[Federal Register Volume 62, Number 51 (Monday, March 17, 1997)]
[Rules and Regulations]
[Pages 12692-12693]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6311]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 14, 15, and 52

[FAC 90-46; FAR Case 91-104; Item II]
RIN 9000-AF50


Federal Acquisition Regulation; Electronic Contracting

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 have agreed on a final rule amending 
the Federal Acquisition Regulation (FAR) to address the use of 
electronic commerce/electronic data interchange in Government 
contracting. This regulatory action was not subject to Office of 
Management and Budget review under Executive Order 12866, dated 
September 30, 1993. This is not a major rule under 5 U.S.C. 804.

DATES: Effective May 16, 1997.

FOR FURTHER INFORMATION CONTACT: Mr. Ralph DeStefano at (202) 501-1758 
in reference to this FAR case. For general information, contact the FAR 
Secretariat, Room 4037, GS Building, Washington, DC 20405 (202) 501-
4755. Please cite FAC 90-46, FAR case 91-104.

SUPPLEMENTARY INFORMATION:

A. Background

    A proposed rule was published in the Federal Register at 58 FR 
69588, December 30, 1993. The rule proposed amendments to the FAR to 
remove any barriers to the use of electronic data interchange in 
Government contracting. Thirty-six comments from ten respondents were 
received during the public comment period. After evaluating the public 
comments, the Councils agreed to publish another proposed rule as a 
result of significant changes to the previous proposed rule being 
deemed necessary. The revised proposed rule was published in the 
Federal Register at 60 FR 12384, March 6, 1995, and an interim rule was 
published at 60 FR 34735, July 3, 1995. Additional changes to the final 
rule include--

--Revisions at FAR 5.101(a)(2)(iv) to clarify requirements for 
electronic posting of solicitations;
--Revisions at FAR 14.209(b) to clarify procedures for informing 
bidders of cancellation of electronic invitations before opening; and
--Clarification of when electronic bids and proposals will be 
considered to have been received by the Government for the purposes of 
the late bid and late proposal rules in various clauses within FAR Part 
52.

    This rule complements the FACNET rule (FAR Case 94-770; 61 FR 
39189, July 26, 1996), which implemented provisions of the Federal 
Acquisition Streamlining Act of 1994 (FASA) (Pub. L. 103-355) and the 
Clinger-Cohen Act of 1996 (Pub. L. 104-106).

B. Regulatory Flexibility Act

    A Final Regulatory Flexibility Analysis (FRFA) has been performed 
and will be provided to the Chief Counsel for Advocacy of the Small 
Business Administration. A copy of the FRFA may be obtained from the 
FAR Secretariat. The FRFA is summarized as follows:

    This final rule authorizes the use of electronic commerce/
electronic data interchange in Government contracting. The legal 
authority to use electronic commerce for Government contracting 
actions was confirmed in General Accounting Office (GAO) Advisory 
Opinion B-238449. The rule will apply to all actual or potential 
bidders or offerors, large and small, when the solicitation 
authorizes the use of electronic commerce/electronic data 
interchange. It is estimated that the rule will apply to at least 
8,615,190 small entities. There are no significant alternatives 
which would accomplish the objectives of the rule.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose recordkeeping or information collection 
requirements, or collections of information from offerors, contractors, 
or members of the public which 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 5, 14, 15, and 52

    Government procurement.

    Dated: March 7, 1997.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Parts 5, 14, 15, and 52 are amended as set forth 
below:
    1. The authority citation for 48 CFR Parts 5, 14, 15, 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 5--PUBLICIZING CONTRACT ACTIONS

    2. Section 5.101 is amended by revising the first sentence of 
paragraph (a)(2)(iv) to read as follows:


5.101  Methods of disseminating information.

* * * * *
    (a) * * *
    (2) * * *
    (iv) Electronic posting of requirements in a place accessible by 
the general public at the Government installation may be used to 
satisfy the public display requirement. * * *
* * * * *

PART 14--SEALED BIDDING

    3. Section 14.209 is amended by revising paragraph (b) to read as 
follows:


14.209  Cancellation of invitations before opening.

* * * * *
    (b) When an invitation issued other than electronically is 
cancelled, bids that have been received shall be returned unopened to 
the bidders and notice of cancellation shall be sent to all prospective 
bidders to whom invitations were issued. When an invitation issued 
electronically is cancelled, a general notice of cancellation shall be 
posted electronically, the bids received shall not be viewed, and the 
bids shall be purged from primary and backup data storage systems.
* * * * *
    4. Section 14.304-1 is amended by revising paragraph (a)(4) to read 
as follows:

[[Page 12693]]

14.304-1  General.

