Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27407

material contained in FAC 97–26 are

effective May 16, 2001.

Dated: April 25, 2001.

Deidre A. Lee,

Director, Defense Procurement.

Dated: April 12, 2001.

David A. Drabkin,

Deputy Associate Administrator, Office of

Acquisition Policy, General Services

Administration.

Dated: April 13, 2001.

James A. Balinskas,

Acting Associate Administrator for

Procurement, National Aeronautics and

Space Administration.

[FR Doc. 01–12243 Filed 5–15–01; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 2, 4, 5, 6, 7, 9, 12, 13, 14,

19, 22, 34, 35, and 36

[FAC 97–26; FAR Case 1997–304; Item I]

RIN 9000–AI10

Federal Acquisition Regulation;

Electronic Commerce in Federal

Procurement

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comments.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council

(Councils) have agreed on an interim

rule amending the Federal Acquisition

Regulation (FAR) to further implement

section 850 of the National Defense

Authorization Act for Fiscal Year 1998;

and implement section 810 of the Floyd

D. Spence National Defense

Authorization Act for Fiscal Year 2001.

Section 850 calls for the use of costeffective procedures and processes that

employ electronic commerce in the

conduct and administration of Federal

procurement systems. This includes the

designation in the FAR of a single point

of universal electronic public access to

Governmentwide procurement

opportunities (the ‘‘Governmentwide

Point of Entry’’ or ‘‘GPE’’). Section 810

allows agencies to provide access to

notices through the GPE, as designated

in the FAR, instead of publishing them

via the Commerce Business Daily (CBD).

This rule designates Federal Business

Opportunities (‘‘FedBizOpps’’) as the

GPE. Agencies have until October 1,

2001, to complete their transition to, or

integration with, FedBizOpps. By that

date, all agencies must use FedBizOpps

to provide access to public notices of

procurement actions over $25,000 that

are currently required to be published in

the CBD along with associated

solicitations and amendments. In

addition, agencies will not be required

to provide notice in the CBD as of

January 1, 2002, since access to this

information will be provided on the

Internet through FedBizOpps.

DATES: Effective Date: May 16, 2001.

Comment Date: Interested parties

should submit comments to the FAR

Secretariat at the address shown below

on or before July 16, 2001 to be

considered in the formulation of a final

rule.

ADDRESSES: Submit written comments

to: General Services Administration,

FAR Secretariat (MVP), 1800 F Street,

NW., Room 4035, Attn: Ms. Laurie

Duarte, Washington, DC 20405.

Submit electronic comments via the

Internet to: farcase.1997–304@gsa.gov

Please submit comments only and cite

FAC 97–26, FAR case 1997–304 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 Ms.

Victoria Moss, Procurement Analyst, at

(202) 501–4764. Please cite FAC 97–26,

FAR case 1997–304.

SUPPLEMENTARY INFORMATION:

A. Background

1. The First Interim Rule

An interim rule was published in the

Federal Register at 63 FR 58590,

October 30, 1998, amending FAR

Subpart 4.5 and making associated

changes to FAR Parts 2, 5, 13, 14, and

32 to implement Section 850. Section

850 amended Titles 10, 15, 40, and 41

of the United States Code to eliminate

the statutory preference for the Federal

Acquisition Computer Network

(FACNET) computer architecture in

conducting transactions electronically.

Towards this end, the first interim rule

revised the FAR to—

• Promote the use of cost-effective

procedures and processes that employ

electronic commerce in the conduct and

administration of Federal procurement

systems; and

• Require Federal procurement

systems that employ electronic

commerce to apply nationally and

internationally recognized standards

that broaden interoperability and ease

the electronic interchange of

information.

The Councils received and considered

public comments from 28 respondents

that were used in the development of

this second interim rule.

2. The Proposed Rule—Designation of

FedBizOpps

Section 850 calls for ‘‘any notice of

agency requirements or agency

solicitation for contract opportunities’’

to be provided in a form that allows

‘‘convenient and universal user access

through a single, Government-wide

point of entry.’’ Subsequent to the

consideration of public comments on

the first interim rule, the Office of

Federal Procurement Policy (OFPP)

recommended that FedBizOpps (http://

www.fedbizopps.gov) be designated as

the GPE. The Councils published a

proposed rule in the Federal Register at

65 FR 50872, August 21, 2000, to solicit

public comments on the

implementation of OFPP’s

recommendation. The preamble to the

proposed rule describes the

Government’s objectives in designating

a GPE (i.e., to create a central point for

electronic access to business

opportunities, to follow the commercial

lead, and to facilitate re-engineering for

sellers and buyers) and how

FedBizOpps meets these objectives.

The Councils received and considered

public comments from 22 respondents.

OFPP also reviewed the comments on

the proposed designation and continues

to believe that FedBizOpps can most

effectively meet the Government’s

objectives, including improved and

enhanced access to information for

businesses small and large. Among

other things, GSA and the agencies

using FedBizOpps have sought to shape

FedBizOpps to take advantage of

electronic tools that have widespread

commercial acceptance and interface

with sellers’ electronic tools, and can

adapt to new tools as they gain

commercial acceptance. FedBizOpps

allows sellers and service providers to

access and download information

through different commercial electronic

means and business applications,

including web-based technology, bulk

data feed, and push technology through

electronic mail (e-mail). This ability to

accommodate various business

techniques means that sellers can

choose the means they find more

suitable (i.e., direct or service-provider

27408 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

enhanced) for gaining access to Federal

business opportunities.

Some comments have urged greater

reliance on the private sector in

providing access. The Government has a

strong interest in ensuring potential

sources have reliable electronic access

to notices of open market contracting

opportunities. For this reason, until

more standardized processes evolve to

ensure more reliable and accurate

searches, it is appropriate for the

Government to ensure access by

managing the technological architecture

for doing so. In the future, it may be

possible for the Government to rely on

sellers’ use of commercial tools to

identify Government business

opportunities without the Government

having to manage a technological

architecture.

3. This Second Interim Rule

Public comments received in response

to first interim rule and the proposed

rule were considered in drafting this

second interim rule. This rule

designates FedBizOpps as the GPE.

Agencies must make notices of

contracting opportunities that meet the

criteria in FAR 5.101 and 5.201

accessible via FedBizOpps. In addition,

the rule—

• Adds place of contract performance

and set-aside status to the required

notice content;

• Requires agencies to make

accessible through FedBizOpps other

notices that are currently published in

the CBD, such as presolicitation notices

and award notices supporting

subcontracting opportunities;

• Requires agencies to make

accessible via FedBizOpps most

solicitations and amendments

associated with business opportunities

listed on the FedBizOpps website;

• Permits contractors to publicize

subcontracting opportunities with the

intent of supporting achievement of

subcontracting goals; and

• Permits agencies to make accessible

via FedBizOpps information that allows

potential offerors to better understand

how they can meet the Government’s

needs.

Agencies must provide access to all

applicable actions through FedBizOpps

by October 1, 2001. This phase-in

period is designed to better enable

agencies to achieve a smooth transition

to FedBizOpps.

This second interim rule also

implements section 810, which was

enacted after publication of the

proposed rule. Public comment is

specifically sought on this rule’s

implementation of section 810.

Section 810 amends section 18 of the

Office of Federal Procurement Policy

Act (41 U.S.C. 416) and section 8(e) of

the Small Business Act (15 U.S.C.

637(e)). As amended, these provisions

allow agencies to provide access to their

notices of solicitation either by

transmitting them to the GPE designated

in the FAR or by publishing them in the

Commerce Business Daily (CBD) rather

than mandating notice through the CBD

as had previously been required.

This rule establishes FedBizOpps (the

designated GPE) as the principal venue

for procurement notices. As noted

above, agencies must begin transmitting

notices to FedBizOpps no later than

October 1, 2001. Until January 1, 2002,

agencies must also direct FedBizOpps to

forward the information to the CBD,

using the current format prescribed for

the electronic version of CBD,

Commerce Business Daily Network

(CBDNet). The duplication of notices

transmitted to FedBizOpps in the CBD

through the end of calendar year 2001

will provide additional time for vendors

to become acclimated to FedBizOpps as

the GPE. On and after January 1, 2002,

agencies will no longer be required to

provide duplicate notice in the CBD and

instead may rely exclusively on the

mandatory notice in FedBizOpps to

provide the required access.

Since public comments received in

response to the first interim rule and the

proposed rule have already been

addressed, comments on the issues

unique to this second interim rule are

especially requested.

This is a significant regulatory action

and, therefore, was 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 changes may 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 the

interim rule establishes FedBizOpps as

the single GPE for all large and small

business entities accessing notices of

proposed contract actions, solicitations,

and related procurement information.

We have prepared an Initial Regulatory

Flexibility Analysis. The analysis is

summarized as follows:

The interim rule further implements

section 850 of the National Defense

Authorization Act for Fiscal Year 1998, Pub.

L. 105–85 and section 810 of the Floyd D.

Spence National Defense Authorization Act

for Fiscal Year 2001, Pub. L. 106–398.

Section 850 amends Titles 10, 15, 40, and 41

of the United States Code to eliminate the

preference for electronic commerce within

Federal agencies to be conducted on the

Federal Acquisition Computer Network

(FACNET) computer architecture. Section

810 amends 41 U.S.C. 416 and 15 U.S.C. 637

to allow solicitation notices to be published

via a single point of entry on the Internet

designated in the FAR or via the Commerce

Business Daily.

The objectives of the rule are (1) to

designate a single point of entry on the

Internet, http://www.fedbizopps.gov, where

agencies will be required (as of October 1,

2001), to provide convenient and universal

public access to information on their

procurement opportunities, and (2) to permit

electronic access to notices of solicitation

through the single point of entry as a

substitute for the currently required paper

publication in the CBD beginning on January

1, 2002.

The interim rule will apply to all large and

small entities that do business or are

planning to do business with the

Government. FedBizOpps is designed to be

sufficiently versatile to allow sellers and

service providers to access and download

information through different commercial

electronic means, including web-based

technology, bulk data feeds, and electronic

mail. This versatility will enable the more

than 47,340 small and 29,200 large

businesses to have easy access to

Government business opportunities.

The rule imposes no reporting,

recordkeeping, or other compliance

requirements. Basic skill in operating a

personal computer with access to the Internet

is required to access the GPE website. The

estimated purchase cost of a personal

computer, modem, software, telephone lines,

and Internet access is $1,600. The benefit of

increased access to Federal contracting

opportunities should far outweigh these

additional costs.

The rule does not duplicate, overlap, or

conflict with any other Federal rules. There

are no practical alternatives that will

accomplish the objectives of this rule.

The FAR Secretariat has submitted a

copy of the IRFA to the Chief Counsel

for Advocacy of the Small Business

Administration. Interested parties may

obtain a copy from the FAR Secretariat.

The Councils will consider comments

from small entities concerning the

affected FAR Parts 2, 4, 5, 6, 7, 9, 12,

13, 14, 19, 22, 34, 35, and 36 in

accordance with 5 U.S.C. 610. Interested

parties must submit such comments

separately and should cite 5 U.S.C. 601,

et seq. (FAC 97–26, FAR case 1997–

304), in correspondence.

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.

