Federal Acquisition Regulation; FAR Case 2004-038, Federal Procurement Data System (FPDS), 2712-2713 [E9-556]
Download as PDF
<![CDATA[
2712
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 12, and 52
[FAC 2005–30; FAR Case 2004–038, Item
I;Docket 2008–0001; Sequence 6]
RIN 9000–AK94
Federal Acquisition Regulation; FAR
Case 2004–038, Federal Procurement
Data System (FPDS)
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
sroberts on PROD1PC70 with RULES
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have adopted as final, with
one minor change, the interim rule
amending the Federal Acquisition
Regulation (FAR) to revise the process
for reporting contract actions to the
Federal Procurement Data System
(FPDS). This final rule revises the
definition of indefinite delivery vehicle
at FAR 4.601.
DATES: Effective Date: February 17,
2009.
FOR FURTHER INFORMATION CONTACT: Mr.
Ernest Woodson, Procurement Analyst,
at (202) 501–3775 for clarification of
content. For information pertaining to
status or publication schedules, contact
the FAR Secretariat at (202) 501–4755.
Please cite FAC 2005–30, FAR case
2004–038.
SUPPLEMENTARY INFORMATION:
A. Background
As of October 2003, all agencies were
to begin reporting FAR-based contract
actions to the modified system. During
Fiscal Year 2004, members of the
interagency Change Control Board, as
well as departmental teams working on
the migration of data from the old to
new system, recognized both the
opportunity to standardize reporting
processes and the need to revise the
FAR to provide current and clear
reporting requirements.
DoD, GSA, and NASA published an
interim rule in the Federal Register at
73 FR 21773, on April 22, 2008. The
interim rule established the
Government’s commitment for Federal
Procurement Data System (FPDS) data
to serve as the single authoritative
source of all procurement data for a host
VerDate Nov<24>2008
18:43 Jan 14, 2009
Jkt 217001
of applications and reports, such as the
Central Contractor Registration (CCR),
the Electronic Subcontracting Reporting
System (eSRS), the Small Business
Goaling Report (SBGR), and Resource
Conservation and Recovery Act (RCRA)
data. The public comment period closed
on June 23, 2008. Four respondents
submitted comments on the interim
rule. A discussion of the comments and
the changes made to the rule as a result
of those comments are provided below:
1. One respondent commented that
FAR 4.602(a) through (c) contains little
value for a reader consulting the FAR
for guidance on what to do and when
or how to do it. The respondent
recommends deleting 4.602 and
renumbering remaining paragraphs.
Response: The Councils disagree with
the comment. FAR section 4.602 was
added to provide general information
about contract reporting. The section
identifies FPDS as the Government’s
web-based tool for reporting contract
actions. In addition, it provides a list of
the many uses of the data provided by
FPDS and cites the FPDS web site. The
Councils consider this type of
information to be very useful for the
acquisition community and indicates
the degree of importance placed on
reporting contract actions. Language
regarding procedures and reporting
actions (what to do and when or how to
do it) may be found at FAR 4.605 and
4.606. Therefore, FAR 4.602 remains
unchanged.
2. One respondent commented that
FAR 4.603(a) seemed to be needless and
out of place. FPDS preceded Federal
Funding and Transparency Act of 2006
(FFATA) by many years and does not
meet the public access requirements
articulated in FFATA. The respondent
recommends deleting this section and
renumbering remaining subparagraphs.
Response: The Councils disagree with
the comment. FAR 4.603(a) is a Federal
contract policy statement indicating that
the FFATA requires that all Federal
award data must be publicly accessible.
FPDS data is made accessible to the
public, satisfying the certain basic
requirements of FFATA. Therefore, this
paragraph remains unchanged.
3. One respondent stated that FAR
4.601 defines indefinite delivery vehicle
(IDV). Since IDV is more encompassing
than an indefinite delivery contract
(IDC), the respondent recommends
finding another word for ‘‘vehicle’’ or
changing the definition to read
‘‘Indefinite delivery vehicle (IDV) means
an indefinite delivery contract or
agreement that has one or more…’’
Response: The Councils agree that the
definition should be clarified. As
indicated at FAR 4.606(a)(ii), examples
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
of IDVs, for the purposes of the FPDS,
include task and delivery order
contracts (including Governmentwide
acquisition contracts and multi-agency
contracts), GSA Federal supply
schedules, Blanket Purchase
Agreements, Basic Ordering
Agreements, or any other agreement or
contract against which individual orders
or purchases may be placed.
Accordingly, the Councils revised the
definition of ‘‘Indefinite delivery
vehicle (IDV)’’ at FAR 4.601 to include
the words ‘‘or agreement.’’
