12366 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 2, 3, 4, 5, 6, 8, 9, 13, 15,

16, 22, 23, 25, 27, 28, 29, 32, 36, 41, 42,

43, 44, 45, 46, 47, 49, 52, and 53

[FAR Case 94–770]

RIN 9000–AG18

Federal Acquisition Regulation;

Simplified Acquisition Procedures/

FACNET

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule.

SUMMARY: This proposed rule is issued

pursuant to the new simplified

acquisition and Federal Acquisition

Computer Network (FACNET)

requirements of the Federal Acquisition

Streamlining Act of 1994 (the Act). This

regulatory action was subject to Office

of Management and Budget review

under Executive Order 12866 dated

September 30, 1993.

DATES: Comments: Comments should be

submitted on or before May 5, 1995 to

be considered in the formulation of a

final rule.

Public Meeting: A public meeting will

be held on April 3, 1995, at 9:30 a.m.

in the GSA Auditorium on the first floor

of the GSA Building.

Oral and Written Statements: Persons

wishing to make oral or written

statements at the public meeting should

submit to the FAR Secretariat a copy of

the presentation by March 29, 1995.

ADDRESSES: Interested parties should

submit written comments to:

General Services Administration, FAR

Secretariat (VRS), 18th & F Streets,

NW, Room 4037, Washington, DC

20405.

Please cite FAR case 94–770 in all

correspondence related to this case.

FOR FURTHER INFORMATION CONTACT:

Diana Maykowskyj, Team Leader,

Simplified Acquisition Procedures/

FACNET Team, on (703) 274–6307 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405 (202) 501–755.

Please cite FAR Case 94–770, Simplified

Acquisition Procedures.

SUPPLEMENTARY INFORMATION:

A. Background

The Federal Acquisition Streamlining

Act of 1994, Pub. L. 103–355, (the Act)

provides authorities that streamline the

acquisition process and minimize

burdensome Government-unique

requirements. Major changes that can be

expected in the acquisition process as a

result of the Act’s implementation

include the areas of commercial item

acquisition, simplified acquisition

procedures, the Truth in Negotiation

Act and FACNET.

The terms ‘‘simplified acquisition’’

and ‘‘Federal Acquisition Computer

Network (FACNET)’’ are defined by the

Federal Acquisition Streamlining Act of

1994 (the Act). The Act defines the

simplified acquisition threshold as

$100,000. It limits use of simplified

acquisition procedures by procurement

activities not having certified Interim

FACNET to procurements not exceeding

$50,000. Use of simplified acquisition

procedures is also limited to

procurements not exceeding $50,000 if

an agency does not have certified Full

FACNET by January 1, 2000.

Review of the law and the proposed

implementing rule requires that the

difference between the simplified

acquisition threshold and the use of

simplified acquisition procedures be

recognized. The simplified acquisition

threshold is $100,000. The authority to

use simplified acquisition procedures

depends on implementation and proper

certification of FACNET.

This rule proposes to incorporate FAR

Subpart 4.5 for FACNET information

and guidance. FAR Subpart 4.5 provides

definitions, certification information,

and exemptions in accordance with the

Act. FAR case 91–104 (‘‘Electronic

Commerce’’) and this implementation of

the Act are interdependent and are

meant to be considered jointly.

Reviewers are advised that FACNET is

not a single electronic system that will

be used by all executive agencies. It is,

however, a universal electronic

capability that will permit potential

contractors to, as a minimum, obtain

information on proposed procurements,

submit questions, and receive awards on

a government-wide basis. Each agency

will determine the system(s) that will be

used by its procuring activities so that

they can certify Interim FACNET for

those activities and Full FACNET for

the agency. The Act and the proposed

rule also provide for exempting

individual procurements and procuring

activities from the use of FACNET. This

becomes significant when agencies

certify Full FACNET which is based, in

part, on the percentage of non-exempt

transactions which were made through

FACNET during the previous fiscal year.

Implementation of FACNET

(Electronic Commerce) will include a

vendor registration requirement for any

business entity wishing to do business

with the Government electronically.

Contractor’s information will be

submitted to the Centralized Contractor

Registration System in accordance with

the Federal implementation

conventions.

There are technical requirements and

other procedures with respect to

FACNET that are not appropriate for

coverage in the FAR but are needed by

executive agencies to fully implement

FACNET. This information will be

disseminated via other appropriate

means.

Public Meeting. A public meeting will

be held on April 3, 1995 at 9:30 a.m. in

the GSA Auditorium to enable the

public to present its views on this rule.

This rule will only be discussed at the

public meeting session. Any subsequent

public meetings will be devoted to other

revisions to the FAR. Persons or

organizations wishing to make

presentations will be allowed 10

minutes each to present their views,

provided they notify the FAR

Secretariat, at (202) 501–4755. Written

statements for presentation should be

submitted to the FAR Secretariat by

March 29, 1995. Persons or

organizations with similar positions are

encouraged to select a common

spokesman for presentation of their

views. This meeting, in conjunction

with the Federal Register notice

soliciting public comments on the rule,

will be the only opportunity for the

public to present its views.

This rule overlaps in some areas with

the ‘‘Electronic Commerce’’ rule (FAR

case 91–104) appearing elsewhere in

this issue of the Federal Register.

Presenters are welcome to submit

prepared statements concerning the

‘‘electronic commerce’’ rule to the

extent that the statement has some

interrelation with this simplified

acquisition/FACNET rule.

Interested members of the public may

obtain a copy of the desired rule from

the FAR Secretariat, see ADDRESSES

caption.

B. Regulatory Flexibility Act

The proposed rule may have a

significant positive 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 it is designed to reduce the

burden on entities desiring to do

business with the Government and will

apply to all large and small business
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12367

entities, and all educational and nonprofit organizations who are interested

in participating in Government

acquisitions. The proposed rule

establishes the simplified acquisition

threshold and sets forth policies and

guidance for the implementation of

FACNET pursuant to the Act. The

implementation of FACNET will

provide for electronic exchange of

acquisition information between the

private sector and the Federal

Government that will increase the

opportunities for vendors currently

doing business with the Government,

particularly small businesses. As a

result of the Act, procurements between

$2,500 and $100,000 are exclusively

reserved for small business. It is

recognized that an initial start-up cost

will be incurred for purchase of

personal computer, modem, software,

and telephone lines estimated to be

$1,500. Additionally, it is anticipated

that most small businesses will

subscribe to third party value added

network (VAN) service to facilitate their

communications with the Government’s

computers. The cost of advance

subscription ranges from approximately

$30 to $100 per month, depending on

the type of services obtained. The

benefit of increased business

opportunities should far outweigh these

initial start-up costs.

An Initial Regulatory Flexibility

Analysis (IRFA) has been prepared and

will be provided to the Chief Council for

Advocacy for the Small Business

Administration. A copy of the IRFA may

be obtained from the FAR Secretariat.

Comments from small entities

concerning the affected FAR parts will

also be considered in accordance with 5

U.S.C. 610. Such comments must be

submitted separately and cite 5 U.S.C.

601, et seq. (FAR case 94–770), in

correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act (Pub.

L. 96–511) applies because the proposed

rule contains information collection

requirements that need the approval of

the Office of Management and Budget

(OMB) under 44. U.S.C. 3501 et seq.

Contractors will be required to

electronically register with the Federal

Contractor Registration System operated

by the Defense Information Megacenter.

The information to be provided

electronically is information currently

reported under several existing forms,

including SF–129, Solicitation Mailing

List Application, the SF–3881, ACH

vendor/Miscellaneous Payment

Enrollment Form, and the DD–2051,

request for Assignment of a Commercial

and Government Entity information

pertaining to their EDI capabilities.

Establishment of a central registration

system should eliminate the need to

submit multiple registrations with each

contracting office the contractor is doing

business with.

A request for approval of a new

information collection requirement

concerning simplified acquisition

procedures is being submitted to the

OMB. Public comments concerning this

request are invited through a Federal

Register notice published elsewhere in

this issue.

List of Subjects in 48 CFR Parts 2, 3, 4,

5, 6, 8, 9, 13, 15, 16, 22, 23, 25, 27, 28,

29, 32, 36, 41, 42, 43, 44, 45, 46, 47, 49,

52, and 53

Government procurement.

Edward C. Loeb,

Deputy Project Manager for Implementation

of the Federal Acquisition Streamlining Act

of 1994.

Therefore, 48 CFR Chapter 1 is

proposed to be amended as set forth

below:

1. The authority citation for 48 CFR

Parts 2, 3, 4, 5, 6, 8, 9, 13, 15, 16, 22,

23, 25, 27, 28, 29, 32, 36, 41, 42, 43, 44,

45, 46, 47, 49, 52, and 53 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. Section 2.201 is revised to read as

follows:

2.201 Contract clause.

The contracting officer shall insert the

clause at 52.202–1, Definitions, in

solicitations and contracts except when

the contract is not expected to exceed

the simplified acquisition threshold in

Part 13. If the contract is for personal

services, construction, architectengineer services, or dismantling,

demolition, or removal of

improvements, the contracting officer

shall use the clause with its Alternate I.

Additional definitions may be included,

provided they are consistent with the

clause and the FAR.

PART 3—IMPROPER BUSINESS

PRACTICES AND PERSONAL

CONFLICTS OF INTEREST

3. Section 3.103–1 is amended by

revising paragraph (a) to read as follows:

3.103–1 Solicitation provision.

* * * * *

(a) The acquisition is to be made

under the simplified acquisition

procedures in Part 13;

* * * * *

4. Section 3.104–10 is amended by

revising paragraph (c) to read as follows:

3.104–10 Solicitation provision and

contract clauses.

* * * * *

(c) The contracting officer shall insert

the clause at 52.203–10, Price or Fee

Adjustment for Illegal or Improper

Activity, in all solicitations where the

resultant contract award is expected to

exceed the simplified acquisition

threshold (see 13.000) and all contracts

and modifications to contracts

exceeding that threshold which do not

already contain the clause when the

modification is expected to exceed that

threshold.

* * * * *

5. Section 3.404 is amended by

revising paragraphs (b)(1) and (c) to read

as follows:

3.404 Solicitation provision and contract

clause.

* * * * *

(b) * * *

(1) The contract amount is expected to

be at or below the simplified acquisition

threshold in Part 13;

* * * * *

(c) The contracting officer shall insert

the clause at 52.203–5, Covenant

Against Contingent Fees, in solicitations

and contracts exceeding the simplified

acquisition threshold.

