Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations 12691

Item VII—Collection of Historically

Black Colleges and Universities/

Minority Institutions Award Data (FAR

Case 95–306)

This final rule adds a new FAR

Subpart 26.3 and a new solicitation

provision at 52.226–2 to implement

Executive Order 12928, which requires

agencies to provide periodic reporting

on the progress made in award of

contracts to Historically Black Colleges

and Universities and Minority

Institutions.

Item VIII—Allowability of Foreign

Selling Costs (FAR Case 95–021)

This final rule revises FAR 31.205–

38(c)(2) by removing the ceiling on

allowable foreign selling costs. The rule

also amends 31.205–1, Public relations

and advertising costs, by deleting

reference to the ceiling limitation, and

further revises 31.205–38(c)(2) by

deleting obsolete language.

Item IX—Independent Research and

Development/Bid and Proposal Costs in

Cooperative Agreements (FAR Case 95–

024)

This final rule amends the cost

principle at FAR 31.205–18,

Independent research and development

(IR&D) and bid and proposal costs, by

removing from paragraph (e) the

prohibition against treatment of

contractor IR&D contributions under

NASA cooperative arrangements as

allowable indirect costs.

Item X—Prompt Payment (FAR Case

91–091)

This final rule amends FAR 32.102,

Subpart 32.9, and related clauses at

52.212–4, 52.232–5, 52.232–8, 52.232–

25, 52.232–26, and 52.232–27 in order

to implement changes made in OMB

Circular A–125 (Revised), dated

December 12, 1989, to comply with the

Prompt Payment Act Amendments of

1988 (Public Law 100–496). The rule

also contains amendments to clarify and

simplify the FAR text and clauses.

Item XI—Attorneys’ Fees in GAO

Protests (FAR Case 96–016)

This final rule amends FAR 33.104 to

clarify that the $150 hourly cap on

attorneys’ fees applies only to those

protests filed on or after October 1,

1995. Protests filed with the General

Accounting Office prior to October 1,

1995, are not subject to the hourly cap

on attorneys’ fees, in accordance with

Sections 10001 and 10002 of the Federal

Acquisition Streamlining Act of 1994

(Public Law 103–355).

Item XII—Contractors’ Purchasing

Systems Reviews (FAR Case 94–605)

This final rule amends FAR 44.302 to

(1) add a requirement for the cognizant

contract administration agency to

determine the need for a contractor

purchasing system review (CPSR) based

on, but not limited to, the past

performance of the contractor and

volume, complexity, and dollar value of

the contractor’s subcontracting activity;

and (2) delete the requirement for a

CPSR to be performed initially and at

least every 3 years thereafter, for

contractors exceeding a certain sales

level. Also, FAR sections 44.303

through 44.307 are amended to conform

to amendments at 44.302.

Item XIII—Performance-Based

Payments (FAR Case 96–005)

This final rule amends FAR 52.232–

32, Performance-Based Payments, by

adding paragraphs (f)(6) and (7) to

address title to residual material and

liability for Government-furnished

property, for consistency with

paragraphs (d)(6) and (7) of FAR

52.232–16, Progress Payments.

Item XIV—Technical Corrections

Corrections have been made to

Federal Acquisition Circular 90–44,

which appeared in the Federal Register

at 61 FR 69286, December 31, 1996, to

correct clause dates to correspond with

the effective dates of the rules, and

Federal Acquisition Circular 90–45,

published in the Federal Register at 62

FR 224, January 2, 1997, to replace a

reference inadvertently omitted in the

original document.

Dated: March 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

[FR Doc. 97–6309 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 3 and 52

[FAC 90–46; FAR Case 96–300; Item I]

RIN 9000–AH06

Federal Acquisition Regulation;

Gratuities

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule adopted as final.

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

exempt solicitations and contracts

which do not exceed the simplified

acquisition threshold from the

prescribed use of the clause relating to

gratuities.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.

Paul Linfield at (202) 501–1757 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 96–

300.

SUPPLEMENTARY INFORMATION:

A. Background

The interim rule published as Item III

of Federal Acquisition Circular 90–40 in

the Federal Register at 61 FR 39199,

July 26, 1996, is adopted as final

without change. The interim rule

implemented Section 801 of the

National Defense Authorization Act for

Fiscal Year 1996 (Public Law 104–106).

Section 801 amended 10 U.S.C. 2207,

generally referred to as the Gratuities

Act, to exempt contracts which do not

exceed the simplified acquisition

threshold from application of the

Gratuities Act. Therefore, the clause at

52.203–3, Gratuities, is prescribed for

inclusion in only those contracts which

exceed the simplified acquisition

threshold.

B. Regulatory Flexibility Act

The Department of Defense, the

General Services Administration, and

the National Aeronautics and Space

Administration certify that this final

rule will not 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 only

a small number of Federal contractors

have been subject to action under the

Gratuities clause.

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
12692 Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations

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 3 and

52

Government procurement.

Dated: March 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

Interim Rule Adopted as Final Without

Change

Accordingly, the interim rule

amending 48 CFR Parts 3 and 52 which

was published at 61 FR 39199 on July

26, 1996, is adopted as a final rule

without change.

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

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

[FR Doc. 97–6310 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P

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.

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: