2712 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 2, 4, 12, and 52 

[FAC 2005–30; FAR Case 2004–038, Item 

I;Docket 2008–0001; Sequence 6] 

RIN 9000–AK94 

Federal Acquisition Regulation; FAR 

Case 2004–038, Federal Procurement 

Data System (FPDS) 

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 adopted as final, with 

one minor change, the interim rule 

amending the Federal Acquisition 

Regulation (FAR) to revise the process 

for reporting contract actions to the 

Federal Procurement Data System 

(FPDS). This final rule revises the 

definition of indefinite delivery vehicle 

at FAR 4.601. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–30, FAR case 

2004–038. 

SUPPLEMENTARY INFORMATION: 

A. Background 

As of October 2003, all agencies were 

to begin reporting FAR-based contract 

actions to the modified system. During 

Fiscal Year 2004, members of the 

interagency Change Control Board, as 

well as departmental teams working on 

the migration of data from the old to 

new system, recognized both the 

opportunity to standardize reporting 

processes and the need to revise the 

FAR to provide current and clear 

reporting requirements. 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

73 FR 21773, on April 22, 2008. The 

interim rule established the 

Government’s commitment for Federal 

Procurement Data System (FPDS) data 

to serve as the single authoritative 

source of all procurement data for a host 

of applications and reports, such as the 

Central Contractor Registration (CCR), 

the Electronic Subcontracting Reporting 

System (eSRS), the Small Business 

Goaling Report (SBGR), and Resource 

Conservation and Recovery Act (RCRA) 

data. The public comment period closed 

on June 23, 2008. Four respondents 

submitted comments on the interim 

rule. A discussion of the comments and 

the changes made to the rule as a result 

of those comments are provided below: 

1. One respondent commented that 

FAR 4.602(a) through (c) contains little 

value for a reader consulting the FAR 

for guidance on what to do and when 

or how to do it. The respondent 

recommends deleting 4.602 and 

renumbering remaining paragraphs. 

Response: The Councils disagree with 

the comment. FAR section 4.602 was 

added to provide general information 

about contract reporting. The section 

identifies FPDS as the Government’s 

web-based tool for reporting contract 

actions. In addition, it provides a list of 

the many uses of the data provided by 

FPDS and cites the FPDS web site. The 

Councils consider this type of 

information to be very useful for the 

acquisition community and indicates 

the degree of importance placed on 

reporting contract actions. Language 

regarding procedures and reporting 

actions (what to do and when or how to 

do it) may be found at FAR 4.605 and 

4.606. Therefore, FAR 4.602 remains 

unchanged. 

2. One respondent commented that 

FAR 4.603(a) seemed to be needless and 

out of place. FPDS preceded Federal 

Funding and Transparency Act of 2006 

(FFATA) by many years and does not 

meet the public access requirements 

articulated in FFATA. The respondent 

recommends deleting this section and 

renumbering remaining subparagraphs. 

Response: The Councils disagree with 

the comment. FAR 4.603(a) is a Federal 

contract policy statement indicating that 

the FFATA requires that all Federal 

award data must be publicly accessible. 

FPDS data is made accessible to the 

public, satisfying the certain basic 

requirements of FFATA. Therefore, this 

paragraph remains unchanged. 

3. One respondent stated that FAR 

4.601 defines indefinite delivery vehicle 

(IDV). Since IDV is more encompassing 

than an indefinite delivery contract 

(IDC), the respondent recommends 

finding another word for ‘‘vehicle’’ or 

changing the definition to read 

‘‘Indefinite delivery vehicle (IDV) means 

an indefinite delivery contract or 

agreement that has one or more...’’ 

Response: The Councils agree that the 

definition should be clarified. As 

indicated at FAR 4.606(a)(ii), examples 

of IDVs, for the purposes of the FPDS, 

include task and delivery order 

contracts (including Governmentwide 

acquisition contracts and multi-agency 

contracts), GSA Federal supply 

schedules, Blanket Purchase 

Agreements, Basic Ordering 

Agreements, or any other agreement or 

contract against which individual orders 

or purchases may be placed. 

Accordingly, the Councils revised the 

definition of ‘‘Indefinite delivery 

vehicle (IDV)’’ at FAR 4.601 to include 

the words ‘‘or agreement.’’ 

4. One respondent recommends that 

references to generic DUNS be removed 

from FAR 4.605(b)(1) and (2). To 

prevent generic DUNS abuse, the FPDS 

Change Control Board voted to not post 

generic DUNS on the FPDS website. 

Each Agency would be responsible for 

communicating what generic DUNS, if 

any, should be used. 

Response: The Councils disagree with 

the comment. The Councils understand 

agencies responsibilities associated with 

deciding which generic DUNS number 

to use, however, a DUNS number is 

required to complete a contract action 

report in FPDS. FAR procedures at 

4.605(b) permit the use of generic DUNS 

numbers and do not interfere with 

agency responsibilities, as agreed to by 

the FPDS Change Control Board. A 

generic DUNS number may be used 

under the circumstances referenced at 

FAR 4.605(b)(1). FAR procedures at 

4.605(b) remain unchanged. 

5. One respondent submitted a 

comment in reference to FAR Case 

2005–040, Electronic Subcontracting 

Reporting System (eSRS). 

Response: This comment is not 

relevant to FAR Case 2004–038 and was 

referred to the FAR Small Business 

Team for disposition. 