6. Section 3.502–3 is revised to read

as follows:

3.502–3 Contract clause.

The contracting officer shall insert the

clause at 52.203–7, Anti-Kickback

Procedures, in solicitations and

contracts exceeding the simplified

acquisition threshold in Part 13.

7. Section 3.503–2 is revised to read

as follows:

3.503–2 Contract clause.

The contracting officer shall insert the

clause at 52.203–6, Restrictions on

Subcontractor Sales to the Government,

in solicitations and contracts exceeding

the simplified acquisition threshold in

Part 13.

PART 4—ADMINISTRATIVE MATTERS

8. Part 4 is amended by adding

Subpart 4.5, consisting of sections 4.500

through 4.507, to read as follows:

Subpart 4.5—Electronic Commerce in

Contracting

Sec.

4.500 Scope of subpart.

4.501 Definitions.

4.502 Policy.

4.503 Contractor registration.

4.504 FACNET functions.

4.505 FACNET certification.
12368 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

4.505–1 Interim certification.

4.505–2 Full certification.

4.505–3 Governmentwide certification.

4.505–4 Contract actions excluded.

4.506 Exemptions.

4.507 Contract actions using simplified

acquisition procedures.

4.500 Scope of subpart.

This subpart provides policy and

procedures for the establishment and

use of FACNET as required by Section

30 of the Office of Federal Procurement

Policy (OFPP) Act (41 U.S.C. 426).

4.501 Definitions.

‘‘ANSI X12’’ means the designation

assigned by the American National

Standards Institute (ANSI) for the

structure, format, and content of

electronic business transactions

conducted through Electronic Data

Interchange (EDI). The American

National Standards Institute is the

coordinator and clearinghouse for

national standards in the United States.

‘‘Federal Acquisition Computer

Network (FACNET)’’ means the

governmentwide Electronic Commerce/

Electronic Data Interchange systems

architecture for the acquisition of

supplies and services that provides for

electronic data interchange of

acquisition information between the

government and the private sector,

employs nationally and internationally

recognized data formats, and provides

universal user access.

‘‘Full FACNET’’ means an agency has

certified that it has implemented all of

the FACNET functions outlined in 4.504

and more than 75 percent of eligible

contracts (not otherwise exempted from

FACNET) in amounts exceeding the

micro-purchase threshold, but not

exceeding the simplified acquisition

threshold (see Part 13), were entered

into by the agency during the preceding

fiscal year using FACNET.

‘‘Governmentwide FACNET’’ means

that the Federal government has

certified its FACNET capability and

more than 75 percent of eligible

contracts in amounts exceeding the

micro-purchase threshold, but not

exceeding the simplified acquisition

threshold (see Part 13), entered into by

the executive agencies during the

preceding fiscal year were made through

full FACNET.

‘‘Interim FACNET’’ means a

contracting activity has been certified as

having implemented a capability to

provide widespread public notice of,

and issue, solicitations and receive

responses to solicitations and associated

requests for information through

FACNET. Such capability must allow

the private sector to access notices of

solicitations, access and review

solicitations, and respond to

solicitations.

‘‘Transaction Set’’ means the data that

is exchanged to convey meaning

between Trading Partners engaged in

EC/EDI.

‘‘Value-Added Network (VAN)’’

means an entity that provides

communications services, electronic

mailboxing and other communications

services for EDI transmissions.

‘‘Value-Added Service (VAS)’’ means

an entity that provides services beyond

communications to its customers. These

services may range from translation and

segregation of the data to complete turnkey business systems support for

customers.

4.502 Policy.

(a) The Federal government shall

acquire supplies and services via

FACNET whenever practicable or cost

effective.

(b) FACNET is the preferred method

of acquiring supplies and services

exceeding the micro-purchase threshold

and not exceeding the simplified

acquisition threshold (see 13.103(b)).

(c) Contracting officers are authorized

to use FACNET for any contract action

governed by the FAR, unless

specifically exempted by agencies.

(d) Before using electronic data

interchange, agencies shall ensure that

the electronic data interchange system is

capable of ensuring authentication and

confidentiality commensurate with the

risk and magnitude of the harm from

loss, misuse, or unauthorized access to

or modification of the information.

4.503 Contractor registration.

(a) In order for a contractor to conduct

electronic commerce with the Federal

government, the contractor must

provide registration information to the

Centralized Contractor Registration

System.

(b) The contractor will be required to

submit information in accordance with

the Federal implementation conventions

of the ASC ANSI X.12 transaction set for

contractor registration.

4.504 FACNET functions.

(a) FACNET shall allow agencies to do

the following electronically—

(1) Provide widespread public notice

of contracting opportunities, and issue

solicitations;

(2) Receive responses to solicitations

and associated requests for information;

(3) Provide public notice of awards of

contracts and orders (including price);

(4) Receive questions regarding

solicitations, if practicable;

(5) Issue contracts and orders, if

practicable;

(6) Initiate payments to contractors, if

practicable; and,

(7) Archive data relating to each

procurement action.

(b) FACNET shall allow the private

sector to do the following electronically:

(1) Access notices of solicitations;

(2) Access and review solicitations;

(3) Respond to solicitations;

(4) Receive contracts and orders, if

practicable;

(5) Access information on awards of

contracts and orders; and,

(6) Receive payment by purchase

card, electronic funds transfer, or other

automated means, if practicable.

4.505 FACNET certification.

4.505–1 Interim certification.

A contracting activity is considered to

have implemented interim FACNET if:

(a) The contracting activity has

implemented the FACNET functions

described in 4.504(a) (1) and (2), and (b)

(1), (2), and (3); and issues notices of

solicitations and receives responses to

solicitations in a system having those

functions.

(b) The contracting activity is using

FACNET for contracts (not otherwise

exempted, see 4.506), that exceed the

micro-purchase threshold and do not

exceed the simplified acquisition

threshold;

(c) The senior procurement executive

of the agency, or the Under Secretary of

Defense for Acquisition and Technology

for the Department of Defense, has

certified to the Administrator of OFPP

that the contracting activity has

implemented interim FACNET.

(d) The senior procurement executive

of the agency, or the Under Secretary of

Defense for Acquisition and Technology

for the Department of Defense, shall

notify the private sector via the

Commerce Business Daily that a

contracting activity of the agency has

certified interim FACNET. The notice

shall establish a date after which it will

be required that all responses to

solicitations issued by the contracting

activity through FACNET, must be

submitted through FACNET, unless

otherwise authorized.

4.505–2 Full certification.

An agency is considered to have

implemented full FACNET if:

(a) The agency has implemented all of

the FACNET functions described in

4.504; and

(b) During the preceding fiscal year,

more than 75 percent of the agency’s

eligible contract actions, not otherwise

exempted (see 4.506), that exceeded the

micro-purchase threshold but did not

exceed the simplified acquisition

threshold were made via FACNET; and
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12369

(c) The head of the agency, with the

concurrence of the Administrator of

OFPP, has certified to the Congress that

the agency has implemented full

FACNET.

(d) Eligible contracts do not include

any class or classes of contracts that the

Federal Acquisition Regulatory Council

determines, after October 13, 1997, are

not suitable for acquisition through

FACNET.

4.505–3 Governmentwide certification.

The Federal Government is

considered to have implemented

Governmentwide FACNET if:

(a) During the preceding fiscal year, at

least 75 percent of eligible contracts

entered into by executive agencies that

exceeded the micro-purchase threshold

and did not exceed the simplified

acquisition threshold were made via full

FACNET; and

(b) The Administrator of OFPP has

certified implementation of

governmentwide FACNET to the

Congress.

4.505–4 Contract actions excluded.

For purposes of calculating the

percentage of FACNET use referred to in

4.505–2 and 4.505–3, actions issued

against established contracts, such as

delivery orders, task orders, and in

scope modifications shall not be

included.

4.506 Exemptions.

The following contracts are exempted

from the use of FACNET, as specified

below, and shall not be considered

when determining compliance with the

requirements to implement FACNET:

(a) Interim FACNET.

(1) Classes of procurements exempted

by the head of the contracting activity

after a written determination is made

that FACNET processing of those

procurements is not cost effective or

practicable; and specific purchases for

which the contracting officer determines

that it is not practicable or cost effective

to process via FACNET. Such

determinations shall be centrally

maintained at the contracting activity.

(2) Contracts that do not require

notice under subpart 5.202.

(b) Full FACNET—Contracts made by

a contracting activity (or a portion of a

contracting activity), if the activity is

exempted from use of FACNET by the

head of the agency or the Under

Secretary of Defense for Acquisition and

Technology for the Department of

Defense. Any such exemption shall be

based on a written determination that

FACNET processing is not cost effective

or practicable for the contracting

activity, or portions thereof.

Determinations shall be maintained in

the office of the senior procurement

executive or the Under Secretary of

Defense for Acquisitions and

Technology for the Department of

Defense.

4.507 Contract actions using simplified

acquisition procedures.

Contracting officers shall refer to

section 13.106 for evaluation and

documentation requirements when

awarding contracts using simplified

acquisition procedures.

9. Section 4.800 is revised to read as

follows:

4.800 Scope of subpart.

This subpart prescribes requirements

for establishing, maintaining, and

disposing of contract files for all

contractual actions. The application of

this subpart to contracts made using the

simplified acquisition procedures

covered by Part 13 is optional. (See also

documentation requirements in 13.106–

2).

10. Section 4.804–1 is amended by

revising paragraphs (a)(1) and (a)(2) to

read as follows:

4.804–1 Closeout by the office

administering the contract.

(a) * * *

(1) Files for contracts using simplified

acquisition procedures should be

considered closed when the contracting

officer receives evidence of receipt of

property and final payment, unless

otherwise specified by agency

regulations.

(2) Files for firm-fixed-price contracts

other than those using simplified

acquisition procedures should be closed

within 6 months after the date in which

the contracting officer receives evidence

of physical completion.

* * * * *

11. Section 4.804–2 is amended by

revising paragraph (a) to read as follows:

4.804–2 Closeout of the contracting office

files if another office administers the

contract.

(a) Contract files for contracts using

simplified acquisition procedures

should be considered closed when the

contracting officer receives evidence of

receipt of property and final payment,

unless otherwise specified by

regulation.

* * * * *

12. Section 4.805 is amended in the

table in paragraph (b) by revising the

entries in the ‘‘Document’’ column of

paragraphs (b)(5), (10), (11), and (13) to

read as follows:

4.805 Storage, handling and disposal of

contract files.

