Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 76341

transform itself to more effectively 

achieve its mission.

Item VI—Applicability of the Cost 

Principles and Penalties for 

Unallowable Costs (FAR Case 2001–

018)

This final rule increases the threshold 

at FAR 42.709(b) and FAR 42.709–6 

from $500,000 to $550,000 for contracts 

subject to penalties if a contractor 

includes expressly unallowable costs in 

a claim for reimbursement. The 

threshold was increased to reflect 

inflation and is authorized by 10 U.S.C. 

2324(l) and 41 U.S.C. 256(l).

The rule is of importance to 

contracting officers and contractors who 

negotiate contracts and modifications, 

and determine costs in accordance with 

FAR Part 31 contract cost principles.

Item VII—Technical Amendments

Editorial changes are made at FAR 

11.201(d)(2)(i), 41.301(a), 44.203(b)(1), 

51.102(c)(1), and in the introductory 

text of FAR provision 52.219–1 in order 

to update references.

Dated: December 9, 2004. 

Laura Auletta, 

Director, Contract Policy Division.

Federal Acquisition Circular

Federal Acquisition Circular (FAC) 

2001-26 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator for the National 

Aeronautics and Space Administration.

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2001-26 is effective December 

20, 2004, except for Item I, which is 

effective January 1, 2005, and Items II, 

III, V, and VI, which are effective 

January 19, 2005.

Dated: December 6, 2004. 

Deidre A. Lee, 

Director, Defense Procurement and 

Acquisition Policy.

Dated: December 8, 2004. 

David A. Drabkin, 

Senior Procurement Executive, Office of the 

Chief Acquisition Officer, General Services 

Administration.

Dated: December 2, 2004. 

Tom Luedtke, 

Deputy Chief Acquisition Officer, National 

Aeronautics and Space Administration.

[FR Doc. 04–27632 Filed 12–17–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 2, 4, 14, 15, and 52

[FAC 2001–26; FAR Case 2002–024; Item 

I]

RIN 9000–AJ80

Federal Acquisition Regulation; 

Electronic Representations and 

Certifications

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 require offerors to 

submit representations and 

certifications electronically via the 

Business Partner Network (BPN), unless 

certain exceptions apply.

DATES: Effective Date: January 1, 2005.

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755 for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Mr. Gerald Zaffos, 

Procurement Analyst, at (202) 501–

6091. Please cite FAC 2001–26, FAR 

case 2002–024.

SUPPLEMENTARY INFORMATION:

A. Background

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

69 FR 4012, January 27, 2004. The 60–

day comment period for the proposed 

rule ended March 29, 2004. Forty-five 

comments were received. Some of the 

comments merely agreed with the 

concept of ORCA; others pointed out 

typographical errors. The substantive 

comments are discussed below.

1. Comment: Should a contracting 

officer check for paper reps and certs 

and, failing to find them, check for 

electronic ones? Or, should a 

contracting officer only check for 

electronic ones if the offeror falls within 

a particular class of small business?

Council’s response: The inclusion of 

the FAR provisions at 52.204–8 or 

52.212–3(j) (as described in the final 

rule) in a solicitation would alert both 

the vendor and the contracting officer 

that the electronic completion of 

representations and certifications on the 

Online Representations and 

Certifications Application (ORCA) 

module is required for the specific 

contracting action.

2. Comment: Without reps and certs, 

how would a Contracting Officer know 

what class of small business an offeror 

is?

Council’s response: ORCA includes 

the socio-economic representations and 

certifications (such as FAR 52.219–1, 

Small Business Program 

Representations.) A vendor would 

revise its responses in either FAR 

52.204–8 or 52.212–3(j) (as described in 

the final rule) if its responses in ORCA 

is incorrect for the present solicitation.

3. Comment: The possibility of 

parallel paper and electronic systems 

offers myriad chances for error. What if 

paper and electronic versions differ? 

What if an offeror from the class of 

small businesses not required to build 

an electronic record chooses to build an 

electronic record? What if someone 

required to build an electronic record 

submits paper reps and certs instead?

Council’s response: The provisions at 

FAR 52.204–8 and 52.212–3(j) make it 

clear that vendors are required to 

complete the representations and 

certifications in ORCA. Those 

certifications and representations would 

take precedence over any other 

representations and certifications 

received (for the same provisions 

included in ORCA) for the specific 

contract action unless the offeror 

indicates he is amending those answers 

in accordance with the referenced 

provisions.

4. Comment: Since contractors are 

currently using the CCR database, the 

EEO database, PRO-Net, and EPLS 

(consolidated under ‘‘BPN.com’’), will 

there be a future consideration for a 

contractor to have access and use the 

contractor’s reps and certs rather than 

have the contractor continuing to 

request a new reps and certs package for 

the same sources that are on the ‘‘BPN’’

reps and certs database?

Council’s response: Vendors will have 

access to ORCA. Please also note that 

the PRO-Net system has been retired, 

with its key capabilities being 

incorporated into CCR.

5. Comment: An additional 

clarification at FAR 12.301 is needed for 

oral solicitations. FAR 13.106–1(c) 

states the contracting officer shall solicit 

quotations orally to the maximum 

extent practicable. FAR 5.101(a)(2)(ii) 

exempts contracting officers from 

posting $10K-$25K requirements if oral 

solicitations are used. Otherwise, the 

requirement has to be posted for 10 

days - a millennium in the customer’s 

76342 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

eyes. In contrast, FAR 12.301(a)(2) says 

we have to use FAR 52.212–3, Offeror 

Representations and Certifications—

Commercial Items, in all commercial 

solicitations. Recommend verbiage be 

added to stating, ‘‘...other than oral...’’

just before the first ‘‘solicitation’’ in 

FAR 12.301(b). It would then read, ‘‘To 

implement this Act, the contracting 

officer shall insert the following 

provisions in other than oral 

solicitations for ....’’ If this isn’t the best 

place for it, then I would recommend 

similar verbiage in FAR 12.301(b)(2) to 

clear up this ambiguity.

