DATE: March 20, 2002

SUBJECT: Federal Acquisition Circular (FAC) 2001-06, Miscellaneous Amendments

SOURCE: Federal Register, March 20, 2002, Vol. 67, No. 54, page 13047

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Final Rules

SYNOPSIS: The Federal Acquisition Regulatory Council is issuing FAC 2001-06 to amend the Federal Acquisition Regulation (FAR) in the following areas: (1) commercial items -- Standard Form 1449; (2) definitions for "contract action" and contracting action"; (3) definitions for sealed bid and negotiated procurements; (4) procurement integrity rewrite; (5) acquisition of helium; (6) Historically Underutilzed Business Zone (HUBZone) program applicability; (7) application of labor clauses; and (8) technical amendments.

EFFECTIVE DATES: All items are effective April 4, 2002.


     Items (1) and (2), Victoria Moss at 202-501-4764.

     Items (3) and (4), Ralph DeStefano at 202-501-1758.

     Items (5) and (7), Linda Nelson at 202-501-1900.

     Item (6), Rhonda Cundiff at 202-501-0044.

For more information on the technical amendments or for general information, contact the FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, 202-501-4755.

SUPPLEMENTAL INFORMATION: (1) Commercial Items -- Standard Form 1449: This rule makes several minor revisions to the Standard Form 1449, Solicitation/Contract/Order for Commercial Items: adding a block to indicate that the acquisition is a HUBZone set-aside (in Block 10, This Acquisition Is); substituting North American Industry Classification System (NAICS) codes for Standard Industrial Classification (SIC) codes (also in Block 10); adding to Block 29, Award of Contract, a place for the contracting officer to specify which items in the offer are being ordered; and the addition of blocks in the area of the form used as a receiving report by the government (new Block 32d, printed name and title of authorized government representative; Block 32e, mailing address of the representative; Block 32f, telephone number of the representative; and Block 32g, e-mail of the representative). All of the changes involve blocks that are completed by the government.

(2) Definitions for "Contract Action" and "Contracting Action": This rule amends the FAR to eliminate inconsistencies in the use of the terms "contract action" and "contracting action" by changing the term "contracting action" to "contract action" throughout the FAR.

A proposed rule was published May 31, 2000, and one comment was submitted. As a result, the definition for "contracting action" (changed to "contract action") is retained in FAR 5.001, Definition, and the definition of "contract action" is retained in FAR 32.001, Definitions. This is because the definition of "contract" in FAR 2.101, Definitions, includes contract modifications, but the definitions in FAR 5.001 and FAR 32.001 expressly exclude contract modifications from the scope of FAR Part 5, Publicizing Contract Actions, and FAR Part 32, Contract Financing, respectively. (EDITOR'S NOTE: For more on the proposed rule, see the May 31, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Definitions for "Contract Action" and "Contracting Action.")

(3) Definitions for Sealed Bid and Negotiated Procurements: This rule provides consistent definitions for sealed bids and negotiated procurements by making the following changes:

Furthermore, every instance where the terms "offeror," "prospective offeror," and "potential offeror" are used in the FAR was reviewed, and it was found that the use of the term "prospective offeror" is not used properly in paragraph (f) of FAR 15.201, Exchanges with Industry Before Receipt of Proposals, paragraph (e) of FAR 15.609, Limited Use of Data, and paragraph (g) of FAR 35.007, Solicitations. The FAR uses "prospective offeror" to mean an entity that is actively seeking a contract. However, since these paragraphs describe processes that are intended to insure fair and open competition, they cover all interested parties, not just those activity seeking a contract. Therefore, the more general term "potential offeror" is substituted for "prospective offeror" in these paragraphs.

A proposed rule was published July 11, 2000. Four respondents submitted comments, and minor editorial changes were made to the final rule as a result. (EDITOR'S NOTE: For more on the proposed rule, see the July 11, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Definitions for Sealed Bid and Negotiated Procurements.")

(4) Procurement Integrity Rewrite: This rule reorganizes and simplifies FAR 3.104, Procurement Integrity, which implements prohibitions, restrictions, and other requirements of the Procurement Integrity Act that are placed on certain agency officials that participate in federal procurements. However, other statutes and regulations also govern the conduct of government employees. In particular, Office of Government Ethics regulations provide guidance on other prohibitions that also apply to government employees who participate in procurement activities during the conduct of a federal procurement. Therefore, FAR 3.104 is also revised to alert agency officials that they may be precluded from participating in a procurement by these other statutes and regulations even if they are not "participating personally and substantially" in the procurement as defined in FAR 3.104. These alerts are in paragraph (b) of revised FAR 3.104-2, General, paragraph (c) of revised FAR 3.104-3, Statutory and Related Prohibitions, Restrictions, and Requirements, and paragraph (a) of FAR 3.104-5, Disqualification.