* * * * *

(b) * * *

Document

Retention

period

* * * * *

(5) Unsuccessful offers or quotations

that pertain to contracts using simplified acquisition procedures ........ ...........

* * * * *

(10) Records or documents other

than those in paragraphs 4.805(b)

(1)–(9) of this section pertaining to

contracts using simplified acquisition procedures ............................. ...........

* * * * *

(11) Records or documents other

than those in paragraphs 4.805(b)

(1)–(10) of this section pertaining

to contracts using simplified acquisition procedures ........................... ...........

* * * * *

(13) Solicited and unsolicited unsuccessful offers and quotations

above the appropriate simplified

acquisition threshold in Part 13 .... ...........

* * * * *

PART 5—PUBLICIZING CONTRACT

ACTIONS

13. Section 5.002 is amended by

revising paragraph (c) to read as follows:

5.002 Policy.

* * * * *

(c) Assist small business concerns,

small disadvantaged business concerns,

and women owned small businesses in

obtaining contracts and subcontracts.

14. Section 5.101 is amended by

revising paragraphs (a) introductory

text, (a)(1), and (a)(2) introductory text

and (a)(2)(ii) to read as follows:

5.101 Methods of disseminating

information.

* * * * *

(a) As required by the Small Business

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

Federal Procurement Policy Act (41

U.S.C. 416), and unless the contract

action is being made by a contracting

activity that has been certified as having

implemented a system with interim

(until December 31, 1999) or full (after

December 31, 1999) FACNET and the

contract action will be made through

FACNET, contracting officers shall

disseminate information on proposed

contract actions as follows:

(1) For contract actions expected to

exceed $25,000, by synopsizing in the
12370 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

Commerce Business Daily (CBD) (see

section 5.201); and

(2) For proposed contract actions

expected to exceed $10,000 ($5,000 for

Defense activities), but not expected to

exceed $25,000, by displaying in a

public place at the contracting office

issuing the solicitation, an unclassified

notice of the solicitation or a copy of the

solicitation satisfying the requirements

of 5.207(c) and (f). The notice shall

include a statement that all responsible

sources may submit a quotation which,

if timely received, shall be considered

by the agency. Such information shall

be posted not later than the date the

solicitation is issued and remain posted

for at least 10 days or until after

quotations have been opened,

whichever is later.

* * * * *

(ii) The contracting officer need not

comply with the display requirements

set forth above when the exemptions at

5.202(a)(1), (5) through (9) or (11) apply,

or when oral solicitations are used. The

exemption from display requirements

does not relieve the contracting officer

from the responsibility to consider all

quotations timely received from

responsible sources.

* * * * *

15. Section 5.202 is amended by

adding paragraph (a)(13) to read as

follows:

5.202 Exceptions.

* * * * *

(a) * * *

13. The contract action is for an

amount at or below $250,000 and is

made through certified FACNET after

Governmentwide FACNET has been

certified. This exception does not apply

when the contract action is not made

through certified FACNET. (see Subpart

4.5)

* * * * *

16. Section 5.203 is amended by

redesignating paragraphs (b) through (f)

as (c) through (g), adding a new

paragraph (b) and and revising newly

designated (c), (d), and (e) to read as

follows:

5.203 Publicizing and response time.

* * * * *

(b) The contracting officer shall

establish a solicitation response time

which will afford potential offerors a

reasonable opportunity to respond for

each contract action, including actions

via FACNET, in an amount estimated to

be greater than $25,000, but not greater

than the simplified acquisition

threshold. The contracting officer

should consider the circumstances of

the individual procurement such as the

complexity, commerciality (see Part 12),

availability, and urgency when

establishing the solicitation response

time.

(c) Agencies shall allow at least a 30

day response time for receipt of bids or

proposals from the date of issuance of

a solicitation if the contract action is

expected to exceed the simplified

acquisition threshold.

(d) Agencies shall allow at least a 30

day response time from the date of

publication of a proper notice of intent

to contract for architect-engineer

services or before issuance of an order

under a basic ordering agreement or

similar arrangement if the contract

action is expected to exceed the

simplified acquisition threshold.

(e) Agencies shall 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

contract actions categorized as research

and development if the contract action

is expected to exceed the simplified

acquisition threshold.

* * * * *

17. Section 5.205 is amended by

revising paragraph (d)(1) to read as

follows:

5.205 Special situations.

* * * * *

(d) * * *

(1) Except when exempted by 5.202,

synopsize each proposed contract action

for which the total fee (including phases

and options) is expected to exceed

$25,000. Reference shall be made to the

appropriate CBD Numbered Note.

* * * * *

18. Section 5.207 is amended by

redesignating paragraphs (c)(2)(xi)

through (c)(2)(xv) as (c)(2)(xii) through

(c)(2)(xvi), adding new paragraph

(c)(2)(xi), and revising newly

redesignated (c)(2)(xiv) to read as

follows:

5.207 Preparation and transmittal of

synopses.

* * * * *

(c) * * *

(2) * * *

(xi) For a contract action in an amount

estimated to be greater than $25,000 but

not greater than the simplified

acquisition threshold, enter (A) a

description of the procedures to be used

in awarding the contract (e.g., request

for quotation or solicitation) and (B) the

anticipated award date.

* * * * *

(xiv) In the case of noncompetitive

contract actions insert a statement of the

reason justifying other than full and

open competition, and identify the

intended source(s) (see 5.207(e)(3)).

* * * * *

19. Section 5.301 is amended by

adding a new (b)(7) to read as follows:

5.301 General.

* * * * *

(b) * * *

(7) The contract action is for an

amount greater than $25,000 but not

greater than the simplified acquisition

threshold, the contract action is made

by a contracting activity that has been

certified as having implemented a

system with interim (until December 31,

1999) or full (after December 31, 1999)

FACNET, and the contract action has

been made through FACNET.

* * * * *

20. Section 5.303 is amended by

revising the introductory text of

paragraph (b) to read as follows:

5.303 Announcement of contract awards.

* * * * *

(b) Local announcement. Agencies

may also release information on contract

awards to the local press or other media.

When local announcements are made

for contract awards in excess of the

simplified acquisition threshold in

13.000, they shall include—

* * * * *

21. Section 5.503 is amended by

revising paragraph (c)(1), to read as

follows:

5.503 Procedures.

* * * * *

(c) Forms. (1) When contracting

directly with the media for advertising,

contracting officers:

(i) Shall use Standard Form 26,

Award/Contract, or Standard Form

1447, Solicitation/Contract, when the

dollar amount of the acquisition exceeds

the simplified acquisition threshold; or

(ii) May use Optional Form 347, Order

for Supplies or Services, or an approved

agency form, when the dollar amount of

the acquisition does not exceed the

threshold for use of simplified

acquisition procedures (see Part 13).

* * * * *

PART 6—COMPETITION

REQUIREMENTS

22. Section 6.001 is amended by

revising paragraph (a) to read as follows:

6.001 Applicability.

* * * * *

(a) Contracts awarded using the

simplified acquisition procedures of

Part 13;

* * * * *
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12371

PART 8—REQUIRED SOURCES OF

SUPPLIES AND SERVICES

23. Section 8.203–1 is amended by

revising paragraph (a)(1) to read as

follows:

8.203–1 Contract clause and solicitation

provision.

(a) * * *

(1) Contract actions not exceeding the

simplified acquisition threshold under

Part 13;

* * * * *

PART 9—CONTRACTOR

QUALIFICATIONS

* * * * *

24. Section 9.405–2 is amended by

revising the second sentence of

paragraph (b) introductory text to read

as follows:

9.405–2 Restrictions on subcontracting.

* * * * *

(b) * * * Contractors shall not enter

into any subcontract in excess of the

simplified acquisition threshold with a

contractor that has been debarred,

suspended, or proposed for debarment

unless there is a compelling reason to

do so. * * *

* * * * *

25. Section 9.409 is revised to read as

follows:

9.409 Solicitation provision and contract

clause.

(a) The contracting officer shall insert

the provision at 52.209–5, Certification

Regarding Debarment, Suspension,

Proposed Debarment, and Other

Responsibilities Matters, in solicitations

where the contract value is expected to

exceed the simplified acquisition

threshold.

(b) The contracting officer shall insert

the clause at 52.209–6, Protecting the

Government’s Interests when

Subcontracting with Contractors

Debarred, Suspended, or Proposed for

Debarment, in solicitations and

contracts where the contract value

exceeds the simplified acquisition

threshold.

26. Section 9.507–1 is amended by

revising paragraph (c) to read as follows:

9.507–1 Solicitation provisions.

* * * * *

(c) The contracting officer shall insert

the provision at 52.209–8,

Organizational Conflicts of Interest

Certificate—Advisory and Assistance

Services, in solicitations for advisory

and assistance services if the contract is

expected to exceed the simplified

acquisition threshold.

* * * * *

PART 13—SIMPLIFIED ACQUISITION

PROCEDURES

27. 13.000 is revised to read as

follows.

13.000 Scope of part.

This part prescribes policies and

procedures for the acquisition of

supplies and services, including

construction and research and

development, the aggregate amount of

which does not exceed the simplified

acquisition threshold (see 13.103(b)).

See 36.602–5 for simplified procedures

to be used when acquiring architectengineering services.

28. 13.101 is amended by revising the

definitions of ‘‘bulk funding,’’ ‘‘delivery

order,’’ and ‘‘purchase order,’’;

removing the definitions of ‘‘small

purchase,’’ and ‘‘small purchase

procedures,’’ and adding, in

alphabetical order, definitions for

‘‘imprest fund,’’ ‘‘simplified acquisition

procedures,’’ and ‘‘simplified

acquisition threshold’’.

13.101 Definitions.

‘‘Bulk funding,’’ means a system

whereby a contracting officer receives

authorization from a fiscal and

accounting officer to obligate funds on

purchase documents against a specified

lump sum of funds reserved for the

purpose for a specified period of time

rather than obtaining individual

obligation authority on each purchase

document.

‘‘Delivery Order,’’ means an order for

supplies or services placed against an

established contract or with

Government sources of supply.

* * * * *

‘‘Imprest Fund,’’ means a cash fund of

a fixed amount established by an

advance of funds, without charge to an

appropriation, from an agency finance

or disbursing officer to a duly appointed

cashier, for disbursement as needed

from time to time in making payment in

cash for relatively small amounts.

* * * * *

‘‘Purchase order,’’ as used in this part,

means an offer by the Government to

buy supplies or services, including

construction and research and

development, upon specified terms and

conditions, using simplified acquisition

procedures.