Council’s response: This comment 

will be separately considered by the 

Councils for appropriate action.

6. Comment: The requirement for a 

physical affirmation (check box) that the 

representations and certifications posted 

to BPN are current appears unnecessary. 

Respondent recommends the following 

language: ‘‘The Offeror has completed 

the annual representations and 

certifications electronically via the 

Business Partner Network (BPN) web 

site at http://orca.bpn.gov, however, 

submits the following changes 

pertaining to this specific solicitation as 

identified below (insert changes, 

identifying change by clause number, 

title, and date). These amended 

representation(s) and/or certifications 

are also incorporated in this offer and 

are current, accurate, and complete as of 

the date of this proposal.’’ This (a) 

addresses the true intent of the 

proposed language; (b) eliminates 

additional physical check boxes; and (c) 

reinforces the fact that the vendor is 

being held responsible for the currency 

of their online reps and certs 

information.

Council’s response: We concur and 

have revised the applicable provisions 

accordingly.

7. Comment: Should FAR 52.222–38, 

Compliance with Veteran’s Employment 

Reporting Requirements, be included in 

FAR 14.213(b)?

Council’s response: We concur. The 

final rule and ORCA reflect the addition 

of this provision.

8. Comment: Can the electronic 

representations and certifications be 

incorporated with the Central 

Contractor Registration (CCR) file so as 

not to cause an additional burden on 

contractors already registered in the 

CCR?

Council’s response: The ORCA 

portion of the BPN was built to 

supplement the data in CCR. Because 

CCR is now used for more than 

contracting purposes, we decided to not 

require additional representation and 

certification information from all CCR 

registrants, as it is only necessary for 

contracting offices. To alleviate the 

burden on the vendors, company 

information collected in CCR is 

electronically provided and prepopulated into ORCA. The vendor is not 

asked to re-enter any information that is 

found in CCR. The only information the 

vendor needs to supply in ORCA is 

directly related to representations and 

certifications.

9. Comment: Our contracts are for low 

dollar amounts and I cannot see the 

contractors doing all this preliminary 

work just for a small amount of business 

for them. All of this may work for higher 

dollar business. Can there be a dollar 

value attached?

Council’s response: The provisions 

included in ORCA have applicability at 

different dollar values with the majority 

applying to items over the micropurchase level. As such, ORCA must be 

applied to all acquisitions over the 

micro-purchase threshold. (However, in 

accordance with FAR 4.1102, micropurchases can also be exempted from 

Central Contractor Registration (CCR) 

requirements.)

10. Comment: If vendors already 

access CCR, why is ORCA available only 

through the Business Partner Network? 

It seems it would be easier to include 

the necessary fields for ORCA into CCR 

so that vendors would not have to 

access two systems.

Council’s response: ORCA is available 

through the BPN because it is part of the 

BPN, as is CCR. However, just like CCR, 

it can be reached directly via the URL 

http://orca.bpn.gov. To alleviate the 

burden on the vendor, company 

information collected in CCR is 

electronically provided and prepopulated into ORCA. The vendor is not 

asked to re-enter any information that is 

found in CCR.

11. Comment: Does a contractor first 

submit online reps and certs when he/

she receives a solicitation and decides 

to submit an offer; or are the CCR 

database administrators going to notify 

its registrants and instruct them to go to 

the ‘‘Online Representations and 

Certifications Application (ORCA)’’ at 

bpn.gov and enter in the reps and certs?

Council’s response: The first time the 

vendor responds to a solicitation that 

includes either FAR 52.204–8 or 

52.212–3(j), the vendor would be 

required to complete the online 

representations and certifications. 

However, the Government plans an 

extended outreach effort, including 

notifications from CCR, in order to 

publicize ORCA’s availability and 

required use.

12. Comment: Informational language 

in the proposed rule stated, ‘‘Small 

businesses that are exempted from 

registering in the CCR database are also 

exempted from submitting 

representations and certifications 

electronically.’’ This statement is 

confusing. We are not aware of any 

business class exceptions to CCR 

registration. The exception to CCR 

registration at FAR 4.1102 does not 

apply to the entity doing business with 

the Government insomuch as it applies 

to the type of acquisition or contract 

being awarded at the time. Even if a 

contractor was awarded a contract that 

happened to be exempt from the CCR 

requirement, the exception does not 

then apply for subsequent or new 

awards, if the new award does not meet 

one of the exceptions.

Council’s response: We concur. The 

informational language has been 

corrected in the final rule.

13. Comment: We think that 

contractors may become frustrated or 

confused if, after completing reps and 

certs on line, they are then required to 

fill out reps and certs in another 

contract, just because that particular 

contract is exempt from the CCR 

requirements. Perhaps there should be 

direction to the CO to check ORCA 

before deciding which reps and certs 

clause to include in a solicitation for an 

award that may be exempt from CCR. If 

the contractor has already completed 

the annual reps and certs, then the 

annual reps and certs clause(s) could be 

used in the solicitation. If not, then the 

CO would include all applicable reps 

and certs required for the solicitation. 

