation. Thus, these counterfeit IT
products pose a threat to the national
security and consumer safety because
when they fail, the entire systems in
which they are embedded may also fail.
The Councils believe requiring
contractors to represent that the IT
products they sell to the Government
are authentic, will aid in efforts to
combat counterfeit IT products. In
addition to commenting on the
Government proposal, the public and
industry are invited to offer suggestions
on other ways to limit the risk to the
Government from acquiring counterfeit
IT products.
SUPPLEMENTARY INFORMATION:
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Frm 00011
Fmt 4702
Sfmt 4702
To facilitate public comment, the
Councils have attached provisional FAR
text.
While the focus of this notice is IT
products, comments are invited on (1)
whether the measures proposed herein
should be expanded to include other
items sold to the Government and (2)
whether the rule should apply when
information technology is a component
of a system or assembled product.
Further, the provisional text places the
OEM in the role of ‘‘gatekeeper’’ as to
who is an authorized distributor or
reseller. Is there another party or
process which would be more
appropriate to this role? Also, through
what means should authorized status be
substantiated? By a letter from the OEM,
or a reference on an OEM website?
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.
List of Subjects in 48 CFR Parts 2, 4, 12,
39, and 52
Government procurement.
Dated: November 12, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
propose amending 48 CFR parts 2, 4, 12,
39, and 52 as set forth below:
1. The authority citation for 48 CFR
parts 2, 4, 12, 39, and 52 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—DEFINITIONS OF WORDS
AND TERMS
2. Amend section 2.101 in paragraph
(b) in the definition ‘‘Information
technology’’ by revising paragraph (2) to
read as follows:
2.101
Definitions.
*
*
*
*
*
(b) * * *
Information technology * * *
(2) The term ‘‘information
technology’’ includes—
(i) Computers;
(ii) Ancillary equipment (including
imaging peripherals, input, output, and
storage devices necessary for security
and surveillance);
(iii) Peripheral equipment designed to
be controlled by the central processing
unit of a computer;
(iv) Software, firmware and similar
products;
(v) Services (including support
services); and
E:\FR\FM\18NOP1.SGM
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Federal Register / Vol. 73, No. 223 / Tuesday, November 18, 2008 / Proposed Rules
*
39.102
(vi) Related resources.
*
*
*
*
PART 4—ADMINISTRATIVE MATTERS
3. Amend section 4.1202 by adding
paragraph (cc) to read as follows:
4.1202 Solicitation provisions and
contract clauses.
*
*
*
*
*
(cc) 52.239–XX, Authentic
Information Technology Products—
Representation.
39.107
4. Amend section 12.301 by adding
paragraphs (d)(3) and (d)(4) to read as
follows:
12.301 Solicitation provisions and
contract clauses for the acquisition of
commercial items.
*
*
*
*
*
(d) * * *
(3) Insert the provision at 52.239–XX,
Authentic Information Technology
Products—Representation, as prescribed
at 39.107(b)(1).
(4) Insert the clause at 52.239–YY,
Authentic Information Technology
Products, as prescribed at 39.107(b)(2).
*
*
*
*
*
PART 39—ACQUISITION OF
INFORMATION TECHNOLOGY
*
*
*
*
*
Counterfeit information technology
product means any item of information
technology (IT), including hardware and
software, that is an unauthorized copy,
replica, or substitute.
*
*
*
*
*
6. Amend section 39.101 by adding
paragraph (e) to read as follows:
Policy.
dwashington3 on PRODPC61 with PROPOSALS
*
*
*
*
(e) To protect the Government from
procuring counterfeit IT products,
agencies shall ensure that all
acquisitions for IT products are
procured from the original equipment
manufacturer (OEM), software
developer, or authorized distributor or
reseller. Agencies shall ensure that all
solicitations and contracts for the
acquisition of IT products include a
requirement for the offeror or contractor
to represent that the IT products being
sold under its contract to the
Government are not counterfeit.
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14:36 Nov 17, 2008
Jkt 217001
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
52.239–1
[Amended]
9. Amend section 52.239–1 by
removing from the introductory
paragraph ‘‘39.107’’ and adding
‘‘39.107(a)’’ in its place.
10. Add sections 52.239–XX and
52.239–YY to read as follows:
As prescribed in 39.107(b)(1), insert
the following provision:
Definitions.
*
*
*
*
*
(b)(1) The contracting officer shall
insert the provision at 52.239–XX,
Authentic Information Technology
Products—Representation, in all
solicitations for the acquisition of IT
products.