‘‘Simplified acquisition procedures,’’

means the methods prescribed in this

part for making purchases of supplies or

services using imprest funds, purchase

orders, blanket purchase agreements,

governmentwide commercial purchase

cards, FACNET or any other appropriate

authorized method. Contracting Officers

are encouraged to use innovative

approaches in awarding contracts using

the simplified acquisition procedures

under the authority of Part 13. For

example, the procedures of other FAR

Parts may, as appropriate, be adapted

for use in awarding contracts under this

part. Other FAR Parts that may be

adapted include, but are not limited to,

(1) Part 14, Sealed Bidding; (2) Part 15,

Contracting by Negotiation; (3) Part 12,

Acquisition of Commercial Items; or (4)

Part 36, Construction and ArchitectEngineer Contracts, including the use of

Standard Form 1442, Solicitation, Offer

and Award (Construction, Alteration, or

Repair), for construction contracts (see

36.701(b)).

‘‘Simplified acquisition threshold,’’

means $100,000 (but see 13.103(b)). In

the case of any DoD acquisition to be

awarded and performed, or purchase to

be made, outside the United States in

support of a military contingency

operation (10 U.S.C. 101(a)(13)), the

term means $200,000.

29. 13.102 is revised to read as

follows:

13.102 Purpose.

The purpose of this part is to

prescribe simplified acquisition

procedures in order to (a) reduce

administrative costs; (b) improve

opportunities for small business, small

disadvantaged business, and women

owned small business concerns to

obtain a fair proportion of Government

contracts; (c) promote efficiency and

economy in contracting; and, (d) avoid

unnecessary burdens for agencies and

contractors.

30. 13.103 is revised to read as

follows:

13.103 Policy.

(a) Simplified acquisition procedures

shall be used to the maximum extent

practicable for all purchases of supplies

or services not exceeding the simplified

acquisition threshold unless

requirements can be met by using

required sources of supply (see Part 8).

(b) Simplified acquisition procedures

may not be used for contract actions

exceeding $50,000, and not exceeding

the simplified acquisition threshold,

unless the contracting activity making

the purchase has been certified as

having interim FACNET. The

contracting activity shall not use

simplified acquisition procedures for

contract actions exceeding $50,000 after

December 31, 1999, unless the activity’s

cognizant agency has certified full

FACNET capability pursuant to section

4.505–2.

(c) Simplified acquisition procedures

shall not be used in the acquisition of

supplies and services initially estimated
12372 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

to exceed the simplified acquisition

threshold even though resulting awards

do not exceed that threshold.

Requirements aggregating more than the

simplified acquisition threshold shall

not be broken down into several

purchases that are less than the

threshold merely to permit negotiation

under simplified acquisition

procedures.

(d) Simplified acquisition procedures

may be used to acquire personal

services if the agency has specific

statutory authority to acquire personal

services (see 37.104).

(e) FACNET is the preferred means for

effecting the acquisition of supplies and

services, including construction and

research and development, in amounts

exceeding the micro-purchase threshold

but not exceeding the simplified

acquisition threshold.

(f) Contracting officers shall establish

deadlines for the submission of

responses to solicitations which afford

contractors a reasonable opportunity to

respond.

31. 13.104 is revised to read as

follows:

13.104 Procedures.

(a) Contracting officers shall make

awards under this part in the simplified

manner that is most suitable, efficient,

and economical in the circumstances of

each acquisition. Contracting officers

may use the procedures in this part in

acquisitions from Government supply

sources (see Part 8), if their use is

authorized by the basic contract or

concurred in by the source.

(b) Related items (such as small

hardware items or spare parts for

vehicles) may be included in one

solicitation and the award made on an

‘‘all-or-none’’ basis if suppliers are so

advised when quotations are requested.

(c) Agencies shall use bulk funding to

the maximum extent practicable to

reduce processing time, handling, and

documentation. Bulk funding is

particularly appropriate if numerous

purchases using the same type of funds

are to be made during a given period.

(d) Agencies shall inspect items or

services acquired under simplified

acquisition procedures as prescribed in

section 46.404.

(e) Agencies shall use United Statesowned foreign currency, if appropriate,

in making payments when using

simplified acquisition procedures (see

Subpart 25.3).

(f) For proposed purchases covered by

this part, see 5.101 for public display

requirements.

32. 13.105 is revised to read as

follows:

13.105 Small Business Set-asides.

(a) Except as provided in paragraphs

(b), (c), and (d), of this section, each

acquisition of supplies or services that

has an anticipated dollar value

exceeding the micro-purchase threshold

(see Subpart 13.6) and not exceeding

$100,000, is reserved exclusively for

small business concerns and shall be

set-aside (see 19.503–3).

(b) The requirements of this section

apply only to purchases in the United

States, its territories and possessions,

Puerto Rico, and the Trust Territory of

the Pacific Islands (see 19.000). Foreign

concerns shall not be solicited or

awarded acquisitions reserved for small

business concerns.

(c) The requirements of this section

do not affect the responsibility of

agencies to make purchases from

required sources of supply, such as

Federal Prison Industries, Committee for

Purchase from People who are Blind or

Severely Disabled, and Federal Supply

Schedule contracts.

(d)(1) Each written solicitation under

a small business set-aside shall contain

the provision at 52.219–6, Notice of

Total Small Business Set-Aside. If the

solicitation is oral, however,

information substantially identical to

that which is in the provision shall be

given to potential quoters.

(2) If the contracting officer

determines there is no reasonable

expectation of obtaining quotations from

two or more responsible small business

concerns that will be competitive in

terms of market price, quality, and

delivery, the contracting officer need

not proceed with the small business setaside and may purchase on an

unrestricted basis. If the SBA

procurement center representative

disagrees with a contracting officer’s

decision not to proceed with the small

business set-aside, the SBA

procurement center representative may

appeal the decision in accordance with

the procedures set forth in 19.402.

(3) If the contracting officer proceeds

with the set-aside and receives a

quotation from only one responsible

small business concern at a reasonable

price (see 13.106–2(a)), the contracting

officer shall make an award to that

concern. However, if the contracting

officer does not receive a reasonable

quotation from a responsible small

business concern, the contracting officer

may cancel the set-aside and complete

the purchase on an unrestricted basis.

(4) When proceeding under 13.105(d)

(1) or (2), the contracting officer shall

ascertain the availability of small

business suppliers by telephone or other

informal means (see 13.106–1(a)(7)).

(5) If the purchase is on an

unrestricted basis under 13.105(d)(2),

the contracting officer shall document

in the file the reason for the unrestricted

purchase.

(6) Nothing in this section 13.105

shall preclude award, using simplified

acquisition procedures, of an

acquisition exceeding the micropurchase threshold and not exceeding

$50,000 ($100,000 when FACNET has

been implemented) under:

(i) 19.8, Contracting with the Small

Business Administration;

(ii) 19.1006(c), emerging small

business set-asides; or

(iii) 19.503–2, as a small

disadvantaged business set-aside.

(7)(i) Acquisitions exceeding the

micro-purchase threshold in Subpart

13.6 and not in excess of $25,000 for

supplies and services in the four

designated industry groups pursuant to

the Small Business Competitiveness

Demonstration Program (see 19.10) are

set-aside for emerging small businesses.

(ii) For acquisitions exceeding

$25,000 in the four designated industry

groups pursuant to the Small Business

Competitiveness Demonstration

Program, see 19.10.

33. 13.106 text is removed and the

heading is revised to read as follows:

13.106 Purchases exceeding the micropurchase threshold.

34. 13.106–1 is added to read as

follows:

13.106–1 Soliciting competition,

evaluation of quotes, and award.

(a) Soliciting competition. (1)

Contracting officers shall solicit a

reasonable number of sources to

promote competition to the maximum

extent practicable and ensure that the

purchase is advantageous to the

Government, based, as appropriate on

either price alone, or price and other

factors (e.g., past performance and

quality considered, including the

administrative cost of the purchase).

Requests for quotations or solicitations

shall notify suppliers that award is to be

made based on price alone, or price and

other factors.

(2) FACNET is the preferred method

of soliciting and awarding simplified

acquisitions. However, if FACNET is not

available, or the contracting officer has

made a determination that it is not

practicable or cost effective to process a

specific purchase via FACNET, or the

head of the contracting activity has

made a determination that it is not

practicable or cost effective to process a

class of purchases via FACNET (see

Subpart 4.506), quotations may be

solicited through other appropriate
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12373

means. Requests for quotations should

be solicited orally to the maximum

extent practicable for contract actions

not to exceed $25,000 when FACNET is

not available or a determination has

been made that it is practicable or cost

effective to purchase via FACNET.

Paper solicitations for contract actions

not expected to exceed $25,000 should

only be issued when obtaining

electronic or oral quotations is not

considered economical or practical.

Solicitations for construction contracts

over $2,000 shall only be issued

electronically or by paper solicitation.

(3) When not soliciting quotations

electronically, maximum practicable

competition ordinarily can be obtained

without soliciting quotations or offers

from sources outside the trade area in

which the contracting office is located

for actions that do not exceed $25,000.

Generally, solicitation of at least three

sources may be considered to promote

competition to the maximum extent

practicable if the contract action does

not exceed $25,000. If practicable, two

sources not included in the previous

solicitation should be requested to

furnish quotations. The following

factors influence the number of

quotations required in connection with

any particular purchase:

(i) The nature of the article or service

to be purchased and whether it is highly

competitive and readily available in

several makes or brands, or is relatively

noncompetitive.

(ii) Information obtained in making

recent purchases of the same or similar

item.

(iii) The urgency of the proposed

purchase.

(iv) The dollar value of the proposed

purchase.

(v) Past experience concerning

specific dealers’ prices.

(4) Contracting officers may solicit

from one source if the contracting

officer determines that the

circumstances of the contract action

deem only one source being reasonably

available (e.g., only one available

source, urgency).

(5) Contracting officers shall not limit

solicitations to suppliers of well known

and widely distributed makes or brands,

nor shall quotations be solicited on a

personal preference basis. If required to

maintain a list of sources, new supply

sources disclosed through trade journals

or other media, shall be continuously

reviewed and, if appropriate, added to

the list.

(6) Consistent with the applicable

principles in 14.407–3, contracting

officers shall make every effort to obtain

trade and prompt payment discounts.

However, prompt payment discounts

shall not be considered in the

evaluation of quotations.

(7)(i) Unless exempted from this

requirement by the head of the

contracting activity or purchases are

made through FACNET, each

contracting office should maintain a

source list (or lists, if more convenient)

and should record on the list the status

of each source (when the status is made

known to the contracting office) in the

following categories:

(A) Small business.