However, since reps and certs are 

required for every award (except for 

micropurchases), there should be no 

exceptions for annual reps and certs. All 

solicitations should include the annual 

reps and certs clause. We believe that 

even contractors who may have had a 

contract exempted from CCR will 

eventually have to be registered in the 

CCR and therefore will be able to submit 

annual reps and certs.

Council’s response: Concur. Final rule 

includes language to encourage ORCA 

use when CCR is not required and 

provides further instructions if the 

offeror has already completed 

representations and certifications in 

ORCA.

14.Comment. Perhaps the requirement 

for annual reps and certs should be 

moved from FAR Parts 12, 14, and 15 

and moved to FAR Part 4, in a new 

Subpart, 4.12 (after 4.11, Central 

Contractor Registration). Alternatively, 

revise Subpart 4.11 to be a subpart titled 

Business Partner Network, with two 

sections. The scope of the subpart 

would prescribe policies and 

procedures for requiring contractor 

registration in the CCR database, and 

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 76343

submission of annual representations 

and certifications.

Council’s response: We concur. The 

final rule adds a new Subpart 4.12 that 

addresses these requirements.

15. Comment. We have a concern 

about the submission process of the 

‘‘Online Representations and 

Certification Application (ORCA)’’. In 

reading the ORCA procedures, we noted 

that contractors would be required to 

have a Marketing Partner Identification 

Number (MPIN) in order to enter 

information into ORCA. This is a 

number created by the vendor during 

the registration process in the CCR. We 

have a concern about this requirement. 

The MPIN is not a mandatory field in 

the CCR and it is likely that quite a few 

contractors did not create an MPIN at 

the time of CCR registration. It is 

possible that a lot of contractors will 

now have to go back to CCR and create 

an MPIN. We suggest allowing that the 

Trading Partner Identification Number 

(TPIN) issued by CCR be used instead, 

or change the MPIN field in CCR to a 

mandatory one. While this may be 

outside the scope of this case, this is 

something that should be looked into.

Council’s response: The TPIN, for 

security reasons, is not provided to 

anyone (including other government 

systems) other than the Point of Contact 

provided by the registrant in its CCR 

record. The MPIN is required for 

vendors to use other Government 

systems (such as the Past Performance 

Information Retrieval System (PPIRS) 

and Federal Technical Data Solution 

(FedTeDS)), so its use for ORCA is 

consistent. However, it is true that 

currently the MPIN is an optional field 

in CCR. The suggestion to make it 

mandatory has been provided to the 

CCR Program Manager for 

consideration. Additionally, vendor 

outreach is planned for the 

implementation of ORCA, which will 

include instructions on the MPIN and 

its use.

16. Comment: Why is there no 

reference to annual representations and 

certifications in FAR Part 13 for use 

with non-commercial item acquisitions. 

We assume that either FAR 52.214–30 

or 52.215–7 would be used. We 

recommend adding language similar to 

that at the proposed FAR 15.209(g) to 

FAR 13.302–5(d).

Council’s response: Although FAR 

Part 13 does not specifically discuss 

representations and certifications, FAR 

13.003(g)(1) states that any appropriate 

combination of procedures in FAR parts 

13, 14, 15, 35, or 36 may be used for 

non-commercial items that do not 

exceed the simplified acquisition 

threshold. This would include using 

ORCA.

17. Comment: We recommend adding 

language similar to that at the proposed 

FAR 15.209(g) to FAR 14.201–9(e).

Council’s response: By adding new 

Subpart 4.12, there is no need to add 

language to FAR 14.201–9(e).

18.Comment: FAR 52.222–18, 

Certification Regarding Knowledge of 

Child Labor for Listed End Products. 

This particular certification, which is 

listed as a certification that is not to be 

included in a solicitation that includes 

the annual reps and certs clause, doesn’t 

seem appropriate as an annual 

certification because it contains contract 

specific fill-ins for the CO. This is only 

used for acquisition of certain products, 

which the CO must identify in the 

solicitation. How can this be an ‘‘annual 

certification?’’

Council’s response: For the majority 

of vendors completing FAR 52.222–18, 

the answer would likely be the same: 

that they do not supply any end 

products from the identified countries. 

Vendors that have different answers in 

response to a specific solicitation would 

provide those differences in accordance 

with FAR 52.204–8 or 52.212–3(j) 

(whichever is included in the 

solicitation).

19. Comment: We think the language 

in the ‘‘Annual Reps and Certs’’ clauses 

should be revised to make it clear to 

offerors that any reps and certs posted 

on the BPN that do not apply or are 

different because of a particular 

solicitation must be identified. We are 

especially concerned that offerors 

understand that while they may be 

certified as a small business under one 

NAICS code, they may not be small 

under another one.

Council’s response: We concur. The 

language included in the new Subpart 

4.12 and in the provisions at FAR 

52.204–8 and 52.212–3(j) makes it clear 

that offerors are required to indicate in 

the specific solicitation differences from 

the representations and certifications in 

ORCA.

20. Comment: When using ORCA, 

will contractors indicate their business 

size for the NAICS that they most 

commonly do business under and then 

be required to update the listing and 

business size when additional NAICS 

are used for particular situations? Or 

will they just indicate how many 

employees/dollars and then have the 

Government make assessments based on 

the particular NAICS that pertains to 

each solicitation?

Council’s response: The vendor can 

provide up to 20 NAICS in CCR and 

consequently ORCA. Every NAICS the 

vendor provides to CCR is listed in 

ORCA. Size determination is 

automatically calculated (using annual 

revenue and number of employees) and 

displayed for each NAICS given. 