In addition, the definition of "source selection information" is moved from FAR 3.104-1, Definitions (formerly FAR 3.104-3), to FAR 2.101, Definitions.

A proposed rule was published March 29, 2000. Seven respondents submitted comments, and several changes were made to the final rule as a result. The most significant change is the addition of a clarification to FAR 3.104-5(a) that employment contacts through agents are subject to disqualification. (EDITOR'S NOTE: For more on the proposed rule, see the March 30, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Procurement Integrity Rewrite.")

(5) Acquisition of Helium: This rule amends FAR Subpart 8.5, Acquisition of Helium, and FAR 52.208-8, Helium Requirement Forecast and Required Sources for Helium, to implement the Helium Privatization Act of 1996 (Public Law 104-273) and the U.S. Department of the Interior's 1998 rule regarding helium contracts, as follows:

A proposed rule was published on January 11, 2001. The Department of the Interior submitted the sole comment, and it recommended that "Amarillo Field Office" be added to the address in the definition of "Bureau of Land Management" in FAR 8.501 and FAR 52.208-8(a). This change was made in the final rule. For more on the proposed rule, see the January 11, 2001, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Acquisition of Helium."

(6) HUBZone Program Applicability: The HUBZone Act of 1997 (Title VI of Public Law 105-135) expanded the applicability of the HUBZone program from ten agencies to all agencies effective October 1, 2000. However, several portions of the FAR still referred to "agencies subject to the requirements of the HUBZone Act." Therefore, this final rule amends FAR 19.1302, Applicability, to remove the names of the ten agencies, so that all that remains is "The procedures in this subpart apply to all federal agencies that employ one or more contracting officers." In addition, it removes Alternate III of FAR 52.212-3, Offeror Representations and Certifications -- Commercial Items, and Alternate I of FAR 52.219-1, Small Business Program Representations, both of which only applied to the ten agencies, and moves the language in these alternate representations to the body of the provisions.

(7) Application of Labor Clauses: This rule revises FAR 52.213-4, Terms and Conditions -- Simplified Acquisitions (Other Than Commercial Items), to clarify the application of labor clauses below the $100,000 simplified acquisition threshold.

Paragraph (a) of FAR 52.213-4 lists all the FAR clauses with which the contractor is required to comply, and paragraph (b) lists all the FAR clauses with which the contractor is required to comply "unless the circumstances do not apply". This rule moves FAR 52.222-21, Prohibition of Segregated Facilities, and FAR 52.222-26, Equal Opportunity, from paragraph (b) to paragraph (a).

In addition, paragraphs (b)(1)(i), (b)(1)(iv), and (b)(1)(vi) of FAR 52.213-4 are revised to clarify the geographic applicability of various labor clauses: FAR 52.222-20, Walsh-Healey Public Contracts Act ("United States, Puerto Rico, or the U.S. Virgin Islands"); FAR 52.222-36, Affirmative Action for Workers with Disabilities (29 U.S.C. 793) ("the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island"); and FAR 52.222-41, Service Contract Act of 1965, As Amended (41 U.S.C. 351, et seq.) ("United States, District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, Johnston Island, Wake Island, or the outer continental shelf lands"). Also, a new paragraph (a) is added to FAR 52.222-26, Equal Opportunity, to clarify its geographic applicability ("the 50 States, the District of Columbia, Puerto Rico, the Northern Mariana Islands, American Samoa, Guam, the U.S. Virgin Islands, and Wake Island").

A proposed rule was published October 26, 2000. Two respondents submitted comments, but no changes were made to the final rule as a result of those comments. For more on the proposed rule, see the October 26, 2000, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Application of Labor Clauses."

(8) Technical Amendments: This makes various changes to the FAR to update references and make editorial changes. For example, in paragraph (c) of FAR 1.404, Class Deviations, and FAR 31.101, Objectives, the National Aeronautics and Space Administration's "Associate Administrator for Procurement" is changed to "Assistant Administrator for Procurement"; and in paragraph (b)(2) of FAR 6.302-5, Authorized or Required by Statute, the word "Handicapped" is changed to "Disabled."

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2002 by Panoptic Enterprises. All Rights Reserved.

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