(B) Small disadvantaged business.

(C) Women-owned small business.

(ii) The status information should be

used to ensure that small business

concerns are given opportunities to

respond to solicitations issued using

simplified acquisition procedures.

(b) Evaluation of quotes. (1)

Contracting officers may evaluate

quotations or offers based on price alone

or price and other factors (e.g., past

performance, or quality). When

evaluating quotations or offers on price

and other factors, contractor’s

quotations or offers shall be evaluated

solely on the basis of criteria established

in the solicitation. Methods to

accomplish this may include, but are

not limited to simplified solicitations,

streamlined evaluation methods, and

award with simplified award

documentation. Formal evaluation

plans, conduct of discussions and

scoring of quotes or offers are not

required. Evaluation of other factors

does not require the creation or

existence of a formal data base, but may

be based on such information as the

contracting officer’s knowledge,

previous experience, or customer

surveys.

(2) If suppliers furnish standing price

quotations on supplies or services

required on an intermittent and

recurring basis, the information may be

used in lieu of obtaining individual

quotations each time a purchase is

contemplated. The buyer shall ensure

that the price information is current and

that the Government obtains the benefit

of maximum discounts.

(3) Contracting officers shall evaluate

quotations inclusive of transportation

charges from the shipping point of the

supplier to the delivery destination.

(4) Contracting officers shall comply

with the policy in section 7.202 relating

to economic purchase quantities, when

practicable.

(c) Award. (1) Occasionally an item

can be obtained only from a supplier

who quotes a minimum order price or

quantity that either unreasonably

exceeds stated quantity requirements or

results in an unreasonable price for the

quantities required. In these instances,

the contracting officer should inform the

requiring activity of all facts regarding

the quotation and request it to confirm

or alter its requirement. The file shall be

documented to support the final action

taken.

(2) Notification to unsuccessful

suppliers shall be given only if

requested. When a supplier requests

information on an award which was

based on other than price alone, the

notification shall include a brief

explanation of the basis for the contract

award decision.

35. 13.106–2 is added to read as

follows:

13.106–2 Data to support purchases.

(a) The determination that a proposed

price is reasonable should be based on

competitive quotations. If only one

response is received, or the price

variance between multiple responses

reflects lack of adequate competition, a

statement shall be included in the

contract file giving the basis of the

determination of fair and reasonable

price. The determination may be based

on a comparison of the proposed price

with prices found reasonable on

previous purchases, current price lists,

catalogs, advertisements, similar items

in a related industry, value analysis, the

contracting officer’s personal knowledge

of the item being purchased or any other

reasonable basis.

(b) When other than price related

factors are considered in selecting the

supplier (see 13.106–1(b)(1)), the

contracting officer shall document the

file to support the final contract award

decision.

(c) If only one source is solicited, an

additional notation shall be made to

explain the absence of competition,

except for acquisition of utility services

available only from one source or of

educational services from nonprofit

institutions.

(d) Simplified documentation

practices should be used. The following

illustrate the extent to which quotation

information should be recorded.

(1) Oral solicitations. The contracting

office should establish and maintain

informal records of oral price quotations

in order to reflect clearly the propriety

of placing the order at the price paid

with the supplier concerned. In most

cases this will consist merely of

showing the names of the suppliers

contacted and the prices and other

terms and conditions quoted by each.

(2) Written (see 2.101) solicitations.

Written records of solicitations may be

limited to notes or abstracts to show

prices, delivery, references to printed

price lists used, the supplier or
12374 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

suppliers contacted, and other pertinent

data.

(e) Purchasing offices shall retain data

supporting purchases using simplified

acquisition procedures to the minimum

extent and duration necessary for

management review purposes. (See

Subpart 4.8)

36. 13.107 is revised to read as

follows:

13.107 Solicitation forms.

(a) Except when quotations are

solicited via FACNET or orally,

Standard Form 18, Request for

Quotations (illustrated in 53.301–18), is

available, but not required, for use by all

agencies.

(b) Optional Form 336, Continuation

Sheet, may be used with Standard Form

18 when additional space is needed.

(c) If Standard Form 18 is not used for

written solicitations, contracting officers

may request quotations using an agencydesigned form, an agency-approved

automated format, or electronically.

(d) Each agency-designed request for

quotations form shall conform with

Standard Form 18, insofar as practical.

(e) When using an unsigned electronic

purchase orders (see 13.506) for

transmission of a request for quotations,

the provisions and clauses applicable to

the solicitation shall be incorporated by

reference.

37. 13.108 is revised to read as

follows:

13.108 Legal effect of quotations.

(a) A quotation is not an offer and,

consequently, cannot be accepted by the

Government to form a binding contract

(see 15.402(e)). Therefore, issuance by

the Government of an order for supplies

or services in response to a suppliers

quotation does not establish a contract.

The order is an offer by the Government

to the supplier to buy certain supplies

or services upon specified terms and

conditions. A contract is established

when the supplier accepts the offer or

begins performance.

(b) When appropriate, the contracting

officer may request the supplier to

indicate acceptance of an order by

notification to the Government,

preferably in writing. In other

circumstances, the supplier may

indicate acceptance by furnishing the

supplies or services ordered or by

proceeding with the work to the point

where substantial performance has

occurred.

(c) If the Government issues an order

resulting from a quotation, the

Government may (by written notice to

the supplier, at any time before

acceptance occurs) withdraw, amend, or

cancel its offer. (See 13.504 for

procedures on termination or

cancellation of purchase orders.)

38. 13.109 is revised to read as

follows:

13.109 Agency use of indefinite delivery

contracts.

Costs and processing time for

acquisitions at or below the simplified

acquisition threshold may be reduced

through the use of indefinite delivery

contracts (see Subpart 16.5) that permit

delivery orders to be placed by several

contracting or ordering offices in one or

more executive agencies. Therefore

contracting offices are encouraged to

seek opportunities to cooperate with

each other to achieve efficiency and

economy through the use of indefinite

delivery contracts.

39. 13.110 is added to read as follows:

13.110 Federal Acquisition Streamlining

Act of 1994 (FASTA) list of inapplicable

laws.

(a) The following laws are

inapplicable to all contracts and

subcontracts (if otherwise applicable to

subcontractors) at or below the

simplified acquisition threshold:

(1) 41 U.S.C. 57(a) & (b) (AntiKickback Act of 1986)(Only the

requirement for the incorporation of the

contractor procedures for the prevention

and detection of violations, and the

contractual requirement for contractor

cooperation in investigations are

inapplicable.)

(2) 40 U.S.C. 27 (Miller Act) (but see

Part 28)

(3) 40 U.S.C. 329 (Contract Work

Hours and Safety Standards Act—

Overtime Compensation)

(4) 41 U.S.C. 701(a)(1) (Section 5152

of the Drug Free Workplace Act of 1988)

(5) 42 U.S.C. 6962 (Solid Waste

Disposal Act) (Only the requirement for

providing the estimate of material

utilized for the performance of the

contract which is recovered materials is

inapplicable.)

(6) 10 U.S.C. 2306(b) and 41 U.S.C.

254(a) (Contract Clause Regarding

Contingent Fees.)

(7) 10 U.S.C. 2313 and 41 U.S.C.

254(c) (Authority to Examine Books and

Records of Contractors.)

(8) 10 U.S.C. 2384(b) (Requirement to

Identify Suppliers and Sources of

Supply.)

(9) 10 U.S.C. 2393(d) (Prohibition

Against Doing Business with Certain

Offerors or Contractors.)

(10) 10 U.S.C. 2402 and 41 U.S.C.

253g (Prohibition on Limiting

Subcontractor Direct Sales to the United

States.)

(11) 10 U.S.C. 2408(a) (Prohibition on

Persons Convicted of Defense Related

Felonies.)

(12) 10 U.S.C. 2410b (Contractor

Inventory Accounting System

Standards.)

(13) 10 U.S.C. 2534 (Miscellaneous

Procurement Limitations.)

(b) The Federal Acquisition

Regulatory Council will include any law

enacted after October 13, 1994 that sets

forth policies, procedures, requirements,

or restrictions for the procurement of

property or services on the list set forth

in 13.110(a), unless the FAR Council

makes a written determination that it is

in the best interests of the government

that the enactment should apply to

contracts or subcontracts not greater

than the simplified acquisition

threshold.

(c) The provisions of 13.110(b) do not

apply to laws that:

(1) provide for criminal or civil

penalties; or

(2) specifically state that

notwithstanding the language of Section

4101, Pub. L. 103–355, the enactment

will be applicable to contracts or

subcontracts in amounts not greater

than the simplified acquisition

threshold.

(d) Any individual may petition the

Administrator for Federal Procurement

Policy to include any applicable

provision of law not included on the list

set forth in 13.110(a) unless the FAR

Council has already determined in

writing that the law is applicable.

(e) The Administrator of OFPP will

include the law on the list in 13.110(a)

unless the FAR Council makes a

determination that it is applicable

within sixty days of receiving the

petition.

40. Subpart 13.2 is revised to read as

follows:

Subpart 13.2—Blanket Purchase

Agreements

Sec.

13.201 General.

13.202 [Reserved]

13.203 Establishment of Blanket Purchase

Agreements.

13.203–1 General.

13.203–2 Clauses.

13.204 Purchases under Blanket Purchase

Agreements.

13.205 Review procedures.

13.206 Completion of Blanket Purchase

Agreements.

13.201 General.

(a) A blanket purchase agreement

(BPA) is a simplified method of filling

anticipated repetitive needs for supplies

or services by establishing ‘‘charge

accounts’’ with qualified sources of

supply (see Subpart 16.7 for additional

coverage of agreements).

(b) BPAs should be established at the

appropriate level responsible for
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12375

providing supplies for its own

operations or for other offices,

installations, projects, or functions.

Such levels, for example, may be

organized supply points, separate

independent or detached field parties,

or one-person posts or activities.

(c) The use of BPAs does not exempt

the agency from the responsibility for

keeping obligations and expenditures

within available funds, but this should

be done by using simplified methods

and by avoiding formal fiscal recording

of individual deliveries and

transactions.

13.202 [Reserved]

13.203 Establishment of Blanket Purchase

Agreements.

13.203–1 General.

(a) The following are circumstances

under which contracting officers may

establish BPAs:

(1) If there is a wide variety of items

in a broad class of goods (e.g., hardware)

that are generally purchased but the

exact items, quantities, and delivery

requirements are not known in advance

and may vary considerably.