Additionally, the vendor-provided 

annual revenue and number of 

employees is shown. Contracting 

officers can use that information to 

calculate size status for NAICS not 

provided.

21. Comment: Vendors may be 

reluctant to publish TIN numbers 

because of concerns that it would be 

accessible to other parties.

Council’s response: TIN numbers are 

never displayed in ORCA. The notice 

‘‘TIN on File with CCR’’ is shown in 

place of the actual TIN.

22. Comment: An offeror’s response to 

the Buy American Act certification 

would depend on the type of product 

being provided by the vendor.

Council’s response: Vendors can list 

all of their foreign end products and the 

associated countries in ORCA. If in 

response to a solicitation a vendor offers 

a foreign end product not listed in 

ORCA, the vendor would provide the 

information in accordance with either 

provision FAR 52.204–8 or 52.212–3(j).

23. Comment: The proposed FAR 

52.214–30 and 52.215–7 clauses are 

nearly identical (one referring to sealed 

bids and the other referring to 

negotiation and offerors). Consider 

combining the two proposed clauses 

into a single clause.

Council’s response: Concur. The two 

provisions have been combined into 

new provision FAR 52.204–8.

24. Comment: Will the BPN Web site 

for the representations and certifications 

also accommodate agency-specific reps 

and certs, such as DFARS 252.247–

7022?

Council’s response: At this time 

ORCA only contains FAR level 

representations and certifications. 

Agency specific provisions are included 

in RFPs as required by Agency policies 

and regulations. However, this 

recommendation has been forwarded to 

the ORCA Program Manager for possible 

future inclusion in ORCA.

25. Comment: It would appear that 

Certificates of Current Cost and Pricing 

Data (when required – i.e., noncompetitive RFPs) would need to be 

included within RFPs, outside of their 

place within the Reps and Certs.

Council’s response: We concur. The 

certification at FAR 15.406–2, 

Certificate of Current Cost or Pricing 

Data, is not included in ORCA.

26. Comment: Reps and Certs 

concerning Limited Rights Data/

Restricted Software would have to 

remain and RFP-specific requirement to 

76344 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

be called out by a contractor in some 

other portion of their proposal.

Council’s response: ORCA allows the 

vendor to enter multiple Limited Rights 

Data and Restricted Computer Software 

into their record. A vendor that would 

have different answers in response to a 

specific solicitation would provide 

those differences in accordance with 

FAR 52.204–8 or 52.212–3(j) (whichever 

is included in the solicitation).

27. Comment: Information pertaining 

to Place of Performance would have to 

be RFP- specific and identified by 

contractors in another portion of their 

proposal.

Council’s response: ORCA allows the 

vendor to enter multiple Places of 

Performance. A vendor that would have 

different answers in response to a 

specific solicitation would provide 

those differences in accordance with 

FAR 52.204–8 or 52.212–3(j) (whichever 

is included in the solicitation).

28. Comment: The identification of 

‘‘authorized negotiators,’’ often included 

within Reps and Certs, is RFP-specific 

information for most contractors, and 

would have to be identified elsewhere 

in a contractor’s proposal.

Council’s response: ORCA does not 

provide for identification of authorized 

negotiators. This requirement is 

solicitation specific.

29. Comment: There are a number of 

issues regarding the handling of 

subcontractor Reps and Certs: (a) prime 

contractors could be given controlled 

access to the CCR database, to determine 

whether and what Reps and Certs have 

been completed by a subcontractor; (b) 

prime contractors could rely on a 

written affirmation/certification from 

subcontractors that they have completed 

the all-encompassing Reps and Certs; 

and (c) giving prime contractors access 

to the CCR database is probably the best 

solution, otherwise, there is a large 

amount of information that prime 

contractors would still have to get from 

subcontractors: business size, DUNS #, 

taxpayer ID #, whether they are 

debarred, or whether they are subject to 

the Cost Accounting Standards, for 

several examples.

Council’s response: ORCA is available 

to the public to search and view. 

However, as previously stated, a 

vendor’s TIN Number is never publicly 

displayed on ORCA.

30. Comment: Contractors must be 

required to update their BPN annual 

revenue size certifications whenever 

they complete a fiscal year, and must be 

required to update their BPN number of 

employees size certifications on a 

monthly basis in order for such 

certifications to be current, accurate, 

and complete. Otherwise the BPN reps 

and certs will be most likely be out–of–

date, inaccurate, and incomplete, 

resulting in increased costs for both the 

procuring agency (increased number of 

size protests and related GAO protests) 

and offerors (costs associated with 

preparing offer for procurement where 

concern is ultimately found to be 

ineligible for award).

Council’s response: In accordance 

with the provisions at FAR 52.204–8 

and 52.212–3(j) (whichever is included 

in the solicitation), the vendor’s offer 

constitutes affirmation that the 

information in ORCA is current, 

accurate, and complete as of the date of 

the offer. The offeror assumes the risk of 

out–of–date, inaccurate, or incomplete 

information by submission of his offer.

31. Comment: FAR 52.219–1 also 

contains reps and certs with respect to 

offers from HUBZone joint ventures, 

which are contract–specific reps and 

certs that cannot be submitted through 

the BPN (FAR 52.219–1(b)(6)(ii)). If the 

rule is adopted as proposed, the 

HUBZone joint venture reps and certs 

must be added to another FAR clause so 

that affected entities can make the 

required joint venture reps and certs 

with respect to particular contracts.

