DATE: January 15, 2004

SUBJECT: Federal Acquisition Regulation (FAR); Commercially Available Off-the-Shelf Items

SOURCE: Federal Register, January 15, 2004, Vol. 69, No. 10 page 2447

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

ACTION: Proposed Rule

SYNOPSIS: It is proposed that the FAR be amended to identify "commercially-available-off-the-shelf" (COTS) items as a subset of "commercial items," and to identify the provisions of law that are inapplicable to contracts for COTS.

EDITOR'S NOTE: For more on the advance notice of proposed rulemaking (ANPR), see the January 30, 2003, FEDERAL CONTRACTS DISPATCH "Federal Acquisition Regulation (FAR); Laws Inapplicable to Acquisitions of Commercially Available Off-the-Shelf Items."

DATES: Comments are due on or before March 15, 2004.

ADDRESSES: Submit comments to General Services Administration, FAR Secretariat (MVP), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, Washington, DC 20405, or by e-mail to farcase.2000-305@gsa.gov. Cite "FAR Case 2000-305" in all correspondence related to this proposed rule.

FOR FURTHER INFORMATION CONTACT: Gerald Zaffos, 202-208-6091.

SUPPLEMENTAL INFORMATION: Certain laws have already been determined to be inapplicable to all commercial items as a result of the implementation of the Federal Acquisition Streamlining Act of 1994 (see FAR 12.503, Applicability of Certain Laws to Executive Agency Contracts for the Acquisition of Commercial Items). Section 4203 of the Federal Acquisition Reform Act (part of the Clinger-Cohen Act), requires that the FAR list the provisions of law that are inapplicable to contracts for COTS items, but the list of statutes cannot include a provision of law that provides for criminal or civil penalties.

On January 30, 2003, an ANPR was published that listed additional provisions of law that could be determined inapplicable to COTS, and comments were solicited. Seven respondents submitted comments, including the U.S. Trade Representative, the Department of Labor, and several other agencies, and their concerns are recognized. However, the proposed rule lists the universe of laws that could be determined inapplicable to COTS, and comments are being sought that will help the administrator of the Office of Federal Procurement Policy (OFPP) make the statutory determination that it would be in the best interest of the government to maintain the applicability of certain of those laws.

The following changes to the FAR are being proposed:

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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