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27409

D. Determination To Issue an Interim

Rule

The public has previously been given

an opportunity to comment on the

proposed designation of FedBizOpps as

the Governmentwide point of entry

(GPE). A determination has been made

under the authority of the Secretary of

Defense (DoD), the Administrator of

General Services (GSA), and the

Administrator of the National

Aeronautics and Space Administration

(NASA) that urgent and compelling

reasons exist to promulgate the

remainder of this interim rule (i.e., the

ending on January 1, 2002, of the

mandatory forwarding of notices

through the GPE to the Commerce

Business Daily (CBD)) without prior

opportunity for public comment.

Permitting electronic notice of business

opportunities through the designated

GPE as a substitute for the currently

required paper publication in the CBD

is key to agencies’ ability to realize the

efficiencies in electronic processes that

justify agency investments in these

processes. This action is, therefore,

necessary to reinforce agency

commitment to the use of electronic

processes that provide enhanced, user

friendly vendor access to Federal

business opportunities. However,

pursuant to Public Law 98–577 and FAR

1.501, public comments received in

response to this interim rule will be

considered in formulating the final rule.

List of Subjects in 48 CFR Parts 2, 4, 5,

6, 7, 9, 12, 13, 14, 19, 22, 34, 35, and

36

Government procurement.

Dated: May 10, 2001.

Al Matera,

Director, Acquisition Policy Division.

Therefore, DoD, GSA, and NASA

amend 48 CFR parts 2, 4, 5, 6, 7, 9, 12,

13, 14, 19, 22, 34, 35, and 36 as set forth

below:

1. The authority citation for 48 CFR

parts 2, 4, 5, 6, 7, 9, 12, 13, 14, 19, 22,

34, 35, and 36 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 2—DEFINITIONS OF WORDS

AND TERMS

2. Amend section 2.101 by adding, in

alphabetical order, the definition

‘‘Commerce Business Daily (CBD)’’;

revising the definition ‘‘Federal

Acquisition Computer Network

(FACNET) Architecture’’; and adding

the definition ‘‘Governmentwide point

of entry (GPE)’’ to read as follows:

2.101 Definitions.

* * * * *

Commerce Business Daily (CBD)

means the publication of the Secretary

of Commerce used to fulfill statutory

requirements to publish certain public

notices in paper form.

* * * * *

Federal Acquisition Computer

Network (FACNET) Architecture is a

Government system that provides user

access, employs nationally and

internationally recognized data formats,

and allows the electronic data

interchange of acquisition information

between the private sector and the

Federal Government.

* * * * *

Governmentwide point of entry (GPE)

means the single point where

Government business opportunities

greater than $25,000, including

synopses of proposed contract actions,

solicitations, and associated

information, can be accessed

electronically by the public. The GPE is

located at http://www.fedbizopps.gov.

* * * * *

PART 4—ADMINISTRATIVE MATTERS

4.502 [Amended]

3.–4. Amend section 4.502 in

paragraph (b)(4) by adding the word

‘‘single’’ after the word ‘‘a’’ the first time

it is used; and by removing ‘‘single,’’

which precedes ‘‘Governmentwide’’.

5. Amend section 4.803 by revising

paragraph (a)(4) to read as follows:

4.803 Contents of contract files.

* * * * *

(a) * * *

(4) Synopsis of proposed acquisition

as required by part 5 or a reference to

the synopsis.

* * * * *

PART 5—PUBLICIZING CONTRACT

ACTIONS

6. Add section 5.003 to read as

follows:

5.003 Governmentwide point of entry.

For any requirement in the FAR to

publish a notice, the contracting officer

may transmit the notice to the

Commerce Business Daily (CBD) if the

contracting office lacks the capability to

access the Governmentwide point of

entry (GPE) and the notice is issued

prior to October 1, 2001. Effective

October 1, 2001, the contracting officer

must transmit all notices to the GPE.

7. Amend section 5.101 by removing

the introductory paragraph and revising

paragraph (a) to read as follows:

5.101 Methods of disseminating

information.

(a) As required by the Small Business

Act (15 U.S.C. 637(e)) and the Office of

Federal Procurement Policy Act (41

U.S.C. 416), contracting officers must

disseminate information on proposed

contract actions as follows:

(1) For proposed contract actions

expected to exceed $25,000, by

synopsizing in the GPE (see 5.201),

unless covered by 5.003.

(2) For proposed contract actions

expected to exceed $10,000, but not

expected to exceed $25,000, by

displaying in a public place, or by any

appropriate electronic means, an

unclassified notice of the solicitation or

a copy of the solicitation satisfying the

requirements of 5.207(d) and (g). The

notice must include a statement that all

responsible sources may submit a

response which, if timely received, must

be considered by the agency. The

information must be posted not later

than the date the solicitation is issued,

and must remain posted for at least 10

days or until after quotations have been

opened, whichever is later.

(i) If solicitations are posted instead of

a notice, the contracting officer may

employ various methods of satisfying

the requirements of 5.207(d) and (g). For

example, the contracting officer may

meet the requirements of 5.207(d) and

(g) by stamping the solicitation, by a

cover sheet to the solicitation, or by

placing a general statement in the

display room.

(ii) The contracting officer need not

comply with the display requirements

of this section when the exemptions at

5.202(a)(1), (a)(4) through (a)(9), or

(a)(11) apply, when oral or Federal

Acquisition Computer Network

(FACNET) solicitations are used, or

when providing access to a notice of

proposed contract action and

solicitation through the GPE and the

notice permits the public to respond to

the solicitation electronically.

(iii) Contracting officers may use

electronic posting of requirements in a

place accessible by the general public at

the Government installation to satisfy

the public display requirement.

Contracting offices using electronic

systems for public posting that are not

accessible outside the installation must

periodically publicize the methods for

accessing the information.