Council’s response: We disagree. 

Vendors that would have different 

answers in response to a specific 

solicitation would provide those 

differences in accordance with FAR 

52.204–8 or 52.212–3(j) (whichever is 

included in the solicitation).

32. Comment: Under the proposed 

rule, firms will not have to submit FAR 

52.219–2, Equal Low Bids, on a 

contract-by-contract basis. However, 

under FAR 52.219–2, a concern must 

identify the labor surplus area (LSA) ‘‘in 

which the costs to be incurred on 

account of manufacturing or production 

(by the bidder or first-tier 

subcontractors) amount to more than 50 

percent of the contract price.’’ Such a 

representation can only be made on a 

contract-by-contract basis. FAR clause 

52.219–2 must be included in each 

particular contract. We recommend that 

proposed FAR 14.213(b)(9) be deleted.

Council’s response: We disagree. For 

the majority of vendors completing FAR 

52.219–2, the answer would likely be 

the same regardless of the solicitation. 

Vendors that have different answers in 

response to a specific solicitation would 

provide those differences in accordance 

with FAR 52.204–8 or 52.212–3(j), 

(whichever is included in the 

solicitation).

33. Comment: Under the proposed 

rule, firms will not have to submit FAR 

52.219–22, Small Disadvantaged 

Business Status, on a contract-bycontract basis. However, this clause 

allows a firm that has not been certified 

as small disadvantaged business (SDB) 

to claim entitlement to SDB preferences 

while an application for SDB 

certification is pending (FAR 52.219–

22(b)(1)(ii)). Procedures are currently in 

place for expediting SBA’s review of an 

SDB application when an applicant is 

the apparent successful offeror (FAR 

19.304(c)(2), 19.304(d); 13 CFR 

124.1001(c)(2) and 124.1010). It is 

unclear if concerns can only represent 

themselves as SDBs in BPN if they have 

in fact already been certified as SDBs by 

SBA. If that is the case, then the 

provisions of FAR clause 52.219–

22(b)(1)(ii) must be included in all 

solicitations so that firms can take 

advantage of the regulatory provisions 

which allow concerns to claim 

entitlement to SDB preferences while an 

SDB application is pending.

Council’s response: We disagree. FAR 

52.219–22(b)(1)(ii) is included in ORCA. 

A vendor can initially indicate that it 

has submitted a completed application 

to SBA and then update the 

representation if and when it is 

certified. A vendor can also indicate a 

change in status in either FAR 52.204–

8 or 52.212–3(j), as appropriate.

Therefore, this final rule amends FAR 

parts 2, 4, 14, 15 and 52 to require 

offerors to—

• Provide representations and 

certifications electronically via the BPN 

Website at http://orca.bpn.gov;

• Update the representations and 

certifications as necessary, but at least 

annually to ensure they are kept current, 

accurate and complete; and

• Make changes that affect only one 

solicitation by completing the 

appropriate sections of either FAR 

52.204–8 or 52.212–3(j); whichever is 

included in the solicitation.

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 Regulatory Flexibility Act, 5 

U.S.C. 601, et seq., applies to this final 

rule. The Councils prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

as follows:

1. A succinct statement of the need for, and 

the objectives of, the rule.

The FAR requires small businesses to 

provide representations and certifications for 

individual solicitations. However, FAR 

15.209(g) and FAR 14.213 do permit annual 

submissions if authorized by individual 

agencies. This rule establishes the 

requirement for annual submissions by 

electronic means.

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 76345

In an effort to broaden use and reliance 

upon e-business applications, the Civilian 

Agency Acquisition Council and the Defense 

Acquisition Regulations Council are working 

with the Office of Federal Procurement 

Policy to eliminate the need to maintain 

paper-based sources of contractor 

information. The objective of this rule is to 

eliminate the need for offerors to submit the 

same information (i.e., representations and 

certifications) to different Government 

contracting and payment offices. By the 

offerors providing this information to a 

centralized location, it is anticipated that this 

rule will have a significant positive impact 

on small businesses by reducing their overall 

administrative burden.

2. Legal basis for the rule.

There is no statutory basis for this rule but, 

rather, an e-Government Integrated 

Acquisition Environment’s (IAE) initiative to 

re-use data as much as possible throughout 

the Federal procurement workspace (i.e., 

‘‘submit once, use many’’ times).

3. Description of, and, where feasible, 

estimate of the number of small entities to 

which the rule will apply.

The rule applies to small business offerors 

that also are required to register in the 

Central Contractor Registration (CCR) 

database. The reason for the link with CCR 

is that, as part of the online representations 

and certifications process, the software will 

use information that an offeror has already 

provided into the CCR database. The offeror 

will provide the additional information 

needed. Therefore, small businesses that are 

exempted from registering in the CCR 

database are also exempted from submitting 

representations and certifications 

electronically. The following CCR exceptions 

also apply to this rule:

(a) The purchase uses a Governmentwide 

commercial purchase card as the purchasing 

mechanism.

(b) Registration (see 4.401) in the CCR 

database, or use of CCR data, could 

compromise the safeguarding of classified 

information or national security.

(c) The contract is awarded by—

(1) A deployed contracting officer in the 

course of military operations, including, but 

not limited to, contingency operations as 

defined in 10 U.S.C. 101(a)(13) or 

humanitarian or peacekeeping operations as 

defined in 10 U.S.C. 2302(7); or

(2) A contracting officer in the conduct of 

emergency operations, such as responses to 

natural or environmental disasters or 

national or civil emergencies, e.g., Robert T. 