4. One respondent recommends that
references to generic DUNS be removed
from FAR 4.605(b)(1) and (2). To
prevent generic DUNS abuse, the FPDS
Change Control Board voted to not post
generic DUNS on the FPDS website.
Each Agency would be responsible for
communicating what generic DUNS, if
any, should be used.
Response: The Councils disagree with
the comment. The Councils understand
agencies responsibilities associated with
deciding which generic DUNS number
to use, however, a DUNS number is
required to complete a contract action
report in FPDS. FAR procedures at
4.605(b) permit the use of generic DUNS
numbers and do not interfere with
agency responsibilities, as agreed to by
the FPDS Change Control Board. A
generic DUNS number may be used
under the circumstances referenced at
FAR 4.605(b)(1). FAR procedures at
4.605(b) remain unchanged.
5. One respondent submitted a
comment in reference to FAR Case
2005–040, Electronic Subcontracting
Reporting System (eSRS).
Response: This comment is not
relevant to FAR Case 2004–038 and was
referred to the FAR Small Business
Team for disposition.
6. One respondent submitted a
comment in reference to the Federal
Register notice, Background, paragraph
5, stating that reporting only the
appropriated portions of contract
actions would be extremely impractical
and result in data mismatches between
automated contracting writing systems
and FPDS. The respondent indicated
that they have many actions that have
mixed funding and it would be difficult
for contracting staff to identify whether
funding was appropriated or nonappropriated. In order to comply with
the rule, data would have to be
manually entered into FPDS.
Response: The Councils disagree with
the comment. FAR 4.606(b)(2) states
that agencies may submit actions for any
non-appropriated fund (NAF) or NAF
portion of a contract action using a mix
of appropriated and non-appropriated
funding, after contacting the FPDS
E:\FR\FM\15JAR3.SGM
15JAR3
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations
Program Office. It should be noted that
reporting non-appropriated funds may
impact certain reports generated using
FPDS data regarding appropriated
funds. FAR language remains
unchanged.
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.
DEPARTMENT OF DEFENSE
B. Regulatory Flexibility Act
Federal Acquisition Regulation; FAR
Case 2000–305, Commercially
Available Off-the-Shelf (COTS) Items
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
contract reporting is not accomplished
by the vendor community, only by
Government contracting entities.
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 1, 2, 4,
12, and 52
Government procurement.
Dated: December 24, 2008
Edward Loeb,
Acting Director, Office of Acquisition Policy.
Accordingly, DoD, GSA, and NASA
adopt the interim rule amending 48 CFR
parts 1, 2, 4, 12, and 52, which was
published in the Federal Register at 73
FR 21773, April 22, 2008, as a final rule
with the following change:
■
PART 4—ADMINISTRATIVE MATTERS
1. The authority citation for 48 CFR
part 4 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).
4.601
[Amended]
2. Amend section 4.601 by removing
from the introductory paragraph of the
definition ‘‘Indefinite delivery vehicle
(IDV)’’ the word ‘‘contract’’ and adding
‘‘contract or agreement’’ in its place.
sroberts on PROD1PC70 with RULES
■
[FR Doc. E9–556 Filed 1–14–09; 8:45 am]
BILLING CODE 6820–EP–S
VerDate Nov<24>2008
18:43 Jan 14, 2009
Jkt 217001
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 2, 3, 12, 23, 25, and 52
[FAC 2005–30; FAR Case 2000–305; Item
II; Docket 2009-0001; Sequence 1]
RIN 9000–AJ55
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 implement Section
4203 of the Clinger-Cohen Act of 1996
(41 U.S.C. 431) (the Act) with respect to
the inapplicability of certain laws to
contracts and subcontracts for the
acquisition of commercially available
off-the-shelf (COTS) items.
DATES: Effective Date: February 17,
2009.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael Jackson, Procurement Analyst,
at (202) 208–4949 for clarification of
content. For information pertaining to
status or publication schedules, contact
the FAR Secretariat at (202) 501–4755.
Please cite FAC 2005–30, FAR case
2000–305.
SUPPLEMENTARY INFORMATION:
A. Background
Section 35 of the Office of Federal
Procurement Policy (OFPP) Act (41
U.S.C. 431) requires that the Federal
Acquisition Regulation (FAR) include a
list of provisions of law that are
inapplicable to contracts for the
acquisition of commercially available
off-the-shelf (COTS) items. Certain laws
cannot be exempt from the acquisition
of COTS and they include laws that—
• Provide for criminal or civil
penalties;
• Specifically refer to 41 U.S.C. 431
and the laws state that it applies to
COTS;
• Provide for a bid protest procedure
or small business preference listed at 41
U.S.C. 431(a)(3); or
• Are applicable because the
Administrator of OFPP makes a written
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
2713
determination that it would not be in
the best interest of the United States to
exempt such COTS contracts from the
applicability of the laws.