(2) If there is a need to provide

commercial sources of supply for one or

more offices or projects in a given area

that do not have or need authority to

purchase otherwise.

(3) In any other case in which the

writing of numerous purchase orders

can be avoided through the use of this

procedure.

(b) A BPA should be established

without a purchase requisition.

(c) A BPA shall not cite accounting

and appropriation data (but see

13.204(e)(4)).

(d) BPAs should be made with firms

from which numerous individual

purchases will likely be made in a given

period. For example, if past experience

has shown that certain firms are

dependable and consistently lower in

price than other firms dealing in the

same commodities, and if numerous

purchases at or below the simplified

acquisition threshold are usually made

from such suppliers, it would be

advantageous to establish BPAs with

those firms.

(e) To the extent practical, BPAs for

items of the same type should be placed

concurrently with more than one

supplier. All competitive sources

should be given an equal opportunity to

furnish supplies or services under

BPAs.

(f) BPAs may also be established with

Federal Supply Schedule contractors

and GSA Nonmandatory ADP Schedule

contractors (see Part 39), if not

inconsistent with the terms of the

applicable schedule contract.

(g) If it is determined that BPAs

would be advantageous, suppliers

should be contacted to make the

necessary arrangements for securing

maximum discounts, documenting the

individual purchase transactions,

periodic billing, and other necessary

details.

(h) A BPA may be limited to

furnishing individual items or

commodity groups or classes, or it may

be unlimited for all items or services

that the source of supply is in a position

to furnish.

(i) BPAs shall be prepared and issued

on any agency-authorized purchase

order form.

(j) BPAs shall contain the following

terms and conditions:

(1) Description of agreement. A

statement that the supplier shall furnish

supplies or services, described in

general terms, if and when requested by

the contracting officer (or the authorized

representative of the contracting officer)

during a specified period and within a

stipulated aggregate amount, if any.

(2) Extent of obligation. A statement

that the Government is obligated only to

the extent of authorized purchases

actually made under the BPA.

(3) Purchase limitation. A statement

that specifies the dollar limitation for

each individual purchase under the

BPA (see 13.204(b)).

(4) Notice of individuals authorized to

purchase under the BPA and dollar

limitations by title of position or name.

A statement that a list of individuals

authorized to purchase under the BPA,

identified either by title of position or

by name of individual, organizational

component, and the dollar limitation

per purchase for each position title or

individual shall be furnished to the

supplier by the contracting officer.

(5) Delivery tickets. A requirement

that all shipments under the agreement,

except subscriptions and other charges

for newspapers, magazines, or other

periodicals, shall be accompanied by

delivery tickets or sales slips which

shall contain the following minimum

information:

(i) Name of supplier.

(ii) BPA number.

(iii) Date of purchase.

(iv) Purchase number.

(v) Itemized list of supplies or

services furnished.

(vi) Quantity, unit price, and

extension of each item, less applicable

discounts (unit prices and extensions

need not be shown when incompatible

with the use of automated systems;

provided, that the invoice is itemized to

show this information).

(vii) Date of delivery or shipment.

(6) Invoices. One of the following

statements (except that the statement in

paragraph (j)(6)(iii) of this section

should not be used if the accumulation

of the individual invoices by the

Government materially increases the

administrative costs of this purchase

method):

(i) A summary invoice shall be

submitted at least monthly or upon

expiration of this BPA, whichever

occurs first, for all deliveries made

during a billing period, identifying the

delivery tickets covered therein, stating

their total dollar value, and supported

by receipt copies of the delivery tickets.

(ii) An itemized invoice shall be

submitted at least monthly or upon

expiration of this BPA, whichever

occurs first, for all deliveries made

during a billing period and for which

payment has not been received. These

invoices need not be supported by

copies of delivery tickets.

(iii) When billing procedures provide

for an individual invoice for each

delivery, these invoices shall be

accumulated; provided, that—

(A) A consolidated payment will be

made for each specified period; and

(B) The period of any discounts will

commence on the final date of the

billing period or on the date of receipt

of invoices for all deliveries accepted

during the billing period, whichever is

later.

(iv) An invoice for subscriptions or

other charges for newspapers,

magazines, or other periodicals shall

show the starting and ending dates and

shall state either that ordered

subscriptions have been placed in effect

or will be placed in effect upon receipt

of payment.

(k) BPAs in which the fast payment

procedure is used shall include the

requirements stated under 13.303(b).

13.203–2 Clauses.

(a) The contracting officer shall insert

in each BPA the clauses prescribed

elsewhere in the FAR that are required

for or applicable to the particular BPA.

(b) Unless a clause prescription

specifies otherwise, (e.g., see

22.305(a)(1), 22.605(a)(5), or 22.1006), if

the prescription includes a dollar

threshold, the amount to be compared to

that threshold is that of any particular

order under the BPA.

13.204 Purchases under Blanket Purchase

Agreements.

(a) The use of a BPA does not

authorize purchases that are not

otherwise authorized by law or

regulation. For example, the blanket

purchase agreement, being a method of
12376 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

simplifying the making of individual

purchases, shall not be used to avoid the

simplified acquisition threshold.

(b) Unless otherwise specified in

agency regulations, individual

purchases under BPAs, except those

BPAs established in accordance with

13.203–1(f), shall not exceed (i) $50,000,

or (ii) $100,000 when the procuring

activity has certified interim FACNET

(see 13.103(b)).

(c) The existence of a BPA does not

justify purchasing from only one source

or avoiding small business set-asides.

The requirements of 13.105 and 13.106

also apply to each order under a BPA.

(d) If there is an insufficient number

of BPAs to ensure maximum practicable

competition for a particular purchase,

the contracting officer shall—

(1) Solicit quotations from other

sources and make the purchase as

appropriate; and

(2) Establish additional BPAs to

facilitate future purchases if (i) recurring

requirements for the same or similar

items or services seem likely, (ii)

qualified sources are willing to accept

BPAs, and (iii) it is otherwise practical

to do so.

(e) Documentation of purchases under

BPAs shall be limited to essential

information and forms, as follows:

(1) Purchases under BPAs generally

should be made electronically, or orally

when it is not considered economical or

practical to use electronic methods.

(2) A paper purchase document may

be issued if written communications are

necessary to ensure that the vendor and

the purchaser agree concerning the

transaction.

(3) If a paper document is not issued,

the essential elements (e.g., date,

vendor, items or services, price, delivery

date) shall be recorded on the purchase

requisition, in an informal

memorandum, or on a form developed

locally for the purpose.

(4) Documentation of individual

purchases under BPAs shall also cite the

pertinent purchase requisitions and the

accounting and appropriation data.

(5) When delivery is made or the

services are performed, the vendor’s

sales document, delivery document, or

invoice may (if it reflects the essential

elements) be used for the purpose of

recording receipt and acceptance of the

items or services. However, if the

purchase is assigned to another activity

for administration, receipt and

acceptance of supplies or services shall

be documented by signature and date on

the agency specified form by the

authorized Government representative

after verification and notation of any

exceptions.

13.205 Review procedures.

(a) The contracting officer placing

orders under a BPA, or the designated

representative of the contracting officer,

shall review a sufficient random sample

of the BPA files at least annually to

ensure that authorized procedures are

being followed.

(b) The contracting officer that

entered into the BPA shall—

(1) Ensure that each BPA is reviewed

at least annually and, if necessary,

updated at that time; and

(2) Maintain awareness of changes in

market conditions, sources of supply,

and other pertinent factors that may

warrant making new arrangements with

different suppliers or modifying existing

arrangements.

(c) If an office other than the

purchasing office that established a BPA

is authorized to make purchases under

that BPA, the agency that has

jurisdiction over the office authorized to

make the purchases shall ensure that the

procedures in paragraph (a) of this

section are being followed.

13.206 Completion of Blanket Purchase

Agreements.

An individual BPA is considered

complete when the purchases under it

equal its total dollar limitation, if any,

or when its stated time period expires.

41. Subpart 13.3 is revised to read as

follows:

Subpart 13.3—Fast Payment Procedure

Sec.

13.301 General.

13.302 Conditions for use.

13.303 Preparation and execution of orders.

13.304 Responsibility for collection of

debts.

13.305 Contract clause.

13.301 General.

The fast payment procedure allows

payment under limited conditions to a

contractor prior to the Government’s

verification that supplies have been

received and accepted. The procedure

provides for payment for supplies based

on the contractor’s submission of an

invoice that constitutes a representation

that—

(a) The supplies have been delivered

to a post office, common carrier, or

point of first receipt by the Government;

and

(b) The contractor agrees to replace,

repair, or correct supplies not received

at destination, damaged in transit, or not

conforming to purchase agreements.

13.302 Conditions for use.

If the conditions in paragraphs (a)

through (f) of this section are present,

the fast payment procedure may be

used, provided that use of the procedure

is consistent with the other conditions

of the purchase. The conditions for use

of the fast payment procedure are as

follows:

(a) Individual orders do not exceed

$25,000 except that executive agencies

may permit higher dollar limitations for

specified activities or items on a caseby-case basis.

(b) Deliveries of supplies are to occur

at locations where there is both a

geographical separation and a lack of

adequate communications facilities

between Government receiving and

disbursing activities that will make it

impractical to make timely payment

based on evidence of Government

acceptance. Use of the fast payment

procedure would not be indicated, for

example, for small purchases by an

activity if material being purchased is

destined for use at that activity and

contract administration will be

performed by the purchasing office at

that activity.

(c) Title to the supplies will vest in

the Government (1) upon delivery to a

post office or common carrier for

mailing or shipment to destination, or

(2) upon receipt by the Government if

the shipment is by means other than

Postal Service or common carrier.

(d) The supplier agrees to replace,

repair, or correct supplies not received

at destination, damaged in transit, or not

conforming to purchase requirements.

(e) The purchasing instrument is a

firm-fixed price contract, a purchase

order, or a delivery order for supplies.

(f) A system is in place to ensure (1)

documenting evidence of contractor

performance under fast payment

acquisitions, (2) timely feedback to the

contracting officer in case of contractor

deficiencies, and (3) identification of

suppliers who have a current history of

abusing the fast payment procedure.

(Also see Subpart 9.1.)

13.303 Preparation and execution of

orders.

(a) Except when orders are placed via

FACNET, orders incorporating the fast

payment procedure should be issued on

Optional Form 347, Order for Supplies

or Services, or other agency authorized

purchase order form (but see 13.204(e)

for purchases under BPAs). Orders may

be either priced or unpriced.