Stafford Disaster Relief and Emergency 

Assistance Act (42 U.S.C. 5121).

(d) The contract is to support unusual or 

compelling needs.

(e) The award made is to a foreign vendor 

for work performed outside the United 

States, if it is impractical to obtain CCR 

registration before award.

Based on Governmentwide data, 

approximately, 20,825 small businesses were 

awarded contracts of $25,000 or more in 

fiscal year 2002. It is estimated that a 

majority of them will be subject to the rule. 

Many of these businesses are already among 

the over 240,000 registrants in CCR. 

Information is not available to identify the 

additional number of small businesses that 

were awarded contracts of less than $25,000, 

or were awarded basic agreements, basic 

ordering agreements, or blanket purchase 

agreements.

4. Description of projected reporting, 

recordkeeping, and other compliance 

requirements of the rule, including an 

estimate of the classes of small entities that 

will be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record.

The Office of Management and Budget has 

already approved the current FAR 

information and recordkeeping requirement 

for obtaining representations and 

certifications under OMB Control Number 

9000–0034. The rule decreases the collection 

requirements since the rule requires offerors 

to provide representations and certifications 

annually into a centralized database, in lieu 

of providing this information with each 

solicitation.

Administrative or financial personnel that 

have general knowledge of the contractor’s 

business are able to register by providing the 

pertinent information into the Business 

Partner Network website.

5. Identification, to the extent practicable, 

of all relevant Federal rules that may 

duplicate, overlap or conflict with the rule.

The rule will not duplicate, overlap, or 

conflict with any other Federal rules.

6. Description of any significant 

alternatives to the final rule that accomplish 

the stated objectives of applicable statutes 

and that minimize any significant economic 

impact of the rule on small entities.

There are no significant practical 

alternatives that will accomplish the 

objective of this rule. Continued reliance on 

a paper-based system would unnecessarily 

promote inefficiency associated with paperbased processes. The successful phase-in of 

CCR by the Department of Defense 

demonstrates that the Federal contracting 

community, including small businesses, is 

successfully transitioning to greater use of 

electronic tools and their associated 

efficiencies to conduct business.

Interested parties may obtain a copy of the 

FRFA from the FAR Secretariat. The FAR 

Secretariat has submitted a copy of the FRFA 

to the Chief Counsel for Advocacy of the 

Small Business Administration.

C. Paperwork Reduction Act

The Paperwork Reduction Act (Pub. 

L. 104–13) applies because the final rule 

contains information collection 

requirements; however, these changes 

do not impose additional information 

collection requirements to the 

paperwork burdens previously 

approved under the Office of 

Management and Budget (OMB) Control 

Numbers 9000–0018, 9000–0024, 9000–

0025, 9000–0047, 9000–0090, 9000–

0094, 9000–0097, 9000–0130, 9000–

0134, 9000–0139, 9000–0150, and 9000–

0155, since the rule requires offerors to 

provide representations and 

certifications annually into a centralized 

database, in lieu of providing the same 

information with each solicitation.

List of Subjects in 48 CFR Parts 2, 4, 14, 

15, and 52

Government procurement.

Dated: December 9, 2004.

Laura Auletta,

Director, Contract Policy Division.

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 4, 14, 15, and 52 

as set forth below:

■ 1. The authority citation for 48 CFR 

parts 2, 4, 14, 15, and 52 is revised 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)(2) by adding, in alphabetical order, 

the definitions ‘‘Business Partner 

Network (BPN)’’ and ‘‘Online 

Representations and Certifications 

Application (ORCA)’’ to read as follows:

2.101 Definitions.

* * * * *

(b) * * *

Business Partner Network (BPN)

means an integrated electronic 

infrastructure the Government uses to 

manage (i.e., collect, validate, access 

and maintain) the information it needs 

to transact business with its contractors. 

The BPN is located at http://

www.bpn.gov.

* * * * *

Online Representations and 

Certifications Application (ORCA)

means the primary Government 

repository for contractor submitted 

representations and certifications 

required for the conduct of business 

with the Government. ORCA is part of 

the Business Partner Network (BPN). 

ORCA is located at http://orca.bpn.gov.

* * * * *

PART 4—ADMINISTRATIVE MATTERS

4.1101 Definition.

■ 3. Amend section 4.1101 by revising 

the section heading to read as set forth 

above; and removing the definition 

‘‘Business Partner Network.’’

■ 4. Add Subpart 4.12 to read as follows:

Subpart 4.12—Annual Representations and 

Certifications

Sec.

4.1200 Scope.

4.1201 Policy.

4.1202 Solicitation provision and contract 

clause.

4.1200 Scope.

This subpart prescribes policies and 

procedures for requiring prospective 

contractors to submit Annual 

76346 Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 

Representations and Certifications via 

the Online Representations and 

Certifications Application (ORCA), a 

part of the Business Partner Network 

(BPN), to—

(a) Eliminate the administrative 

burden for contractors of submitting the 

same information to various contracting 

offices; and

(b) Establish a common source for this 

information to procurement offices 

across the Government.

4.1201 Policy.

(a) Prospective contractors shall 

complete electronic annual 

representations and certifications at 

http://orca.bpn.gov in conjunction with 

required registration in the Central 

Contractor Registration (CCR) database 

(see FAR 4.1102).

(b) Prospective contractors shall 

update the representations and 

certifications submitted to ORCA as 

necessary, but at least annually, to 

ensure they are kept current, accurate, 

and complete. The representations and 

certifications are effective until one year 

from date of submission or update to 

ORCA.