* * * * *

8. Revise section 5.102 to read as

follows:

5.102 Availability of solicitations.

(a)(1) Except as provided in paragraph

(a)(4) of this section, the contracting

27410 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

officer must make available through the

GPE solicitations synopsized through

the GPE, including specifications and

other pertinent information determined

necessary by the contracting officer.

Transmissions to the GPE must be in

accordance with the interface

description available via the Internet at

http://www.fedbizopps.gov.

(2) The contracting officer is

encouraged, when practicable and costeffective, to make accessible through the

GPE additional information related to a

solicitation.

(3) The contracting officer must

ensure that solicitations transmitted to

FACNET are forwarded to the GPE to

satisfy the requirements of paragraph

(a)(1) of this section.

(4) The contracting officer need not

make a solicitation available through the

GPE when—

(i) Disclosure would compromise the

national security (e.g., would result in

disclosure of classified information) or

create other security risks. The fact that

access to classified matter may be

necessary to submit a proposal or

perform the contract does not, in itself,

justify use of this exception;

(ii) The nature of the file (e.g., size,

format) does not make it cost-effective

or practicable for contracting officers to

provide access through the GPE;

(iii) The agency’s senior procurement

executive makes a written

determination that access through the

GPE is not in the Government’s interest;

or

(iv) The contracting office lacks the

capability to access the GPE and the

synopsis is issued prior to October 1,

2001.

(b) When the contracting officer does

not make a solicitation available

through the GPE pursuant to paragraph

(a)(4) of this section, the contracting

officer—

(1) Should employ other electronic

means (e.g., CD–ROM or electronic

mail) whenever practicable and costeffective. When solicitations are

provided electronically on physical

media (e.g., disks) or in paper form, the

contracting officer must—

(i) Maintain a reasonable number of

copies of solicitations, including

specifications and other pertinent

information determined necessary by

the contracting officer (upon request,

potential sources not initially solicited

should be mailed or provided copies of

solicitations, if available);

(ii) Provide copies on a ‘‘first-comefirst-served’’ basis, for pickup at the

contracting office, to publishers, trade

associations, information services, and

other members of the public having a

legitimate interest (for construction, see

36.211); and

(iii) Retain a copy of the solicitation

and other documents for review by and

duplication for those requesting copies

after the initial number of copies is

exhausted; and

(2) May require payment of a fee, not

exceeding the actual cost of duplication,

for a copy of the solicitation document.

(c) In addition to the methods of

disseminating proposed contract

information in 5.101(a) and (b), provide,

upon request to small business

concerns, as required by 15 U.S.C.

637(b)—

(1) A copy of the solicitation and

specifications. In the case of

solicitations disseminated by electronic

data interchange, solicitations may be

furnished directly to the electronic

address of the small business concern;

(2) The name and telephone number

of an employee of the contracting office

who will answer questions on the

solicitation; and

(3) Adequate citations to each

applicable major Federal law or agency

rule with which small business

concerns must comply in performing

the contract.

(d) When electronic commerce (see

subpart 4.5) is used in the solicitation

process, availability of the solicitation

may be limited to the electronic

medium.

(e) Provide copies of a solicitation

issued under other than full and open

competition to firms requesting copies

that were not initially solicited, but only

after advising the requester of the

determination to limit the solicitation to

a specified firm or firms as authorized

under part 6.

(f) This section 5.102 applies to

classified contracts to the extent

consistent with agency security

requirements (see 5.202(a)(1)).

9. Revise section 5.201 to read as

follows:

5.201 General.

(a) As required by the Small Business

Act (15 U.S.C. 637(e)) and the Office of

Federal Procurement Policy Act (41

U.S.C. 416), agencies must make notices

of proposed contract actions available as

specified in paragraph (b) of this

section.

(b)(1) For acquisitions of supplies and

services, other than those covered by the

exceptions in 5.202 and the special

situations in 5.205, the contracting

officer must transmit a notice to the

GPE, for each proposed—

(i) Contract action meeting the

threshold in 5.101(a)(1);

(ii) Modification to an existing

contract for additional supplies or

services that meets the threshold in

5.101(a)(1); or

(iii) Contract action in any amount

when advantageous to the Government.

(2) When transmitting notices to the

GPE before January 1, 2002, contracting

officers must direct the GPE to forward

the notice to the CBD.

(3) When transmitting notices to

FACNET, contracting officers must

ensure the notice is forwarded to the

GPE. For notices published before

January 1, 2002, contracting officers

must ensure that the notices are

forwarded by the GPE to the CBD.

(c) The primary purposes of the notice

are to improve small business access to

acquisition information and enhance

competition by identifying contracting

and subcontracting opportunities.

(d)(1) The GPE may be accessed via

the Internet at http://

www.fedbizopps.gov.

(2) Subscriptions to the CBD must be

placed with the Superintendent of

Documents, Government Printing

Office, Washington, DC 20402,

Telephone (202) 512–1800.

10. Amend section 5.202 by revising

paragraph (a)(13)(ii) to read as follows:

5.202 Exceptions.

* * * * *

(a) * * *

(13) * * *

(ii) Will be made through a means that

provides access to the notice of

proposed contract action through the

GPE; and

* * * * *

11. Amend section 5.203 by revising

the introductory text, paragraphs (a), (b),

(e), the first sentence of paragraph (g),

and paragraph (h) to read as follows:

5.203 Publicizing and response time.

Whenever agencies are required to

publicize notice of proposed contract

actions under 5.201, they must proceed

as follows:

(a) An agency must transmit a notice

of proposed contract action to the GPE

(see 5.201). All publicizing and

response times are calculated based on

the date of publication. For notices

published before January 1, 2002, the

publication date is the date the notice is

published in the CBD. For notices

published on or after January 1, 2002,

the publication date is the date the

notice appears on the GPE. The notice

must be published at least 15 days

before issuance of a solicitation except

that, for acquisitions of commercial

items, the contracting officer may—

(1) Establish a shorter period for

issuance of the solicitation; or

(2) Use the combined synopsis and

solicitation procedure (see 12.603).