(b) Contracts, purchase orders, or

BPAs using the fast payment procedure

shall include the following:

(1) A requirement that the supplies be

shipped transportation or postage

prepaid.

(2) A requirement that invoices be

submitted directly to the finance or

other office designated in the order, or
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12377

in the case of unpriced purchase orders,

to the contracting officer (see 13.502(c)).

(3) The following statement on

consignee’s copy:

Consignee’s Notification to Purchasing

Activity of Nonreceipt, Damage, or

Nonconformance

The consignee shall notify the purchasing

office promptly after the specified date of

delivery of supplies not received, damaged in

transit, or not conforming to specifications of

the purchase order. Unless extenuating

circumstances exist, the notification should

be made not later than 60 days after the

specified date of delivery.

(4) A requirement that the contractor

mark outer shipping containers ‘‘FAST

PAY.’’

13.304 Responsibility for collection of

debts.

The contracting officer shall be

primarily responsible for collecting

debts resulting from failure of

contractors to properly replace, repair,

or correct supplies lost, damaged, or not

conforming to purchase requirements

(see 32.605(b) and 32.606).

13.305 Contract clause.

The contracting officer shall insert the

clause at 52.213–1, Fast Payment

Procedure, in solicitations and contracts

when the conditions in 13.302 are

applicable and it is intended that the

fast payment procedure be used in the

contract (in the case of BPAs, the

contracting officer may elect to insert

the clause either in the BPA or in orders

under the BPA).

42. Subpart 13.4 is revised to read as

follows:

Subpart 13.4—Imprest Fund

Sec.

13.401 General.

13.402 Agency responsibilities.

13.403 Conditions for use.

13.404 Procedures.

13.401 General.

This subpart prescribes policies and

procedures for using imprest funds to

purchase supplies or services. Related

policies and regulations concerning the

establishment of and accounting for

imprest funds, including the

responsibilities of designated cashiers

and alternates, are contained in Part IV

of the Treasury Financial Manual for

Guidance of Departments and Agencies,

Title 7 of the General Accounting Office

Policy and Procedures Manual for

Guidance of Federal Agencies, and the

agency implementing regulations.

Agencies shall also be guided by the

Manual of Procedures and Instructions

for Cashiers, issued by the Financial

Management Service, Department of the

Treasury.

13.402 Agency responsibilities.

Each agency using imprest funds

shall—

(a) Periodically review and determine

whether there is continuing need for

each fund established, and that amounts

of those funds are not in excess of actual

needs;

(b) Take prompt action to have

imprest funds adjusted to a level

commensurate with demonstrated needs

whenever circumstances warrant such

action; and

(c) Develop and issue appropriate

implementing regulations. These

regulations shall include (but are not

limited to) procedures covering—

(1) Designation of personnel

authorized to make purchases using

imprest funds; and

(2) Documentation of purchases using

imprest funds, including documentation

of (i) receipt and acceptance of supplies

and services by the Government, (ii)

receipt of cash payments by the

suppliers, and (iii) cash advances and

reimbursements.

13.403 Conditions for use.

Imprest funds may be used for

purchases when—

(a) the transaction does not exceed

$500 or such other limits as have been

approved by the agency head;

(b) the use of imprest funds is

considered to be advantageous to the

Government; and

(c) the use of imprest funds for the

transaction otherwise complies with any

additional conditions established by

agencies and with the policies and

regulations referenced in 13.402.

13.404 Procedures.

(a) Each purchase using imprest funds

shall be based upon an authorized

purchase requisition.

(b) Normally, orders to suppliers

should be placed orally and without

soliciting competition if prices are

considered reasonable.

(c) Purchases shall be distributed

equitably among qualified suppliers (see

13.105).

(d) Prompt payment discounts shall

be solicited.

(e) Any agency-authorized purchase

order form or Standard Form 1165,

Receipt for Cash-Subvoucher, may be

used if a written order is considered

necessary; e.g., if required by the

supplier for discount, tax exemption, or

other reasons. If a purchase order is

used for this purpose, it shall be

endorsed ‘‘Payment to be made from

Imprest Fund.’’

(f) The individual authorized to make

purchases using imprest funds shall—

(1) Furnish to the imprest fund

cashier a copy of the purchase

requisition annotated to reflect (i) that

an imprest fund purchase has been

made, (ii) the unit prices and

extensions, (iii) the supplier’s name and

address, and (iv) the date of anticipated

delivery; and

(2) Require the supplier to include

with delivery of the supplies an invoice,

packing slip, or other sales instrument

giving (i) the supplier’s name and

address, (ii) list and quantity of items,

(iii) unit prices and extensions, and (iv)

cash discount, if any.

43. Subpart 13.5 is revised to read as

follows:

Subpart 13.5—Purchase Orders

Sec.

13.501 General.

13.502 Unpriced purchase orders.

13.503 Obtaining contractor acceptance and

modifying purchase orders.

13.504 Termination or cancellation of

purchase orders.

13.505 Purchase order and related forms.

13.505–1 Optional Form (OF) 347, Order for

Supplies or Services, and Optional Form

348, Order for Supplies or Services

Schedule-Continuation.

13.505–2 [Reserved]

13.505–3 Standard Form 44, Purchase

Order-Invoice-Voucher.

13.506 Unsigned electronic purchase

orders.

13.507 Provisions and clauses.

13.508 Use of options in acquisitions using

simplified acquisition procedures.

13.501 General.

(a) Except as provided under the

unpriced purchase order method (see

13.502), purchase orders shall be issued

on a fixed-price basis unless otherwise

authorized by agency procedures.

(b) Purchase orders shall include any

trade and prompt payment discounts

that are offered, consistent with the

applicable principles in 14.407–3.

(c) Purchase orders shall specify the

quantity of supplies or services ordered.

(d) Inspections under simplified

acquisition procedures shall be as

prescribed in Part 46. Orders generally

shall provide that inspection and

acceptance will be at destination and

source inspection should be specified

only if required by Part 46. If inspection

and acceptance are to be performed at

destination, advance copies of the

purchase order shall be furnished to

consignee(s) for material receipt

purposes. Receiving reports shall be

accomplished immediately upon receipt

and acceptance of material.

(e) F.o.b. destination shall be

specified for supplies to be delivered

within the United States, except Alaska

and Hawaii, unless there are valid

reasons to the contrary.

(f) Each purchase order shall contain

a determinable date by which delivery
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of supplies or performance of services is

required.

(g) The contracting officer’s signature

on purchase orders shall be in

accordance with 4.101. Facsimile

signature may be used in the production

of purchase orders by automated

methods.

(h) Distribution of copies of purchase

orders and related forms shall be limited

to those copies required for essential

administration and transmission of

contractual information.

13.502 Unpriced purchase orders.

(a) An unpriced purchase order is an

order for supplies or services, the price

of which is not established at the time

of issuance of the order.

(b) An unpriced purchase order may

be used only when—

(1) It is anticipated that the

transaction will not exceed

(i) $50,000, or (ii) $100,000 when the

contracting activity of an agency has

certified interim or full FACNET (see

13.103(b)).

(2) It is impractical to obtain pricing

in advance of issuance of the purchase

order; and

(3) The purchase is for—

(i) Repairs to equipment requiring

disassembly to determine the nature and

extent of repairs;

(ii) Material available from only one

source and for which cost cannot be

readily established; or

(iii) Supplies or services for which

prices are known to be competitive but

exact prices are not known (e.g.,

miscellaneous repair parts, maintenance

agreements).

(c) Unpriced purchase orders may be

issued by using written purchase orders

or electronically (see 13.506). A realistic

monetary limitation, either for each line

item or for the total order, shall be

placed on each unpriced purchase

order. The monetary limitation shall be

an obligation subject to adjustment

when the firm price is established. The

contracting office shall follow-up each

order to ensure timely pricing. The

contracting officer or the contracting

officer’s designated representative shall

review the invoice price and, if

reasonable (see 13.106–2(a)), process the

invoice for payment.

13.503 Obtaining contractor acceptance

and modifying purchase orders.

(a) When it is desired to consummate

a binding contract between the parties

before the contractor undertakes

performance, the contracting officer

shall require written acceptance of the

purchase order by the contractor.

(b) A purchase order may be modified

by use of

(1) Standard Form 30, Amendment of

Solicitation/Modification of Contract;

(2) An agency-designed form or an

agency-approved automated format; or

(3) A purchase order form, if not

prohibited by agency regulations.

(c) Each purchase order modification

shall identify the order it modifies and

shall contain an appropriate

modification number.

(d) Contracting officers need not

obtain a contractor’s written acceptance

of a purchase order modification, unless

the written acceptance is—

(1) Determined by the contracting

officer to be necessary to ensure the

contractor’s compliance with the

purchase order as revised; or

(2) Required by agency regulations.

13.504 Termination or cancellation of

purchase orders.

(a) If a purchase order that has been

accepted in writing by the contractor is

to be terminated, the contracting officer

shall process the termination action as

prescribed by Part 49.

(b) If a purchase order that has not

been accepted in writing by the

contractor is to be canceled, the

contracting officer shall notify the

contractor in writing that the purchase

order has been canceled, request the

contractor’s written acceptance of the

cancellation, and proceed as follows:

(1) If the contractor accepts the

cancellation and does not claim that

costs were incurred as a result of

beginning performance under the

purchase order, no further action is

required; i.e., the purchase order shall

be considered canceled.

(2) If the contractor does not accept

the cancellation or claims that costs

were incurred as a result of beginning

performance under the purchase order,

the contracting officer shall process the

termination action as prescribed by Part

49.

13.505 Purchase order and related forms.

13.505–1 Optional Form (OF) 347, Order

for Supplies or Services, and Optional Form

348, Order for Supplies or Services

Schedule-Continuation.

(a) Optional Form 347 (illustrated in

53.302–347) and Optional Form 348

(illustrated in 53.302–348) are

multipurpose forms designed for the

following:

(1) Negotiated purchases of supplies

or services.

(2) Delivery orders.

(3) Inspection and receiving reports.

(4) Invoices.

(b) Agencies may use order forms

other than Optional Form 347 and 348

and may print on those forms the

clauses they consider to be generally

suitable for their purchases using

simplified acquisition procedures. The

clauses may include agency clauses, if

they do not conflict with clauses

prescribed by the FAR and are

designated as agency clauses.

13.505–2 [Reserved]

13.505–3 Standard Form 44, Purchase

Order-Invoice-Voucher.