4.1202 Solicitation provision and contract 

clause.

Except for commercial item 

solicitations issued under FAR Part 12, 

insert in solicitations the provision at 

52.204–8, Annual Representations and 

Certifications. When the clause at 

52.204–7, Central Contractor 

Registration, is included in the 

solicitation, do not include the 

following representations and 

certifications:

(a) 52.203–2, Certificate of 

Independent Price Determination.

(b) 52.203–11, Certification and 

Disclosure Regarding Payments to 

Influence Certain Federal Transactions.

(c) 52.204–3, Taxpayer Identification.

(d) 52.204–5, Women-Owned 

Business (Other Than Small Business).

(e) 52.209–5, Certification Regarding 

Debarment, Suspension, Proposed 

Debarment, and Other Responsibility 

Matters.

(f) 52.214–14, Place of Performance—

Sealed Bidding.

(g) 52.215–6, Place of Performance.

(h) 52.219–1, Small Business Program 

Representations (Basic & Alternate I).

(i) 52.219–2, Equal Low Bids.

(j) 52.219–19, Small Business Concern 

Representation for the Small Business 

Competitiveness Demonstration 

Program.

(k) 52.219–21, Small Business Size 

Representation for Targeted Industry 

Categories Under the Small Business 

Competitiveness Demonstration 

Program.

(l) 52.219–22, Small Disadvantaged 

Business Status (Basic & Alternate I).

(m) 52.222–18, Certification 

Regarding Knowledge of Child Labor for 

Listed End Products.

(n) 52.222–22, Previous Contracts and 

Compliance Reports.

(o) 52.222–25, Affirmative Action 

Compliance.

(p) 52.222–38, Compliance with 

Veterans’ Employment Reporting 

Requirements.

(q) 52.222–48, Exemption from 

Application of Service Contract Act 

Provisions for Contracts for 

Maintenance, Calibration, and/or Repair 

of Certain Information Technology, 

Scientific and Medical and/or Office 

and Business Equipment—Contractor 

Certification.

(r) 52.223–4, Recovered Material 

Certification.

(s) 52.223–9, Estimate of Percentage of 

Recovered Material Content for EPADesignated Products (Alternate I only).

(t) 52.223–13, Certification of Toxic 

Chemical Release Reporting.

(u) 52.225–2, Buy American Act 

Certificate.

(v) 52.225–4, Buy American Act—

Free Trade Agreements—Israeli Trade 

Act Certificate (Basic, Alternate I & II).

(w) 52.225–6, Trade Agreements 

Certificate.

(x) 52.226–2, Historically Black 

College or University and Minority 

Institution Representation.

(y) 52.227–6, Royalty Information 

(Basic & Alternate I).

(z) 52.227–15, Representation of 

Limited Rights Data and Restricted 

Computer Software.

PART 14—SEALED BIDDING

14.201–6 [Amended]

■ 5. Amend section 14.201–6 by 

removing and reserving paragraph (u).

14.213 [Removed]

■ 6. Remove section 14.213.

PART 15—CONTRACTING BY 

NEGOTIATION

15.209 [Amended]

■ 7. Amend section 15.209 by removing 

and reserving paragraph (g).

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES

■ 8. Add section 52.204–8 to read as 

follows:

52.204–8 Annual Representations and 

Certifications.

As prescribed in 4.1202, insert the 

following provision:

ANNUAL REPRESENTATIONS AND 

CERTIFICATIONS (JAN 2005)

(a)(1) If the clause at 52.204–7, Central 

Contractor Registration, is included in 

this solicitation, paragraph (b) of this 

provision applies.

(2) If the clause at 52.204–7 is not 

included in this solicitation, and the 

offeror is currently registered in CCR, 

and has completed the ORCA 

electronically, the offeror may choose to 

use paragraph (b) of this provision 

instead of completing the corresponding 

individual representations and 

certifications in the solicitation. The 

offeror shall indicate which option 

applies by checking one of the following 

boxes:

[ ] (i) Paragraph (b) applies.

[ ] (ii) Paragraph (b) does not apply 

and the offeror has completed the 

individual representations and 

certifications in the solicitation.

(b) The offeror has completed the 

annual representations and 

certifications electronically via the 

Online Representations and 

Certifications Application (ORCA) 

website at http://orca.bpn.gov. After 

reviewing the ORCA database 

information, the offeror verifies by 

submission of the offer that the 

representations and certifications 

currently posted electronically have 

been entered or updated within the last 

12 months, are current, accurate, 

complete, and applicable to this 

solicitation (including the business size 

standard applicable to the NAICS code 

referenced for this solicitation), as of the 

date of this offer and are incorporated in 

this offer by reference (see FAR 4.1201); 

except for the changes identified below 

[offeror to insert changes, identifying 

change by clause number, title, date]. 

These amended representation(s) and/or 

certification(s) are also incorporated in 

this offer and are current, accurate, and 

complete as of the date of this offer.

FAR 

Clause 

#

Title Date Change 

lll lllll lll lll

Any changes provided by the offeror 

are applicable to this solicitation only, 

and do not result in an update to the 

representations and certifications posted 

on ORCA.

(End of Provision)

■ 9. Amend section 52.212–1 by revising 

the date of the provision and paragraph 

(b)(8) to read as follows:

52.212–1 Instructions to Offerors—

Commercial Items.