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27411

(b) The contracting officer must

establish a solicitation response time

that will afford potential offerors a

reasonable opportunity to respond to

each proposed contract action,

(including actions via FACNET or for

which the notice of proposed contract

action and solicitation information is

accessible through the GPE), in an

amount estimated to be greater than

$25,000, but not greater than the

simplified acquisition threshold; or each

contract action for the acquisition of

commercial items in an amount

estimated to be greater than $25,000.

The contracting officer should consider

the circumstances of the individual

acquisition, such as the complexity,

commerciality, availability, and

urgency, when establishing the

solicitation response time.

* * * * *

(e) Agencies must allow at least a 45-

day response time for receipt of bids or

proposals from the date of publication

of the notice required in 5.201 for

proposed contract actions categorized as

research and development if the

proposed contract action is expected to

exceed the simplified acquisition

threshold.

* * * * *

(g) Contracting officers may, unless

they have evidence to the contrary,

presume that notice has been published

10 days (6 days if electronically

transmitted through the GPE or other

means) following transmittal of the

synopsis to the CBD.

* * * * *

(h) In addition to other requirements

set forth in this section, for acquisitions

subject to NAFTA or the Trade

Agreements Act (see subpart 25.4), the

period of time between publication of

the synopsis notice and receipt of offers

must be no less than 40 days. However,

if the acquisition falls within a general

category identified in an annual

forecast, the availability of which is

published, the contracting officer may

reduce this time period to as few as 10

days.

12. Revise section 5.204 to read as

follows:

5.204 Presolicitation notices.

Contracting officers must provide

access to presolicitation notices through

the GPE (see 15.201 and 36.213–2). The

contracting officer must synopsize a

proposed contract action before issuing

any resulting solicitation (see 5.201 and

5.203).

13. Revise section 5.205 to read as

follows:

5.205 Special situations.

(a) Research and development (R&D)

advance notices. Contracting officers

may transmit to the GPE advance

notices of their interest in potential R&D

programs whenever market research

does not produce a sufficient number of

concerns to obtain adequate

competition. Advance notices must not

be used where security considerations

prohibit such publication. Advance

notices will enable potential sources to

learn of R&D programs and provide

these sources with an opportunity to

submit information which will permit

evaluation of their capabilities. Potential

sources which respond to advance

notices must be added to the

appropriate solicitation mailing list for

subsequent solicitation. Advance

notices must be entitled ‘‘Research and

Development Sources Sought,’’ cite the

appropriate Numbered Note, and

include the name and telephone number

of the contracting officer or other

contracting activity official from whom

technical details of the project can be

obtained. This will enable sources to

submit information for evaluation of

their R&D capabilities. Contracting

officers must synopsize (see 5.201) all

subsequent solicitations for R&D

contracts, including those resulting from

a previously synopsized advance notice,

unless one of the exceptions in 5.202

applies.

(b) Federally Funded Research and

Development Centers. Before

establishing a Federally Funded

Research and Development Center

(FFRDC) (see Part 35) or before changing

its basic purpose and mission, the

sponsor must transmit at least three

notices over a 90-day period to the GPE

and the Federal Register, indicating the

agency’s intention to sponsor an FFRDC

or change the basic purpose and mission

of an FFRDC. The notice must indicate

the scope and nature of the effort to be

performed and request comments.

Notice is not required where the action

is required by law. When transmitting

notices to the GPE before January 1,

2002, contracting officers must direct

the GPE to forward the notice to the

CBD.

(c) Special notices. Contracting

officers may transmit to the GPE special

notices of procurement matters such as

business fairs, long-range procurement

estimates, prebid or preproposal

conferences, meetings, and the

availability of draft solicitations or draft

specifications for review.

(d) Architect-engineering services.

Contracting officers must publish

notices of intent to contract for

architect-engineering services as

follows:

(1) Except when exempted by 5.202,

contracting officers must transmit to the

GPE a synopsis of each proposed

contract action for which the total fee

(including phases and options) is

expected to exceed $25,000. When

transmitting notices to the GPE before

January 1, 2002, contracting officers

must direct the GPE to forward the

notice to the CBD. The notice must

reference the appropriate CBD

Numbered Note.

(2) When the total fee is expected to

exceed $10,000 but not exceed $25,000,

the contracting officer must comply

with 5.101(a)(2). When the proposed

contract action is not required to be

synopsized under paragraph (d)(1) of

this section, the contracting officer must

display a notice of the solicitation or a

copy of the solicitation in a public place

at the contracting office. Other optional

publicizing methods are authorized in

accordance with 5.101(b).

(e) Effort to locate commercial sources

under OMB Circular A–76. When

determining the availability of

commercial sources under the

procedures prescribed in subpart 7.3

and OMB Circular A–76, the contracting

officer must not arrive at a conclusion

that there are no commercial sources

capable of providing the required

supplies or services until publicizing

the requirement through the GPE at least

three times in a 90 calendar-day period,

with a minimum of 30 calendar days

between notices. When necessary to

meet an urgent requirement, this may be

limited to a total of two notices through

the GPE in a 30 calendar-day period,

with a minimum of 15 calendar days

between each. When transmitting

notices to the GPE before January 1,

2002, contracting officers must direct

the GPE to forward the notice to the

CBD.

