DATE: October 5, 2004

SUBJECT: Federal Acquisition Circular (FAC) 2001-25, Miscellaneous Amendments

SOURCE: Federal Register, October 5, 2004, Vol. 69, No. 192, page 59697

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

ACTION: Final and Interim Rules

SYNOPSIS: The Federal Acquisition Secretariat is issuing FAC 2001-25 to amend the Federal Acquisition Regulation (FAR) in the following areas: (1) elimination of Standard Form 1417, Pre-Solicitation Notice (Construction Contract); (2) Free Trade Agreements -- Chile and Singapore, and Trade Agreements thresholds; (3) telecommuting for federal contractors; (4) Section 508 micro-purchase exemption; and (5) technical amendments.

DATES: The effective date of these rules is October 5, 2004, except for item (1) which is effective November 4, 2004. Comments on items (3) and (4) must be submitted on or before December 6, 2004.

ADDRESSES: Submit comments on items (3) and (4), identified by "FAC 2001-25, FAR case 2003-025" for item (3), and "FAC 2001-25, FAR case 2004-020" for item (4), to: (1) http://www.regulations.gov; (2) http://www.acqnet.gov/far/ProposedRules/proposed.htm; (3) e-mail: farcase.2003-025@gsa.gov for item (3), and farcase.2004-020@gsa.gov for item (4); (4) fax: 202-501-4067; or (5) mail: General Services Administration, Regulatory Secretariat (MVA), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405.


      Items (1) and (2), Cecelia Davis, 202-219-0202.

      Item (3), Gerald Zaffos, 202-208-6091.

      Item (4), Linda Nelson, 202-501-1900.

For general information, contact the FAR Secretariat, Room 4035, GS Building, Washington, DC 20405, 202-501-4755.

SUPPLEMENTAL INFORMATION: (1) Elimination of Standard Form 1417: This final rule eliminates the use of the Standard Form (SF) 1417, Pre-Solicitation Notice (Construction Contract), which was used in contracts for construction, alteration or repair, dismantling, demolition, or removal of improvements. The use of the form has become unnecessary because contracting officers are required to provide access to presolicitation notices through FedBizOpps (http://www.fedbizopps.gov), where government contract opportunities greater than $25,000 are synopsized.

On September 16, 2003, a proposed rule deleting the SF 1417 was published (see the September 16, 2003, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Elimination of Standard Form 1417"). No comments were received, so the proposed rule is finalized with technical editorial changes.

Besides deleting the SF 1417, the following are removed:

(2) Free Trade Agreements -- Chile and Singapore, and Trade Agreements Thresholds: This finalizes, with changes, the January 7, 2004, interim rule that (a) amended FAR Part 25, Foreign Acquisitions, and the related clauses in FAR Part 52 to implement the the United States-Chile Free Trade Agreement Implementation Act (USCFTA) (Public Law 108-77) and United States-Singapore Free Trade Agreement Implementation Act (USSFTA) (Public Law 108-78); and (b) implemented new dollar thresholds for application of trade agreements as determined by the United States Trade Representative (USTR) (see the January 7, 2004, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 2001-19, SF 330 Effectivity Delay and Free Trade Acts").

To implement Section 106 of the USCFTA and the USSFTA, which requires that contracts must specify the law that will apply to resolve any breach of contract claim, the interim rule added the statement "United States law will apply to resolve any claim of breach of contract" to paragraph (d) of FAR 52.225-3, Buy American Act -- Free Trade Act -- Israeli Trade Act Certificate; paragraph (c) of FAR 52.225-5, Trade Agreements; and paragraph (e) of FAR 52.225-11, Buy American Act -- Construction Materials Under Trade Agreements. However, the Department of Justice noted that Section 106 of each authorizing act applies to all contracts entered into by any agency of the United States. The Department of Justice recommended that the statement be a separate clause that is included in every contract. Therefore, the final rule removes the statement from FAR 52.225-3, FAR 52.225-5, and FAR 52.225-11, and creates a new clause FAR 52.233-4, Applicable Law for Breach of Contract Claim, which is to be included in all solicitations and contracts. It states, "United States law will apply to resolve any claim of breach of this contract."

(3) Telecommuting for Federal Contractors: This interim rule implements Section 1428 of the Services Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136), which prohibits agencies from including a requirement in a solicitation that precludes an offeror from permitting its employees to telecommute or, would reduce the scoring of an offer because the offeror proposes to permit its employees to telecommute, unless the contracting officer determines it would adversely affect agency requirements, such as security (see the November 25, 2003, FEDERAL CONTRACTS DISPATCH "Enactment of the National Defense Authorization Act for Fiscal Year 2004").

This interim rule adds FAR 7.108, Additional Requirements for Telecommuting, which lists the provisions of Section 1428. Also, FAR 7.108 is referenced in FAR 11.002, Policy [on describing agency needs], FAR 13.106-2, Evaluation of Quotations or Offers, and FAR 15.304, Evaluation Factors and Significant Subfactors.

(4) Section 508 Micro-Purchase Exemption: This interim rule amends paragraph (a) of FAR 39.204, Exceptions, to extend the micro-purchase exemption for purchasing electronic and information technology (EIT) that conforms to the requirements of Section 508 of the Rehabilitation Act of 1973 from October 1, 2004, to April 1, 2005.

Section 508 of the Rehabilitation Act of 1973 requires that the EIT developed, procured, maintained, or used by the federal government provide individuals with disabilities access to and use of information and data that is comparable to the access and use of information and data by individuals without disabilities. The law was implemented first through standards developed by the Architectural and Transportation Barriers Compliance Board (see the December 21, 2000, FEDERAL CONTRACTS DISPATCH "Architectural and Transportation Barriers Compliance Board; Electronic and Information Technology Accessibility Standards"), and then incorporated into the FAR as Subpart 39.2, Electronic and Information Technology (see the April 25, 2001, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 97-27, Electronic and Information Technology Accessibility."

Initially, the FAR exempted micropurchases from the 508 requirements until January 1, 2003, because the government personnel who use the government purchase card to buy commercial-off-the-shelf items are not usually contracting officers familiar with Section 508 requirements. Therefore, to give industry time to label its products for Section 508 standards compliance, and to provide more time for training of government purchase card users on Section 508 requirements, this deadline was extended to October 1, 2004 (see the December 31, 2002, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 2001-11, Extensions of FAR Subpart 13.5 and Section 508 Micro-Purchase Exception," Item (2), and the July 24, 2003, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Circular (FAC) 2001-15, Miscellaneous Amendments," Item (7)).

The introduction to the interim rule states, "...no further extensions will be granted. The extension until April 1, 2005, will provide agencies time to update their purchase card training modules on the [Section] 508 requirements and train their personnel. Agencies have had three years of experience with Section 508, and industry continues to make investments in accessible technology to support the requirements." Free online training is available at http://www.section508.gov.

(5) Technical Amendments: Five technical amendments are made by this rule. Four are editorial, such as correct clause dates and eliminate the redundancy in "will be will be" (in paragraph (d)(3) of FAR 52.219-4, Notice of Price Evaluation Preference for HUBZone Small Business Concerns). The single noteworthy change is to paragraph (c) of FAR 14.403, Recording of Bids, in which the name of "Defense Fuel Supply Center" is changed to "Defense Energy Support Center," and "Defense Personnel Support Center" is changed to "Defense Supply Center Philadelphia."

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

Copyright 2004 by Panoptic Enterprises. All Rights Reserved.

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