(2) The contracting officer shall insert
the clause at 52.239–YY, Authentic
Information Technology Products, in all
contracts for the acquisition of IT
products.
52.239–XX Authentic Information
Technology Products—Representation.
5. Amend section 39.002 by adding,
in alphabetical order, the definition
‘‘Counterfeit information technology
product’’ to read as follows:
39.101
Contract clause.
*
PART 12—ACQUISITION OF
COMMERCIAL ITEMS
39.002
[Amended]
7. Amend section 39.102 by removing
from paragraph (b) ‘‘availability,’’ and
adding ‘‘availability, counterfeit IT
products, performance, security,’’ in its
place.
8. Amend section 39.107 by
designating the undesignated paragraph
as paragraph (a); and adding paragraph
(b) to read as follows:
AUTHENTIC INFORMATION
TECHNOLOGY PRODUCTS—
REPRESENTATION (DATE)
(a) Definition. Counterfeit information
technology product means any item of
information technology (IT), including
hardware and software, that is an
unauthorized copy, replica, or
substitute.
(b) To be eligible for award of the
proposed contract, an offeror must—
(1) Be either the original equipment
manufacturer (OEM); or
(2) Have written authorization from
the OEM or software developer to
function as a distributor or reseller of
the subject products.
(c) By submission of this offer, the
offeror represents that—
(1) The IT products to be sold or
leased to the Government under the
proposed contract are authentic and not
counterfeit; and
(2) It is the original equipment
manufacturer or software developer, or
an authorized distributor or reseller for
the IT products.
(End of provision)
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Frm 00012
Fmt 4702
Sfmt 4702
68375
52.239–YY Authentic Information
Technology Products.
As prescribed in 39.107(b)(2), insert
the following clause:
AUTHENTIC INFORMATION
TECHNOLOGY PRODUCTS (DATE)
(a) Definition. Counterfeit information
technology product means any item of
information technology (IT), including
hardware and software, that is an
unauthorized copy, replica, or
substitute.
(b) The Contractor shall sell to the
Government only IT products that are
authentic and not counterfeit. In the
event that such IT products are
determined to be counterfeit, there is no
limitation to the Contractor’s liability.
(End of clause)
[FR Doc. E8–27275 Filed 11–17–08; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF TRANSPORTATION
Federal Transit Administration
49 CFR Part 605
[Docket No. FTA–2008–0044]
RIN 2132–AB00
School Bus Operations
Federal Transit Administration
(FTA), DOT.
ACTION: Notice of proposed rulemaking.
AGENCY:
SUMMARY: Through this notice, the
Federal Transit Administration (FTA)
proposes to amend its school bus
operations regulations. Most notably,
FTA proposes to clarify several
definitions, amend the school bus
operations complaint procedures, and
implement Section 3023(f) of the Safe,
Accountable, Flexible, Efficient
Transportation Equity Act: A Legacy for
Users (SAFETEA–LU). FTA seeks
comment on this notice from interested
parties.
DATES: Comments must be received by
February 17, 2009. FTA will consider
late filed comments to the extent
practicable.
You may submit comments
by one of the following methods.
• Federal e-Rulemaking Portal:
https://www.regulations.gov. Follow the
online instructions for submitting
comments.
• Fax: 1–202–493–2251.
• U.S. Post or Express Mail: U.S.
Department of Transportation, Docket
Operations, West Building Ground
Floor, Room W12–140, 1200 New Jersey
Avenue, SE., Washington, DC 20590.
• Hand Delivery: The West Building
of the U.S. Department of
ADDRESSES:
E:\FR\FM\18NOP1.SGM
18NOP1
]]>Agencies
[Federal Register Volume 73, Number 223 (Tuesday, November 18, 2008)]
[Proposed Rules]
[Pages 68373-68375]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E8-27275]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 12, 39, and 52
[FAR Case 2008-019; Docket 2008-0001; Sequence 1]
RIN 9000-AL11
Federal Acquisition Regulation; FAR Case 2008-019, Authentic
Information Technology Products
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Advance notice of proposed rulemaking and public meeting.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) are seeking comments from
both Government and industry on whether the Federal Acquisition
Regulation (FAR) should be revised to include a requirement that
contractors selling information technology (IT) products (including
computer hardware and software) represent that such products are
authentic. The Councils are also interested in comments regarding
contractor liability if IT products sold to the Government, by
contractors, are not authentic. Additionally, the Councils are seeking
comments on whether contractors who are resellers or distributors of
computer hardware and software should represent to the Government that
they are authorized by the original equipment manufacturer (OEM) to
sell the information technology products to the Government. Finally,
the Councils invite comments on (1) whether the measures contemplated
above should be extended to other items purchased by the Government;
and (2) whether the rule should apply when information technology is a
component of a system or assembled product.
