34894 Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 1, 5, 8, 17, 19, 32, and 52

[FAR Case 2000–402]

RIN 9000–AI76

Federal Acquisition Regulation;

Definitions for ‘‘Contract Action’’ and

‘‘Contracting Action’’

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule with request for

comments.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council

(Councils) are proposing to amend the

Federal Acquisition Regulation (FAR) to

provide for consistent use of the term

‘‘contract action.’’ The proposed

revisions are intended to reorganize,

simplify, and clarify the FAR. The

Councils do not intend to make any

substantive change to the FAR by this

proposal. Comments should address any

potential unintended substantive

changes to the FAR resulting from the

proposed revisions. This case is one of

a series of cases that implement the

White House memorandum, Plain

Language in Government Writing, dated

June 1, 1999.

DATES: Interested parties should submit

comments on or before July 31, 2000 to

be considered in the formulation of a

final rule.

ADDRESSES: Submit written comments

to General Services Administration,

FAR Secretariat (MVR), Attn: Ms. Laurie

Duarte, 1800 F Street, NW, Room 4035,

Washington, DC 20405.

Submit electronic comments via the

Internet to: farcase.2000–402@gsa.gov.

Please submit comments only and cite

FAR case 2000–402 in all

correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The

FAR Secretariat, Room 4035, GS

Building, Washington, DC 20405; (202)

501–4755, for information pertaining to

status or publication schedules. For

clarification of content, contact Mr.

Ralph De Stefano, Procurement Analyst,

at (202) 501–1758. Please cite FAR case

2000–402.

SUPPLEMENTARY INFORMATION:

A. Background

The rule amends the Federal

Acquisition Regulation (FAR) to address

perceived inconsistencies in the use of

the terms ‘‘contract action’’ and

‘‘contracting action.’’ The rule changes

the term ‘‘contracting action’’ to

‘‘contract action’’ throughout the FAR.

In the current FAR, the terms are used

interchangeably, with ‘‘contract action’’

used most often. Also, the rule deletes

the existing definitions of ‘‘contracting

action’’ in FAR part 5 (defined but not

used in part 5) and ‘‘contract action’’ in

part 32 and moves the content to the

policy section of each part, because the

definitions really serve to narrow the

scope of each part.

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 Councils do not expect this

proposed rule to have a significant

economic impact on a substantial

number of small entities within the

meaning of the Regulatory Flexibility

Act, 5 U.S.C. 601, et seq., because, while

we are making changes in accordance

with plain language guidelines, we are

not substantively changing procedures

for award and administration of

contracts. Therefore, an Initial

Regulatory Flexibility Analysis is not

required. We invite comments from

small businesses and other interested

parties. We will consider comments

from small entities concerning the

affected FAR parts in accordance with 5

U.S.C. 610. Small entities must submit

such comments separately and should

cite 5 U.S.C. 601, et seq. (FAR case

2000–402), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the proposed changes

to the FAR do not impose information

collection requirements that require the

approval of the Office of Management

and Budget under 44 U.S.C. 3501, et

seq.

List of Subjects in 48 CFR Parts 1, 5, 8,

17, 19, 32, and 52

Government procurement.

Dated: May 24, 2000.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Therefore, DoD, GSA, and NASA

propose to amend 48 CFR parts 1, 5, 8,

17, 19, 32, and 52 as set forth below:

1. The authority citation for 48 CFR

parts 1, 5, 8, 17, 19, 32, and 52

continues to read as follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 1—FEDERAL ACQUISITION

REGULATIONS SYSTEM

2. Revise section 1.403 to read as

follows:

1.403 Individual deviations.

Individual deviations affect only one

contract action, and, unless section

1.405(e) is applicable, may be

authorized by the agency head. The

contracting officer must document the

justification and agency approval in the

contract file.

3. Revise the introductory paragraph

of section 1.404 to read as follows:

1.404 Class deviations.

Class deviations affect more than one

contract action. When an agency knows

that it will require a class deviation on

a permanent basis, it should propose a

FAR revision. Civilian agencies, other

than NASA, must furnish a copy of each

approved class deviation to the FAR

Secretariat.

* * * * *

4. Revise paragraph (b) of section

1.705 to read as follows:

1.705 Supersession and modification.

* * * * *

(b) The contracting officer need not

cancel the solicitation if the D&F, as

modified, supports the contract action.