(f) Section 8(a) competitive

acquisition. When a national buy

requirement is being considered for

competitive acquisition limited to

eligible 8(a) concerns under subpart

19.8, the contracting officer must

transmit a synopsis of the proposed

contract action to the GPE. When

transmitting notices to the GPE before

January 1, 2002, contracting officers

must direct the GPE to forward the

notice to the CBD. The synopsis may be

transmitted to the GPE concurrent with

submission of the agency offering (see

19.804–2) to the Small Business

Administration (SBA). The synopsis

should also include information—

(1) Advising that the acquisition is

being offered for competition limited to

eligible 8(a) concerns;

27412 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

(2) Specifying the North American

Industry Classification System (NAICS)

code;

(3) Advising that eligibility to

participate may be restricted to firms in

either the developmental stage or the

developmental and transitional stages;

and

(4) Encouraging interested 8(a) firms

to request a copy of the solicitation as

expeditiously as possible since the

solicitation will be issued without

further notice upon SBA acceptance of

the requirement for the section 8(a)

program.

14. Amend section 5.206 by revising

the introductory text of paragraph (a) to

read as follows:

5.206 Notices of subcontracting

opportunities.

(a) The following entities may

transmit a notice to the GPE, the CBD,

or both to seek competition for

subcontracts, to increase participation

by qualified HUBZone small business,

small, small disadvantaged, and small

women-owned business concerns, and

to meet established subcontracting plan

goals:

* * * * *

15. Amend section 5.207 by—

a. Redesignating paragraphs (a)

through (h) as (b) through (i),

respectively, and by adding a new

paragraph (a);

b. Revising newly designated

paragraph (b);

c. Revising the introductory text of

newly designated paragraph (c), and

adding under ‘‘Format Item and

Explanation/Description of Entry’’ item

numbers 18 and 19; and

d. Revising the newly designated

paragraph (i). The revised text reads as

follows:

5.207 Preparation and transmittal of

synopses.

(a) Content. Each synopsis transmitted

to the GPE or CBD must address the

following data elements, as applicable:

(1) Action Code.

(2) Date.

(3) Year.

(4) Government Printing Office (GPO)

Billing Account Code.

(5) Contracting Office Zip Code.

(6) Classification Code.

(7) Contracting Office Address.

(8) Subject.

(9) Proposed Solicitation Number.

(10) Opening and Closing Response

Date.

(11) Contact Point or Contracting

Officer.

(12) Contract Award and Solicitation

Number.

(13) Contract Award Dollar Amount.

(14) Contract Line Item Number.

(15) Contract Award Date.

(16) Contractor.

(17) Description.

(18) Place of Contract Performance.

(19) Set-aside Status.

(b) Transmittal—(1) GPE.

Transmissions must be in accordance

with the interface description available

via the Internet at http://

www.fedbizopps.gov.

(2) CBD—(i) Electronic transmission.

All synopses transmitted electronically

to the CBD, other than through the GPE

(see 5.003), must be in ASCII Code.

Contact your agency’s communications

center for the appropriate transmission

instructions or services.

(ii) Hard copy transmission. When

electronic transmission is not feasible

(see 5.003), synopses should be sent to

the CBD via mail or other physical

delivery of hard copy and should be

addressed to the Commerce Business

Daily, U.S. Department of Commerce,

P.O. Box 77880, Washington, DC 20013-

8880.

(c) Format for the CBD. The

contracting officer must prepare the

synopsis in the following style and

format to assure timely processing of the

synopsis by the Commerce Business

Daily.

* * * * *

Format Item and Explanation/

Description of Entry

* * * * *

18. PLACE OF CONTRACT

PERFORMANCE. (Include where

applicable; where not applicable, enter

N/A.)

19. SET-ASIDES. (Identify if the

proposed acquisition provides for a total

or partial set-aside, a very small

business set-aside, or a HUBZone small

business set-aside. If not a set-aside,

enter N/A.)

* * * * *

(i) Cancellation of synopsis.

Contracting officers should not publish

notices of solicitation cancellations (or

indefinite suspensions) of proposed

contract actions in the GPE or CBD.

Cancellations of solicitations must be

made in accordance with 14.209 and

14.404–1.

16. Amend section 5.301 by revising

the introductory text of paragraph (a); by

revising paragraphs (b)(7)(ii) and (c);

and by adding paragraph (d) to read as

follows:

5.301 General.

(a) Except for contract actions

described in paragraph (b) of this

section and as provided in 5.003,

contracting officers must synopsize

through the GPE awards exceeding

$25,000 that are—

* * * * *

(b) * * *

(7) * * *

(ii) Was made through a means where

access to the notice of proposed contract

action was provided through the GPE;

and

* * * * *

(c) With respect to acquisitions

subject to the Trade Agreements Act,

contracting officers must submit

synopses in sufficient time to permit

publication in the CBD, through the

GPE, not later than 60 days after award.

(d) When transmitting notices to the

GPE before January 1, 2002, contracting

officers must direct the GPE to forward

the notice to the CBD.

17. Amend section 5.404–1 by

revising paragraph (b)(3)(iii) to read as

follows:

5.404–1 Release procedures.

* * * * *

(b) * * *

(3) * * *

(iii) More specific information relating

to any individual item or class of items

will not be furnished until the proposed

action is synopsized through the GPE or

the solicitation is issued;

* * * * *

18. Revise section 5.404–2 to read as

follows:

5.404–2 Announcements of long-range

acquisition estimates.

Further publicizing, consistent with

the needs of the individual case, may be

accomplished by announcing through

the GPE that long-range acquisition

estimates have been published and are

obtainable, upon request, from the

contracting officer.

PART 6—COMPETITION

REQUIREMENTS

6.303–2 [Amended]

19. Amend section 6.303–2 in

paragraph (a)(6) by removing ‘‘CBD’’.