In order to implement section 4203 of
the Clinger-Cohen Act of 1996, DoD,
GSA, and NASA published an advanced
notice of proposed rule (ANPR) in the
Federal Register at 68 FR 4874, January
30, 2003. The ANPR listed provisions
that may be inapplicable to the
acquisition of COTS items, and
requested public comment. (A prior
ANPR had been issued under FAR Case
96–308.) The Councils published a
proposed rule at 69 FR 2448, January 15,
2004. The comment period closed on
March 15, 2004. The Councils received
comments from 56 respondents, of
which 3 were duplicates. The comments
were thoroughly examined by the FAR
Acquisition Law Team, Civilian Agency
Acquisition Council (CAAC), and
Defense Acquisition Regulations
Council (DARC).
B. Definition of COTS.
The Councils received several
comments on the definition of COTS.
1. Include services/IT in the
definition. One respondent suggested
that the definition of COTS item should
delete the words ‘‘of supply’’ from the
definition. The respondent states that
this is not part of the statutory
definition. Further, three respondents
commented that definition of COTS
should specifically include services.
Another respondent suggested
additional language in the definition of
COTS to address software and other
information technology products.
Response: The statute defines ‘‘COTS
item’’ as an item that ‘‘Is a commercial
item as described in section 4(12)(A).’’
‘‘Commercial item’’ is defined at 41
U.S.C. 403(12). Paragraph (A) of that
definition reads as follows:
‘‘Any item, other than real property,
that is of a type customarily used by the
general public or by non-governmental
purposes, and that—
(i) Has been sold, leased, or licensed
to the general public; or
(ii) Has been offered for sale, lease or
license to the general public.’’
Paragraphs (F) and (G) of the
definition deal with commercial
services. These paragraphs were not
referenced in the statutory definition of
a COTS item. Services are therefore
necessarily excluded from the
definition. To make the definition
clearer, the reference to the definition of
commercial item has been revised to
point to the first paragraph of the
definition of commercial item.
The Councils have clarified that the
words ‘‘of supply’’ include
E:\FR\FM\15JAR3.SGM
15JAR3
]]>Agencies
[Federal Register Volume 74, Number 10 (Thursday, January 15, 2009)]
[Rules and Regulations]
[Pages 2712-2713]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-556]
[[Page 2712]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 1, 2, 4, 12, and 52
[FAC 2005-30; FAR Case 2004-038, Item I;Docket 2008-0001; Sequence 6]
RIN 9000-AK94
Federal Acquisition Regulation; FAR Case 2004-038, Federal
Procurement Data System (FPDS)
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 adopted as final, with
one minor change, the interim rule amending the Federal Acquisition
Regulation (FAR) to revise the process for reporting contract actions
to the Federal Procurement Data System (FPDS). This final rule revises
the definition of indefinite delivery vehicle at FAR 4.601.
DATES: Effective Date: February 17, 2009.
FOR FURTHER INFORMATION CONTACT: Mr. Ernest Woodson, Procurement
Analyst, at (202) 501-3775 for clarification of content. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-30, FAR case
2004-038.
SUPPLEMENTARY INFORMATION:
A. Background
As of October 2003, all agencies were to begin reporting FAR-based
contract actions to the modified system. During Fiscal Year 2004,
members of the interagency Change Control Board, as well as
departmental teams working on the migration of data from the old to new
system, recognized both the opportunity to standardize reporting
processes and the need to revise the FAR to provide current and clear
reporting requirements.
DoD, GSA, and NASA published an interim rule in the Federal
Register at 73 FR 21773, on April 22, 2008. The interim rule
established the Government's commitment for Federal Procurement Data
System (FPDS) data to serve as the single authoritative source of all
procurement data for a host of applications and reports, such as the
Central Contractor Registration (CCR), the Electronic Subcontracting
Reporting System (eSRS), the Small Business Goaling Report (SBGR), and
Resource Conservation and Recovery Act (RCRA) data. The public comment
period closed on June 23, 2008. Four respondents submitted comments on
the interim rule. A discussion of the comments and the changes made to
the rule as a result of those comments are provided below:
1. One respondent commented that FAR 4.602(a) through (c) contains
little value for a reader consulting the FAR for guidance on what to do
and when or how to do it. The respondent recommends deleting 4.602 and
renumbering remaining paragraphs.
