[Federal Register Volume 69, Number 243 (Monday, December 20, 2004)]
[Rules and Regulations]
[Pages 76341-76347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27633]


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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.

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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

[[Page 76342]]

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 pre-populated 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 micro-purchase level. As such, ORCA must be applied to 
all acquisitions over the micro-purchase threshold. (However, in 
accordance with FAR 4.1102, micro-purchases 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 pre-populated 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

[[Page 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., non-competitive 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

[[Page 76344]]

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 <greek-i>, taxpayer ID <greek-i>, 
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-by-
contract 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--
    <bullet> Provide representations and certifications electronically 
via the BPN Website at http://orca.bpn.gov;
    <bullet> Update the representations and certifications as 
necessary, but at least annually to ensure they are kept current, 
accurate and complete; and
    <bullet> 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.

[[Page 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 paper-based 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.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 14, 15, and 52 
as set forth below:
0
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

0
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.

0
3. Amend section 4.1101 by revising the section heading to read as set 
forth above; and removing the definition ``Business Partner Network.''
0
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

[[Page 76346]]

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 EPA-Designated 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]

0
5. Amend section 14.201-6 by removing and reserving paragraph (u).


14.213   [Removed]

0
6. Remove section 14.213.

PART 15--CONTRACTING BY NEGOTIATION


15.209   [Amended]

0
7. Amend section 15.209 by removing and reserving paragraph (g).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
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:
    [lsqb] [rsqb] (i) Paragraph (b) applies.
    [lsqb] [rsqb] (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 <greek-
        i>                 Title               Date           Change
------------------------------------------------------------------------
------             ----------             ------          ------
------------------------------------------------------------------------

    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)
0
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.

* * * * *

[[Page 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);
* * * * *
0
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 ------
------.
    [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]

0
11. Remove and reserve section 52.214-30.


52.215-7   [Removed and Reserved]

0
12. Remove and reserve section 52.215-7.
[FR Doc. 04-27633 Filed 12-17-04; 8:45 am]
BILLING CODE 6820-EP-S