PART 7—ACQUISITION PLANNING

20. Amend section 7.303 in paragraph

(a) and the introductory text of

paragraph (b) by removing ‘‘shall’’ and

adding ‘‘must’’ in their place; and by

revising paragraph (b)(1) to read as

follows:

7.303 Determining availability of private

commercial sources.

* * * * *

(b) * * *

(1) Synopsizing the requirement

through the Governmentwide point of

Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations 27413

entry (GPE) in accordance with 5.205(e)

until a reasonable number of potential

sources are identified. If necessary, a

synopsis must be submitted up to three

times in a 90-day period with a

minimum of 30 days between notices

(but, when necessary to meet an urgent

requirement, this notification may be

limited to a total of two notices in a 30-

day period with a minimum of 15 days

between them); and

* * * * *

PART 9—CONTRACTOR

QUALIFICATIONS

21. Amend section 9.204 in the

introductory text of paragraph (a) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place; and by revising paragraph

(a)(1) to read as follows:

9.204 Responsibilities for establishment of

a qualification requirement.

* * * * *

(a) * * *

(1) Periodically furnish through the

Governmentwide point of entry (GPE) a

notice seeking additional sources or

products for qualification unless the

contracting officer determines that such

publication would compromise the

national security. When transmitting

notices to the GPE, contracting officers

must direct the GPE to forward the

notice to the Commerce Business Daily

(CBD) to satisfy the requirements of 10

U.S.C. 2319(d)(1)(A) and 41 U.S.C.

253c(d)(1)(A).

* * * * *

22. Amend section 9.205 by revising

the introductory text of paragraph (a) to

read as follows:

9.205 Opportunity for qualification before

award.

(a) If an agency determines that a

qualification requirement is necessary,

the agency activity responsible for

establishing the requirement must urge

manufacturers and other potential

sources to demonstrate their ability to

meet the standards specified for

qualification and, when possible, give

sufficient time to arrange for

qualification before award. The

responsible agency activity must, before

establishing any qualification

requirement, furnish notice through the

GPE. When transmitting notices to the

GPE, contracting officers must direct the

GPE to forward the notice to the CBD to

satisfy the requirements of 10 U.S.C.

2319(d)(1)(A) and 41 U.S.C.

253c(d)(1)(A). The notice must

include—

* * * * *

PART 12—ACQUISITION OF

COMMERCIAL ITEMS

23. Amend section 12.603 by revising

paragraphs (a), (c)(2)(xv), (c)(3), and

(c)(4) to read as follows:

12.603 Streamlined solicitation for

commercial items.

(a) When a written solicitation will be

issued, the contracting officer may use

the following procedure to reduce the

time required to solicit and award

contracts for the acquisition of

commercial items. This procedure

combines the synopsis required by

5.203 and the issuance of the

solicitation into a single document.

Section 5.207 limits descriptions in the

CBD to 12,000 textual characters

(approximately 31⁄2 single-spaced

pages).

* * * * *

(c) * * *

(2) * * *

(xv) A statement regarding any

applicable Numbered Notes.

* * * * *

(3) Allow response time for receipt of

offers as follows:

(i) Because the synopsis and

solicitation are contained in a single

document, it is not necessary to

publicize a separate synopsis 15 days

before the issuance of the solicitation.

(ii) When using the combined

synopsis and solicitation, contracting

officers must establish a response time

in accordance with 5.203(b) (but see

5.203(h)).

(4) Publicize amendments to

solicitations in the same manner as the

initial synopsis and solicitation.

PART 13—SIMPLIFIED ACQUISITION

PROCEDURES

24. Amend the introductory

paragraph of section 13.104 and the

introductory text of paragraph (a) by

removing ‘‘shall’’ and adding ‘‘must’’ in

their place; and revise the first sentence

of paragraph (b) to read as follows:

13.104 Promoting competition.

* * * * *

(b) If using simplified acquisition

procedures and neither using FACNET

nor providing access to the notice of

proposed contract action and

solicitation information through the

Governmentwide point of entry (GPE),

maximum practicable competition

ordinarily can be obtained by soliciting

quotations or offers from sources within

the local trade area.* * *

13.105 [Amended]

25. Amend section 13.105 in the

introductory text of paragraph (a) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place; in paragraph (a)(1)(ii) by

removing ‘‘single, Governmentwide

point of entry’’ and adding ‘‘GPE’’ in its

place; in the first sentence of paragraph

(b) by removing ‘‘synopsis/solicitation’’

and ‘‘adding synopsis and solicitation’’

in its place; and in the second sentence

by removing ‘‘such’’ and adding ‘‘these’’

in its place.

PART 14—SEALED BIDDING

26. Revise section 14.203–2 to read as

follows:

14.203–2 Dissemination of information

concerning invitations for bids.

(a) Procedures concerning display of

invitations for bids in a public place,

information releases to newspapers and

trade journals, paid advertisements, and

synopsizing through the

Governmentwide point of entry (GPE)

are set forth in 5.101 and Subpart 5.2.

(b) For procedures that apply to

publicizing notices through the GPE to

determine whether commercial sources

are available, as prescribed by OMB

Circular A–76, see 5.205(e) and 7.303(b).

27. Amend section 14.503–2 by

revising paragraphs (a)(4) and (b) to read

as follows:

14.503–2 Step two.

(a) * * *

(4) Not be synopsized through the

Governmentwide point of entry (GPE) as

an acquisition opportunity nor publicly

posted (see 5.101(a)).

(b) The names of firms that submitted

acceptable proposals in step one will be

listed through the GPE for the benefit of

prospective subcontractors (see

5.207(b)(1)).

PART 19—SMALL BUSINESS

PROGRAMS

28. Amend section 19.202–2 by

revising paragraph (c) to read as follows:

19.202–2 Locating small business

sources.