Response: The Councils disagree with the comment. FAR section 4.602
was added to provide general information about contract reporting. The
section identifies FPDS as the Government's web-based tool for
reporting contract actions. In addition, it provides a list of the many
uses of the data provided by FPDS and cites the FPDS web site. The
Councils consider this type of information to be very useful for the
acquisition community and indicates the degree of importance placed on
reporting contract actions. Language regarding procedures and reporting
actions (what to do and when or how to do it) may be found at FAR 4.605
and 4.606. Therefore, FAR 4.602 remains unchanged.
2. One respondent commented that FAR 4.603(a) seemed to be needless
and out of place. FPDS preceded Federal Funding and Transparency Act of
2006 (FFATA) by many years and does not meet the public access
requirements articulated in FFATA. The respondent recommends deleting
this section and renumbering remaining subparagraphs.
Response: The Councils disagree with the comment. FAR 4.603(a) is a
Federal contract policy statement indicating that the FFATA requires
that all Federal award data must be publicly accessible. FPDS data is
made accessible to the public, satisfying the certain basic
requirements of FFATA. Therefore, this paragraph remains unchanged.
3. One respondent stated that FAR 4.601 defines indefinite delivery
vehicle (IDV). Since IDV is more encompassing than an indefinite
delivery contract (IDC), the respondent recommends finding another word
for ``vehicle'' or changing the definition to read ``Indefinite
delivery vehicle (IDV) means an indefinite delivery contract or
agreement that has one or more[hellip]''
Response: The Councils agree that the definition should be
clarified. As indicated at FAR 4.606(a)(ii), examples of IDVs, for the
purposes of the FPDS, include task and delivery order contracts
(including Governmentwide acquisition contracts and multi-agency
contracts), GSA Federal supply schedules, Blanket Purchase Agreements,
Basic Ordering Agreements, or any other agreement or contract against
which individual orders or purchases may be placed. Accordingly, the
Councils revised the definition of ``Indefinite delivery vehicle
(IDV)'' at FAR 4.601 to include the words ``or agreement.''
4. One respondent recommends that references to generic DUNS be
removed from FAR 4.605(b)(1) and (2). To prevent generic DUNS abuse,
the FPDS Change Control Board voted to not post generic DUNS on the
FPDS website. Each Agency would be responsible for communicating what
generic DUNS, if any, should be used.
Response: The Councils disagree with the comment. The Councils
understand agencies responsibilities associated with deciding which
generic DUNS number to use, however, a DUNS number is required to
complete a contract action report in FPDS. FAR procedures at 4.605(b)
permit the use of generic DUNS numbers and do not interfere with agency
responsibilities, as agreed to by the FPDS Change Control Board. A
generic DUNS number may be used under the circumstances referenced at
FAR 4.605(b)(1). FAR procedures at 4.605(b) remain unchanged.
5. One respondent submitted a comment in reference to FAR Case
2005-040, Electronic Subcontracting Reporting System (eSRS).
Response: This comment is not relevant to FAR Case 2004-038 and was
referred to the FAR Small Business Team for disposition.
6. One respondent submitted a comment in reference to the Federal
Register notice, Background, paragraph 5, stating that reporting only
the appropriated portions of contract actions would be extremely
impractical and result in data mismatches between automated contracting
writing systems and FPDS. The respondent indicated that they have many
actions that have mixed funding and it would be difficult for
contracting staff to identify whether funding was appropriated or non-
appropriated. In order to comply with the rule, data would have to be
manually entered into FPDS.
Response: The Councils disagree with the comment. FAR 4.606(b)(2)
states that agencies may submit actions for any non-appropriated fund
(NAF) or NAF portion of a contract action using a mix of appropriated
and non-appropriated funding, after contacting the FPDS
[[Page 2713]]
Program Office. It should be noted that reporting non-appropriated
funds may impact certain reports generated using FPDS data regarding
appropriated funds. FAR language remains unchanged.
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 contract reporting is
not accomplished by the vendor community, only by Government
contracting entities.
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 1, 2, 4, 12, and 52
Government procurement.
Dated: December 24, 2008
Edward Loeb,
Acting Director, Office of Acquisition Policy.
0
Accordingly, DoD, GSA, and NASA adopt the interim rule amending 48 CFR
parts 1, 2, 4, 12, and 52, which was published in the Federal Register
at 73 FR 21773, April 22, 2008, as a final rule with the following
change:
PART 4--ADMINISTRATIVE MATTERS
0
1. The authority citation for 48 CFR part 4 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).
4.601 [Amended]
0
2. Amend section 4.601 by removing from the introductory paragraph of
the definition ``Indefinite delivery vehicle (IDV)'' the word
``contract'' and adding ``contract or agreement'' in its place.
[FR Doc. E9-556 Filed 1-14-09; 8:45 am]
BILLING CODE 6820-EP-S