[[Page 68374]]
DATES: Public Meeting: A public meeting will be held on December 11,
2008, from 9:00 a.m. to 3 p.m. EST, in the National Aeronautics and
Space Administration James E. Webb Memorial Auditorium, 300 E Street
SW, Washington, DC 20546. The visitors' entrance is on the west end of
the building at the corner of 4th and E Streets SW. Attendees are
encouraged to arrive at least thirty minutes early to accommodate
security procedures.
If you wish to make a presentation on this topic, please contact
and submit a copy of your presentation by December 1, 2008, to General
Services Administration, Contract Policy Division (VPC), 1800 F Street,
NW, Room 4040, Attn: Edward N. Chambers, Washington, DC 20405.
Telephone: 202-501-3221.
Submit electronic materials via e-mail to Chambers.Edward@gsa.gov.
Please submit presentations only and cite Public Meeting 2008-019 in
all correspondence related to this public meeting. The submitted
presentations will be the only record of the public meeting. If you
intend to have your presentation considered as a public comment in the
formulation of the proposed rule, the presentation must be submitted
separately as a written comment as instructed below.
Special Accommodations: The public meeting is physically accessible
to people with disabilities. Request for sign language interpretation
or other auxiliary aids should be directed to Edward N. Chambers, at
202-501-3221, at least 5 working days prior to the meeting date.
Comments: Interested parties should submit written comments to the
FAR Secretariat on or before January 20, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAR case 2008-019 by any of
the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2008-019'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2008-
019. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2008-019'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW, Room 4041, ATTN: Laurieann
Duarte, Washington, DC 20405.
Instructions: Please submit comments only and cite FAR case 2008-
019 in all correspondence related to this case. All comments received
will be posted without change to https://www.regulations.gov, including
any personal and/or business confidential information provided.
FOR FURTHER INFORMATION CONTACT Mr. Edward N. Chambers, Procurement
Analyst, at (202) 501-3221 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAR case 2008-019.
SUPPLEMENTARY INFORMATION: The widespread availability of counterfeit
Information Technology (IT) products presents a multidimensional threat
to our nation. While it is estimated that our nation's industries and
governments lose millions of dollars each year to counterfeiters, the
trade in counterfeit IT products also presents serious threats to our
national security and consumer safety.
Today, IT products, such as computer network hardware, (the
infrastructure of business, healthcare, education, and communication
and information networks) and integrated circuits (IC), are used in a
wide range of applications; including automobiles, aircraft, computers,
telecommunications, medical devices, and consumer electronics. These IT
products are also essential to our national infrastructure systems;
such as air traffic control, financial and telecommunication networks,
and government and military communications, information, and operating
systems.
Counterfeit network hardware and ICs pose a risk in that they
frequently do not meet the quality standards of genuine equipment.
Various information indicates that these products have a higher failure
rate than genuine equipment, and often fail upon installation, or weeks
or months after installation. Thus, these counterfeit IT products pose
a threat to the national security and consumer safety because when they
fail, the entire systems in which they are embedded may also fail.
The Councils believe requiring contractors to represent that the IT
products they sell to the Government are authentic, will aid in efforts
to combat counterfeit IT products. In addition to commenting on the
Government proposal, the public and industry are invited to offer
suggestions on other ways to limit the risk to the Government from
acquiring counterfeit IT products.
To facilitate public comment, the Councils have attached
provisional FAR text.
While the focus of this notice is IT products, comments are invited
on (1) whether the measures proposed herein should be expanded to
include other items sold to the Government and (2) whether the rule
should apply when information technology is a component of a system or
assembled product. Further, the provisional text places the OEM in the
role of ``gatekeeper'' as to who is an authorized distributor or
reseller. Is there another party or process which would be more
appropriate to this role? Also, through what means should authorized
status be substantiated? By a letter from the OEM, or a reference on an
OEM website?
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.
List of Subjects in 48 CFR Parts 2, 4, 12, 39, and 52
Government procurement.