* * * * *
    (a) * * *
    (4) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point of 
entry to the Government infrastructure not later than 5:00 p.m. one 
working day prior to the date specified for receipt of bids.
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

    5. Section 15.410 is amended by revising the second and third 
sentences of paragraph (b) to read as follows:


15.410  Amendment of solicitations before closing date.

* * * * *
    (b) * * * If the time available before closing is insufficient, 
prospective offerors or quoters shall be notified by electronic data 
interchange, facsimile transmission, telegram, or telephone of an 
extension of the closing date. Telephonic, facsimile, and telegraphic 
notices shall be confirmed in the written amendment to the 
solicitation. * * *
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Section 52.214-7 is amended by revising the provision date, and 
paragraph (a)(4) to read as follows:


52.214-7  Late Submissions, Modifications, and Withdrawals of Bids.

* * * * *

Late Submissions, Modifications, and Withdrawals of Bids (May 1997)

    (a) * * *
    (4) Was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point 
of entry to the Government infrastructure not later than 5:00 p.m. 
one working day prior to the date specified for receipt of bids.
* * * * *
    7. Section 52.214-23 is amended by revising the provision date, and 
paragraph (a)(4) to read as follows:


52.214-23  Late Submissions, Modifications, and Withdrawals of 
Technical Proposals under Two-Step Sealed Bidding.

* * * * *

Late Submissions, Modfications, and Withdrawals of Technical Proposals 
Under Two-Step Sealed Bidding (MAY 1997)

    (a) * * *
    (4) Was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point 
of entry to the Government infrastructure not later than 5:00 p.m. 
one working day prior to the date specified for receipt of technical 
proposals; or
* * * * *
    8. Section 52.214-32 is amended by revising the date of the 
provision, and paragraph (a)(2) to read as follows:


52.214-32  Late Submissions, Modifications, and Withdrawals of Bids 
(Overseas).

* * * * *

Late Submissions, Modifications, and Withdrawals of Bids (Overseas) 
(May 1997)

    (a) * * *
    (2) Was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point 
of entry to the Government infrastructure not later than 5:00 p.m. 
one working day prior to the date specified for receipt of bids. The 
term ``working day'' excludes weekends and U.S. Federal holidays.
* * * * *
    9. Section 52.214-33 is amended by revising the clause date, and 
paragraph (a)(2) to read as follows:


52.214-33  Late Submissions, Modifications, and Withdrawals of 
Technical Proposals Under Two-Step Sealed Bidding (Overseas).

* * * * *

Late Submissions, Modifications, and Withdrawals of Technical Proposals 
Under Two-Step Sealed Bidding (May 1997)

    (a) * * *
    (2) Was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point 
of entry to the Government infrastructure not later than 5:00 p.m. 
one working day prior to the date specified for receipt of technical 
proposals. The term ``working day'' excludes weekends and U.S. 
Federal holidays; or
* * * * *
    10. Section 52.215-10 is amended by revising the provision date and 
paragraph (a)(4) to read as follows:


52.215-10  Late Submissions, Modifications, and Withdrawals of 
Proposals.

* * * * *

Late Submissions, Modifications, and Withdrawals of Proposals (May 
1997)

    (a) * * *
    (4) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point 
of entry to the Government infrastructure not later than 5:00 p.m. 
one working day prior to the date specified for receipt of 
proposals;
* * * * *
    11. Section 52.215-15 is revised to read as follows:


52.215-15  Failure to Submit Offer.

    As prescribed in 15.407(d)(3), insert the following provision:

Failure to Submit Offer (May 1997)

    Recipients of this solicitation not responding with an offer 
should not return this solicitation, unless it specifies otherwise. 
Instead, for paper transactions, they should advise the issuing 
office by letter, postcard, or established electronic commerce 
methods, whether they want to receive future solicitations for 
similar requirements. Electronic solicitations do not require 
notification of desire to receive future solicitations, since these 
solicitations will be openly available to any interested party. If a 
recipient does not submit an offer and does not notify the issuing 
office that future solicitations are desired, the recipient's name 
may be removed from the applicable mailing list.

(End of provision)

    12. Section 52.215-36 is amended by revising the provision date and 
paragraph (a)(2) to read as follows:


52.215-36  Late Submissions, Modifications, and Withdrawals of 
Proposals (Overseas).

* * * * *

Late Submissions, Modifications, and Withdrawals of Proposals 
(OVERSEAS) (MAY 1997)

    (a) * * *
    (2) It was transmitted through an electronic commerce method 
authorized by the solicitation and was received at the initial point 
of entry to the Government infrastructure not later than 5:00 p.m. 
one working day prior to the date specified for receipt of 
proposals. The term ``working day'' excludes weekends and U.S. 
Federal holidays;
* * * * *
[FR Doc. 97-6311 Filed 3-14-97; 8:45 am]
BILLING CODE 6820-EP-P