* * * * *

(c) Publicize solicitations and contract

awards through the Governmentwide

point of entry (see subparts 5.2 and 5.3).

29. Amend section 19.804–2—

a. In the first sentence of the

introductory text of paragraph (a) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place;

b. In paragraph (a)(9) by removing

‘‘in’’ and ‘‘Commerce Business Daily’’

and adding ‘‘through’’ and

‘‘Governmentwide point of entry (GPE)’’

in their places, respectively; and

c. By revising the third and fourth

sentences of paragraph (c) to read as

follows:

27414 Federal Register / Vol. 66, No. 95 / Wednesday, May 16, 2001 / Rules and Regulations

19.804–2 Agency offering.

* * * * *

(c) * * * All requirements, including

construction, must be synopsized

through the GPE. For construction, the

synopsis must include the geographical

area of the competition set forth in the

SBA’s acceptance letter.

PART 22—APPLICATION OF LABOR

LAWS TO GOVERNMENT

ACQUISITIONS

30. Amend section 22.1009–4 in

paragraph (a) by removing ‘‘shall’’ and

adding ‘‘must’’ in its place; and by

revising the introductory text of

paragraph (b) to read as follows:

22.1009–4 All possible places of

performance not identified.

* * * * *

(b) Include the following information

in the notice of contract action (see

5.207(g)(4)):

* * * * *

PART 34—MAJOR SYSTEM

ACQUISITION

34.005–2 [Amended]

31. Amend section 34.005–2 in

paragraph (a)(1) by removing

‘‘publication in the Commerce Business

Daily’’ and adding ‘‘publicizing through

the Governmentwide point of entry’’ in

its place.

PART 35—RESEARCH AND

DEVELOPMENT CONTRACTING

32. Amend section 35.004 in the

introductory text of paragraph (a) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place; and by revising paragraph

(a)(1) to read as follows:

35.004 Publicizing requirements and

expanding research and development

sources.

(a) * * *

(1) Early identification and

publication of agency R&D needs and

requirements, including publicizing

through the Governmentwide point of

entry (GPE) (see part 5);

* * * * *

33. Amend section 35.016 by revising

paragraph (c) to read as follows:

35.016 Broad agency announcement.

* * * * *

(c) The availability of the BAA must

be publicized through the

Governmentwide point of entry (GPE)

and, if authorized pursuant to subpart

5.5, may also be published in noted

scientific, technical, or engineering

periodicals. The notice must be

published no less frequently than

annually. When transmitting a notice to

the GPE before January 1, 2002,

contracting officers must direct the GPE

to forward the notice to the Commerce

Business Daily.

* * * * *

PART 36—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

34. Amend section 36.213–2 in the

introductory text of paragraph (b) by

removing ‘‘shall’’ and adding ‘‘must’’ in

its place; and by revising paragraph

(b)(9) to read as follows:

36.213–2 Presolicitation notices.

* * * * *

(b) * * *

(9) Be publicized through the

Governmentwide point of entry in

accordance with 5.204.

[FR Doc. 01–12244 Filed 5–15–01; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 17, 22, and 36

[FAC 97–26; FAR Case 2001–016; Item II]

RIN 9000–AJ14

Federal Acquisition Regulation;

Executive Order 13202, Preservation of

Open Competition and Government

Neutrality Towards Government

Contractors’ Labor Relations on

Federal and Federally Funded

Construction Projects

AGENCIES: Department of Defense (DoD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule with request for

comments.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council

(Councils) have agreed on an interim

rule amending the Federal Acquisition

Regulation (FAR) to implement

Executive Order (E.O.) 13202,

Preservation of Open Competition and

Government Neutrality Towards

Government Contractors’ Labor

Relations on Federal and Federally

Funded Construction Projects, which

prohibits including requirements for

affiliation with a labor organization as a

condition for award of any contract or

subcontract for construction or

construction management services.

DATES: Effective Date: May 16, 2001.

Applicability Date: This rule applies

to contracts awarded after February 17,

2001.

Comment Date: Interested parties

must submit comments to the FAR

Secretariat at the address shown below

on or before July 16, 2001 to be

considered in the formulation of a final

rule.

ADDRESSES: Submit written comments

to: General Services Administration,

FAR Secretariat (MVP), 1800 F Street,

NW, Room 4035, Attn: Ms. Laurie

Duarte, Washington, DC 20405.

Submit electronic comments via the

Internet to: farcase.2001–016@gsa.gov.

Please submit comments only and cite

FAC 97–26, FAR case 2001–016 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 Ms.

Linda Nelson, Procurement Analyst, at

(202) 501–1900. Please cite FAC 97–26,

FAR case 2001–016.

SUPPLEMENTARY INFORMATION:

A. Background

On February 17, 2001, President

George W. Bush signed E.O. 13202

revoking E.O. 12836 of February 1,

1993, and Presidential Memorandum of

June 5, 1997, entitled ‘‘Use of Project

Labor Agreements for Federal

Construction Projects.’’ The E.O. was

published in the Federal Register at 66

FR 11225, February 22, 2001, and

amended by E.O. 13208 published in

the Federal Register at 66 FR 18717,

April 11, 2001. The E.O. 13202 is

intended to improve the internal

management of the Executive branch

by—

• Promoting and ensuring open

competition on Federal and federally

funded or assisted construction projects;

• Maintaining Government neutrality

towards Government contractors’ labor

relations on Federal and federally

funded or assisted construction projects;

• Reducing construction costs to the

Government and to the taxpayers;

• Expanding job opportunities,

especially for small and disadvantaged

businesses;

• Preventing discrimination against

Government contractors or their

employees based upon labor affiliation

or lack thereof, thereby promoting the

economical, nondiscriminatory, and

efficient administration and completion

of Federal and federally funded or

assisted construction projects; and