PART 5—PUBLICIZING CONTRACT

ACTIONS

5. Revise section 5.000 to read as

follows:

5.000 Scope of part.

This part prescribes policies and

procedures for publicizing contract

opportunities and award information.

The policies apply to actions resulting

in a contract, including actions for

additional supplies or services outside

the existing contract scope. The policies

do not apply to actions that are within

the scope and under the terms of the

existing contract, such as contract

modifications issued pursuant to the

Changes clause, or funding and other

administrative changes.

5.001 [Removed and Reserved]

6. Remove and reserve section 5.001.

PART 8—REQUIRED SOURCES OF

SUPPLIES AND SERVICES

7. Revise section 8.102 to read as

follows:

8.102 Policy.

When practicable, agencies must use

excess personal property as the first

Federal Register / Vol. 65, No. 105 / Wednesday, May 31, 2000 / Proposed Rules 34895

source of supply for agency and costreimbursement contractor requirements.

Agency personnel must make positive

efforts to satisfy agency requirements by

obtaining and using excess personal

property (including that suitable for

adaptation or substitution) before

initiating a contract action.

PART 17—SPECIAL CONTRACTING

METHODS

17.104 [Amended]

8. Amend the second sentence of

paragraph (b) of section 17.104 by

removing ‘‘contracting action’’ and

inserting ‘‘contract’’.

9. Revise the introductory text of

paragraph (b) of section 17.503 to read

as follows:

* * * * *

17.503 Determinations and findings

requirements.

* * * * *

(b) If the Economy Act order requires

contract action by the servicing agency,

the D & F must also include a statement

that at least one of the following

circumstances applies—

* * * * *

PART 19—SMALL BUSINESS

PROGRAMS

10. In section 19.302, revise the first

sentence of paragraph (h)(4) to read as

follows:

19.302 Protesting a small business

representation.

* * * * *

(h) * * *

(4) If a protest is received that

challenges the small business status of

an offeror not being considered for

award, the contracting officer is not

required to suspend contract action.

***

* * * * *

11. Revise paragraph (c)(2) of 19.505

(and remove the undesignated

paragraph following paragraph (c)(2)) to

read as follows:

19.505 Rejecting Small Business

Administration recommendations.

* * * * *

(c) * * *

(2) The SBA must be allowed 15

working days after making such a

written request, within which the

Administrator of SBA—

(i) May appeal to the Secretary of the

Department concerned; and

(ii) Must notify the contracting officer

whether the further appeal has, in fact,

been taken. If notification is not

received by the contracting officer

within the 15-day period, the

contracting officer must assume that the

SBA request to suspend the contract

action has been withdrawn and that an

appeal to the Secretary was not taken.

* * * * *

PART 32—CONTRACT FINANCING

12. Revise the introductory text of

section 32.000 to read as follows:

32.000 Scope of part.

This part prescribes policies and

procedures for contract financing and

other payment matters related to actions

resulting in a contract, including actions

for additional supplies or services

outside the existing contract scope. This

part does not apply to actions that are

within the scope and under the terms of

the existing contract, such as contract

modifications issued pursuant to the

Changes clause, or funding and other

administrative changes. This part

addresses—

* * * * *

32.001 [Amended]

13. Amend section 32.001 by

removing the definition of ‘‘Contract

action’’.

14. Amend section 32.703–2 by

revising the first sentence to read as

follows:

32.703–2 Contracts conditioned upon

availability of funds.

(a) Fiscal year contracts. The

contracting officer may initiate a

contract action properly chargeable to

funds of the new fiscal year before these

funds are available, provided, that the

contract includes the clause at 52.232–

18, Availability of Funds (see 32.705–

1(a)).

* * * * *

15. Revise paragraph (a) of 32.705–1

to read as follows:

32.705–1 Clauses for contracting in

advance of funds.

(a) Insert the clause at 52.232–18,

Availability of Funds, in solicitations

and contracts if the contract will be

chargeable to funds of the new fiscal

year and the contract action will be

initiated before the funds are available.

* * * * *

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

16. Revise the introductory text of

52.232–18 to read as follows:

52.232–18 Availability of funds.

As prescribed in 32.705–1(a), insert

the following clause:

* * * * *

[FR Doc. 00–13465 Filed 5–30–00; 8:45 am]

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