Dated: November 12, 2008.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 2, 4,
12, 39, and 52 as set forth below:
1. The authority citation for 48 CFR parts 2, 4, 12, 39, and 52
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--DEFINITIONS OF WORDS AND TERMS
2. Amend section 2.101 in paragraph (b) in the definition
``Information technology'' by revising paragraph (2) to read as
follows:
2.101 Definitions.
* * * * *
(b) * * *
Information technology * * *
(2) The term ``information technology'' includes--
(i) Computers;
(ii) Ancillary equipment (including imaging peripherals, input,
output, and storage devices necessary for security and surveillance);
(iii) Peripheral equipment designed to be controlled by the central
processing unit of a computer;
(iv) Software, firmware and similar products;
(v) Services (including support services); and
[[Page 68375]]
(vi) Related resources.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
3. Amend section 4.1202 by adding paragraph (cc) to read as
follows:
4.1202 Solicitation provisions and contract clauses.
* * * * *
(cc) 52.239-XX, Authentic Information Technology Products--
Representation.
PART 12--ACQUISITION OF COMMERCIAL ITEMS
4. Amend section 12.301 by adding paragraphs (d)(3) and (d)(4) to
read as follows:
12.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
* * * * *
(d) * * *
(3) Insert the provision at 52.239-XX, Authentic Information
Technology Products--Representation, as prescribed at 39.107(b)(1).
(4) Insert the clause at 52.239-YY, Authentic Information
Technology Products, as prescribed at 39.107(b)(2).
* * * * *
PART 39--ACQUISITION OF INFORMATION TECHNOLOGY
5. Amend section 39.002 by adding, in alphabetical order, the
definition ``Counterfeit information technology product'' to read as
follows:
39.002 Definitions.
* * * * *
Counterfeit information technology product means any item of
information technology (IT), including hardware and software, that is
an unauthorized copy, replica, or substitute.
* * * * *
6. Amend section 39.101 by adding paragraph (e) to read as follows:
39.101 Policy.
* * * * *
(e) To protect the Government from procuring counterfeit IT
products, agencies shall ensure that all acquisitions for IT products
are procured from the original equipment manufacturer (OEM), software
developer, or authorized distributor or reseller. Agencies shall ensure
that all solicitations and contracts for the acquisition of IT products
include a requirement for the offeror or contractor to represent that
the IT products being sold under its contract to the Government are not
counterfeit.
39.102 [Amended]
7. Amend section 39.102 by removing from paragraph (b)
``availability,'' and adding ``availability, counterfeit IT products,
performance, security,'' in its place.
8. Amend section 39.107 by designating the undesignated paragraph
as paragraph (a); and adding paragraph (b) to read as follows:
39.107 Contract clause.
* * * * *
(b)(1) The contracting officer shall insert the provision at
52.239-XX, Authentic Information Technology Products--Representation,
in all solicitations for the acquisition of IT products.
(2) The contracting officer shall insert the clause at 52.239-YY,
Authentic Information Technology Products, in all contracts for the
acquisition of IT products.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.239-1 [Amended]
9. Amend section 52.239-1 by removing from the introductory
paragraph ``39.107'' and adding ``39.107(a)'' in its place.
10. Add sections 52.239-XX and 52.239-YY to read as follows:
52.239-XX Authentic Information Technology Products--Representation.
As prescribed in 39.107(b)(1), insert the following provision:
AUTHENTIC INFORMATION TECHNOLOGY PRODUCTS--REPRESENTATION (DATE)
(a) Definition. Counterfeit information technology product means
any item of information technology (IT), including hardware and
software, that is an unauthorized copy, replica, or substitute.
(b) To be eligible for award of the proposed contract, an offeror
must--
(1) Be either the original equipment manufacturer (OEM); or
(2) Have written authorization from the OEM or software developer
to function as a distributor or reseller of the subject products.
(c) By submission of this offer, the offeror represents that--
(1) The IT products to be sold or leased to the Government under
the proposed contract are authentic and not counterfeit; and
(2) It is the original equipment manufacturer or software
developer, or an authorized distributor or reseller for the IT
products.
(End of provision)
52.239-YY Authentic Information Technology Products.
As prescribed in 39.107(b)(2), insert the following clause:
AUTHENTIC INFORMATION TECHNOLOGY PRODUCTS (DATE)
(a) Definition. Counterfeit information technology product means
any item of information technology (IT), including hardware and
software, that is an unauthorized copy, replica, or substitute.
(b) The Contractor shall sell to the Government only IT products
that are authentic and not counterfeit. In the event that such IT
products are determined to be counterfeit, there is no limitation to
the Contractor's liability.
(End of clause)
[FR Doc. E8-27275 Filed 11-17-08; 8:45 am]
BILLING CODE 6820-EP-S