* * * * *

Federal Register / Vol. 69, No. 243 / Monday, December 20, 2004 / Rules and Regulations 76347

INSTRUCTIONS TO OFFERORS—

COMMERCIAL ITEMS (JAN 2005)

* * * * *

(b) Submission of offers. ** *

(8) A completed copy of the 

representations and certifications at 

FAR 52.212–3 (see FAR 52.212–3(j) for 

those representations and certifications 

that the offeror shall complete 

electronically);

* * * * *

■ 10. Amend section 52.212–3 by 

revising the date of the provision; adding 

an introductory paragraph and 

paragraph (j) to read as follows:

52.212–3 Offeror Representations and 

Certifications—Commercial Items.

* * * * *

OFFEROR REPRESENTATIONS AND 

CERTIFICATIONS—COMMERCIAL ITEMS 

(JAN 2005)

An offeror shall complete only 

paragraph (j) of this provision if the 

offeror has completed the annual 

representations and certifications 

electronically at http://orca.bpn.gov. If 

an offeror has not completed the annual 

representations and certifications 

electronically at the ORCA website, the 

offeror shall complete only paragraphs 

(b) through (i) of this provision.

* * * * *

(j)(1) Annual Representations and 

Certifications. Any changes provided by 

the offeror in paragraph (j) of this 

provision do not automatically change 

the representations and certifications 

posted on the Online Representations 

and Certifications Application (ORCA) 

website.

(2) The offeror has completed the 

annual representations and 

certifications electronically via the 

ORCA website at http://orca.bpn.gov. 

After reviewing the ORCA database 

information, the offeror verifies by 

submission of this offer that the 

representations and certifications 

currently posted electronically at FAR 

52.212–3, Offeror Representations and 

Certifications—Commercial Items, have 

been entered or updated in the last 12 

months, are current, accurate, complete, 

and applicable to this solicitation 

(including the business size standard 

applicable to the NAICS code referenced 

for this solicitation), as of the date of 

this offer and are incorporated in this 

offer by reference (see FAR 4.1201), 

except for paragraphs llllll.

[Offeror to identify the applicable 

paragraphs at (b) through (i) of this 

provision that the offeror has completed 

for the purposes of this solicitation only, 

if any.

These amended representation(s) 

and/or certifica-tion(s) are also 

incorporated in this offer and are 

current, accurate, and complete as of 

the date of this offer.

Any changes provided by the offeror 

are applicable to this solicitation only, 

and do not result in an update to the 

representations and certifications 

posted on ORCA.]

(End of provision)

52.214–30 [Removed and Reserved]

■ 11. Remove and reserve section 

52.214–30.

52.215–7 [Removed and Reserved]

■ 12. Remove and reserve section 

52.215–7.

[FR Doc. 04–27633 Filed 12–17–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 2, 9, 22, 28, 44, and 52

[FAC 2001-26; FAR Case 2002-023; Item II]

RIN 9000-AJ78

Federal Acquisition Regulation; 

Excluded Parties List System 

Enhancement

AGENCY: 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 publish an 

electronic list of parties excluded from 

doing business with the Federal 

Government online identified as the 

Excluded Parties List System (EPLS). 

This will obviate the need to publish the 

hard copy of the List of Parties Excluded 

from Federal Procurement and 

Nonprocurement Programs (List of 

Parties) produced by the Government 

Printing Office.

DATES: Effective Date:January 19, 2005.

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501-4755 for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Mr. Craig Goral, 

Procurement Analyst, at (202) 501-3856. 

Please cite FAC 2001-26, FAR case 

2002-023.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule incorporates the 

Excluded Parties List System into the 

FAR and enables agencies to directly 

enter data on parties suspended, 

proposed for debarment, debarred, 

declared ineligible, or excluded or 

disqualified under the nonprocurement 

common rule by agencies or the 

Government Accountability Office. GSA 

maintains that direct entry by the acting 

agency will improve the reliability of 

the system, eliminate the need for a 

hard copy list, provide access to the 

archival data, and enhance the ability to 

verify entries by permitting a search by 

exact name and social security number 

where the agencies entering the data 

have the authority to collect, retain, and 

publish the party’s social security 

number.

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

68 FR 67353, December 1, 2003. The 

Councils received comments in 

response to the proposed rule from six 

respondents. Several respondents 

concurred in the rule as written. Other 

comments are categorized as follows:

1. One respondent recommended that 

the names of the parties listed in the 

EPLS be linked to the Central Contractor 

Registry (CCR) accessible on the Internet 

at http://www.ccr.gov/index.cfm. The 

Councils partially concur; however, in 

light of impending review of the CCR 

and the Business Partner Network (BPN) 

by their Program Manager, within the 

next six months to ascertain the 

capabilities of these systems, no change 

was made at the present time.

2. One respondent pointed out a 

technological glitch in conducting 

searches using the EPLS search engine 

for a field for DUNS number that is not 

a required entry. He points out that if 

the searcher has a DUNS number and 

searches for that given DUNS number 

but the agency data entry person has not 

entered the number, the research results 

will indicate no such entry or ‘‘No 

records were found matching this 

criteria.’’ Searchers could readily 

interpret this search engine response as 

an indication that the party to which 

Dun and Bradstreet assigned a DUNS 

number is not listed in EPLS when what 

such search results could also mean is 

that there is no data actually entered 

into a non-mandatory field. He 

suggested adding a cautionary note to 

FAR 9.404 or 9.105-1(c)(1). The 

Councils acknowledge the validity of 

his concern but decline to add a 

cautionary note to the FAR. The 

Councils acknowledge that while 

obtaining a DUNS number is a