6. One respondent submitted a 

comment in reference to the Federal 

Register notice, Background, paragraph 

5, stating that reporting only the 

appropriated portions of contract 

actions would be extremely impractical 

and result in data mismatches between 

automated contracting writing systems 

and FPDS. The respondent indicated 

that they have many actions that have 

mixed funding and it would be difficult 

for contracting staff to identify whether 

funding was appropriated or nonappropriated. In order to comply with 

the rule, data would have to be 

manually entered into FPDS. 

Response: The Councils disagree with 

the comment. FAR 4.606(b)(2) states 

that agencies may submit actions for any 

non-appropriated fund (NAF) or NAF 

portion of a contract action using a mix 

of appropriated and non-appropriated 

funding, after contacting the FPDS 


sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2713 

Program Office. It should be noted that 

reporting non-appropriated funds may 

impact certain reports generated using 

FPDS data regarding appropriated 

funds. FAR language remains 

unchanged. 

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 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 

contract reporting is not accomplished 

by the vendor community, only by 

Government contracting entities. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply because the 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, 2, 4, 

12, and 52 

Government procurement. 

Dated: December 24, 2008 

Edward Loeb, 

Acting Director, Office of Acquisition Policy. 

■ Accordingly, DoD, GSA, and NASA 

adopt the interim rule amending 48 CFR 

parts 1, 2, 4, 12, and 52, which was 

published in the Federal Register at 73 

FR 21773, April 22, 2008, as a final rule 

with the following change: 

PART 4—ADMINISTRATIVE MATTERS 

■ 1. The authority citation for 48 CFR 

part 4 continues to read as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

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

4.601 [Amended] 

■ 2. Amend section 4.601 by removing 

from the introductory paragraph of the 

definition ‘‘Indefinite delivery vehicle 

(IDV)’’ the word ‘‘contract’’ and adding 

‘‘contract or agreement’’ in its place. 

[FR Doc. E9–556 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 2, 3, 12, 23, 25, and 52 

[FAC 2005–30; FAR Case 2000–305; Item 

II; Docket 2009-0001; Sequence 1] 

RIN 9000–AJ55 

Federal Acquisition Regulation; FAR 

Case 2000–305, Commercially 

Available Off-the-Shelf (COTS) Items 

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 implement Section 

4203 of the Clinger-Cohen Act of 1996 

(41 U.S.C. 431) (the Act) with respect to 

the inapplicability of certain laws to 

contracts and subcontracts for the 

acquisition of commercially available 

off-the-shelf (COTS) items. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael Jackson, Procurement Analyst, 

at (202) 208–4949 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–30, FAR case 

2000–305. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 35 of the Office of Federal 

Procurement Policy (OFPP) Act (41 

U.S.C. 431) requires that the Federal 

Acquisition Regulation (FAR) include a 

list of provisions of law that are 

inapplicable to contracts for the 

acquisition of commercially available 

off-the-shelf (COTS) items. Certain laws 

cannot be exempt from the acquisition 

of COTS and they include laws that— 

• Provide for criminal or civil 

penalties; 

• Specifically refer to 41 U.S.C. 431 

and the laws state that it applies to 

COTS; 

• Provide for a bid protest procedure 

or small business preference listed at 41 

U.S.C. 431(a)(3); or 

• Are applicable because the 

Administrator of OFPP makes a written 

determination that it would not be in 

the best interest of the United States to 

exempt such COTS contracts from the 

applicability of the laws. 

In order to implement section 4203 of 

the Clinger-Cohen Act of 1996, DoD, 

GSA, and NASA published an advanced 

notice of proposed rule (ANPR) in the 

Federal Register at 68 FR 4874, January 

30, 2003. The ANPR listed provisions 

that may be inapplicable to the 

acquisition of COTS items, and 

requested public comment. (A prior 

ANPR had been issued under FAR Case 

96–308.) The Councils published a 

proposed rule at 69 FR 2448, January 15, 

2004. The comment period closed on 

March 15, 2004. The Councils received 

comments from 56 respondents, of 

which 3 were duplicates. The comments 

were thoroughly examined by the FAR 

Acquisition Law Team, Civilian Agency 

Acquisition Council (CAAC), and 

Defense Acquisition Regulations 

Council (DARC). 

B. Definition of COTS. 

The Councils received several 

comments on the definition of COTS. 

1. Include services/IT in the 

definition. One respondent suggested 

that the definition of COTS item should 

delete the words ‘‘of supply’’ from the 

definition. The respondent states that 

this is not part of the statutory 

definition. Further, three respondents 

commented that definition of COTS 

should specifically include services. 

Another respondent suggested 

additional language in the definition of 

COTS to address software and other 

information technology products. 

Response: The statute defines ‘‘COTS 

item’’ as an item that ‘‘Is a commercial 

item as described in section 4(12)(A).’’ 

‘‘Commercial item’’ is defined at 41 

U.S.C. 403(12). Paragraph (A) of that 

definition reads as follows: 

‘‘Any item, other than real property, 

that is of a type customarily used by the 

general public or by non-governmental 

purposes, and that— 

(i) Has been sold, leased, or licensed 

to the general public; or 

(ii) Has been offered for sale, lease or 

license to the general public.’’ 

Paragraphs (F) and (G) of the 

definition deal with commercial 

services. These paragraphs were not 

referenced in the statutory definition of 

a COTS item. Services are therefore 

necessarily excluded from the 

definition. To make the definition 

clearer, the reference to the definition of 

commercial item has been revised to 

point to the first paragraph of the 

definition of commercial item. 

The Councils have clarified that the 

words ‘‘of supply’’ include 


sroberts on PROD1PC70 with RULES