(a) Standard Form 44, Purchase

Order-Invoice-Voucher (illustrated in

53.301–44) is a pocket-size purchase

order form designed primarily for onthe-spot, over-the-counter purchases of

supplies and nonpersonal services

while away from the purchasing office

or at isolated activities. It is a

multipurpose form that can be used as

a purchase order, receiving report,

invoice, and public voucher.

(b) Standard Form 44 may be used if

all of the following conditions are

satisfied:

(1) The amount of the purchase is at

or below the micro-purchase threshold,

except for purchases made under

unusual and compelling urgency or in

support of a military contingency

operation. Agencies may establish

higher dollar limitations for specific

activities or items.

(2) The supplies or services are

immediately available.

(3) One delivery and one payment

will be made.

(4) Its use is determined to be more

economical and efficient than use of

other simplified acquisition methods.

(c) General procedural instructions

governing the use of Standard Form 44

are printed on the form and on the

inside front cover of each book of forms.

(d) Since there is, for all practical

purposes, simultaneous placing of

purchase orders on Standard Form 44

and delivery of the items ordered,

clauses are not required for purchases

using this form.

(e) Agencies shall provide adequate

safeguards regarding the control of

forms and accounting for purchases.

13.506 Unsigned electronic purchase

orders.

(a) An unsigned electronic purchase

order (EPO) may be issued when the

following conditions are present—

(1) Its use is more advantageous to the

Government than any other simplified

acquisition method;

(2) It is acceptable to the supplier;

(3) It is approved by the contracting

officer;

(4) It does not require written

acceptance by the supplier; and

(5) The purchasing office retains all

contract administration functions.

(b) When an unsigned EPO is used—
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12379

(1) Appropriate clauses shall be

incorporated by reference;

(2) Administrative information that is

not needed by the supplier shall be

placed only on copies intended for

internal distribution;

(3) The same distribution shall be

made of the unsigned EPO as is made

of signed purchase orders; and

(4) No purchase order form is

required.

(c) An unsigned EPO may be unpriced

if it meets the conditions in 13.502.

13.507 Provisions and clauses.

(a) Each purchase order (and each

purchase order modification (see

13.503)) shall incorporate all clauses

required for or applicable to the

particular acquisition.

(b) The contracting officer shall insert

the clause at 52.213–2, Invoices, in

purchase orders that authorize advance

payments (see 31 U.S.C. 3324(d)(2)) for

subscriptions or other charges for

newspapers, magazines, periodicals, or

other publications (i.e., any publication

printed, microfilmed, photocopied, or

magnetically or otherwise recorded for

auditory or visual usage).

(c) The contracting officer shall insert

the clause at 52.213–3, Notice to

Supplier, in unpriced purchase orders.

(d) Pursuant to Pub.L. 103–355, the

following provisions and clauses are

inapplicable to contracts and

subcontracts at or below the simplified

acquisition threshold:

(1) 28.102–4, Miller Act solicitation

requirements. However, Part 28 sets

forth alternatives to payment bonds as

payment protections for suppliers of

labor and materials for contracts

exceeding $25,000, but not exceeding

$100,000.

(2) 52.203–1, Officials Not to Benefit

(3) 52.203–4, Contingent Fee Representation

and Agreement

(4) 52.203–5, Covenant Against Contingent

Fees

(5) 52.203–6, Restrictions on Subcontractor

Sales to the Government

(6) 52.203–7, Anti-Kickback Procedures

(7) 52.215–1, Examination of Records by

Comptroller General

(8) 52.222–4, Contract Work Hours and

Safety Standards Act—Overtime

Compensation

(9) 52.223–5, Certification Regarding a DrugFree Workplace

(10) 52.223–6, Drug-Free Workplace

13.508 Use of options in acquisitions

using simplified acquisition procedures.

Options may be included in

acquisitions using simplified

acquisition procedures provided that

the requirements of subpart 17.2 are met

and that the aggregate value of the

acquisition and all options does not

exceed the dollar threshold for use of

simplified acquisition procedures under

this part.

PART 15—CONTRACTING BY

NEGOTIATION

44. Section 15.106–1 is amended by

revising paragraph (b)(1) to read as

follows:

15.106–1 Examination of Records clause.

* * * * *

(b) * * *

(1) The contract amount is at or below

the simplified acquisition threshold;

* * * * *

45. Section 15.106–2 is amended by

revising the first sentence in paragraph

(b) to read as follows:

15.106–2 Audit-Negotiation clause.

* * * * *

(b) The contracting officer shall insert

the clause at 52.215–2, AuditNegotiation, in solicitations and

contracts when contracting by

negotiation, unless the acquisition is

made under simplified acquisition

procedures. * * *

46. Section 15.401 is amended by

revising paragraph (a) to read as follows:

15.401 Applicability.

* * * * *

(a) Acquisitions made under

simplified acquisition procedures (see

Part 13.); and

* * * * *

47. Section 15.602 is amended by

revising paragraph (b) to read as follows:

15.602 Applicability.

* * * * *

(b) This subpart does not apply to

acquisitions made under simplified

acquisition procedures (see Part 13.).

48. Section 15.804–2 is amended by

revising paragraphs (a)(4) and (5) to read

as follows:

15.804–2 Requiring certified cost or

pricing data.

(a) * * *

* * * * *

(4) The contracting officer shall not

require certified cost or pricing data

when awarding a contract below the

simplified acquisition threshold in Part

13.

(5) When certified cost or pricing data

are not required, the contracting officer

may request partial or limited data to

determine a reasonable price.

* * * * *

49. Section 15.812–2 is amended by

revising paragraph (a)(1) to read as

follows:

15.812–2 Contract clause.

(a) * * *

(1) Acquisitions at or below the

simplified acquisition threshold;

* * * * *

50. Section 15.1001 is amended by

revising the first sentence of paragraph

(b)(1) and paragraphs (c)(1) introductory

text and (3) amended to read as follows:

15.1002 Notification to unsuccessful

offerors.

* * * * *

(b) Preaward notices. (1) When the

proposal evaluation period for a

solicitation not using simplified

acquisition procedures in Part 13 is

expected to exceed 30 days, or when a

limited number of offerors have been

selected as being within the competitive

range (see 15.609), the contracting

officer, upon determining that a

proposal is unacceptable, shall

promptly notify the offeror. * * *

* * * * *

(c) Postaward notices. (1) After award

of contracts resulting from solicitations

not using simplified acquisition

procedures, the contracting officer shall

notify unsuccessful offerors in writing

or electronically, unless preaward

notice was given under paragraph (b) of

this section. The notice shall include—

* * * * *

(3) Upon request, the contracting

officer shall furnish the information

described in 15.1002(c)(1) (i) through (v)

to unsuccessful offerors in solicitations

using simplified acquisition procedures

in Part 13.

PART 16—TYPES OF CONTRACTS

51. Section 16.000 is amended by

revising the first sentence to read as

follows:

16.000 Scope of part.

This part describes types of contracts

that may be used in acquisitions other

than those made under simplified

acquisition procedures in Part 13,

unless otherwise authorized by agency

procedures. * * *

52. Section 16.103 is amended by

revising paragraph (d)(1) to read as

follows:

16.103 Negotiating contract type.

* * * * *

(d) * * *

(1) acquisitions made under

simplified acquisition procedures in

Part 13, unless otherwise required under

agency procedures,

* * * * *

53. Section 16.105 is revised to read

as follows:

16.105 Solicitation provision.

The contracting officer shall complete

and insert the provision at 52.216–1,
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Type of Contract, in a solicitation unless

it is for:

(a) A fixed-price acquisition made

under simplified acquisition procedures

(see Part 13) or

(b) Information or planning purposes.

PART 22—APPLICATION OF LABOR

LAWS TO GOVERNMENT

ACQUISITIONS

54. Section 22.202 is amended in the

introductory text by adding the phrase

‘‘except for purchases made at or below

the micro-purchase threshold,’’ after

‘‘contracts’’.

22.202 Contract clause.

55. Section 22.305 is amended by

revising the first sentence of the

introductory text and paragraph (a),

removing paragraph (b) and

redesignating paragraphs (c) through (h)

as (b) through (g) to read as follows:

22.305 Contract clause.

The contracting officer shall insert the

clause at 52.222–4, Contract Work

Hours and Safety Standards Act—

Overtime Compensation, in solicitations

and contracts (including, for this

purpose, basic ordering agreements)

when the contract may require or

involve the employment of laborers or

mechanics. * * *

(a) Contracts at or below the

simplified acquisition threshold.

* * * * *

22.1006 Contract clauses.

56. Section 22.1006 is amended by

revising the heading to read as set forth

above and by removing from the first

two sentences of paragraphs (c)(1) and

(c)(2) the phrase ‘‘small purchase

limitation(s)’’ and inserting ‘‘simplified

acquisition threshold(s)’’ in their places.

PART 23—ENVIRONMENT

CONSERVATION, OCCUPATIONAL

SAFETY, AND DRUG-FREE

WORKPLACE

57. Section 23.101 is amended by

revising the first sentence to read as

follows:

23.101 Applicability.

This subpart does not apply to

contracts below the simplified

acquisition threshold or to the use of

facilities outside the United States.

* * *

58. Section 23.501 is amended by

revising paragraph (a) to read as follows:

23.501 Applicability.

* * * * *

(a) Contracts at or below the

simplified acquisition threshold;

however, the requirements of this

subpart shall apply to contracts of any

value if the contract is awarded to an

individual;

* * * * *

59. Section 23.504 is amended by

revising the introductory text of

paragraph (a) to read as follows:

23.504 Policy.

(a) No offeror other than an individual

shall be considered a responsible source

(see 9.104–1) for a contract that exceeds

the simplified acquisition threshold,

unless it has certified, pursuant to

52.223–5, Certification Regarding a

Drug-Free Workplace by—

* * * * *

60. Section 23.505 is amended by

revising paragraph (a)(2) an adding

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

23.505 Solicitation provision and contract

clause.

* * * * *

(a) * * *

(2) Expected to exceed the simplified

acquisition threshold if the contract is

expected to be awarded to other than an

individual; or

* * * * *

(c) * * *

(4) The resultant contract is expected

to be at or below the simplified

acquisition threshold.

PART 25—FOREIGN ACQUISITION

61. Section 25.302 is amended by

revising paragraph (b)(1) to read as

follows:

25.302 Policy.

* * * * *

(b) * * *

(1) The estimated cost of the product

or service is at or below the simplified

acquisition threshold in Part 13.

* * * * *

62. Section 25.703 is amended by

revising the third sentence to read as

follows:

25.703 Exceptions.

* * * The approval level for this

exception is the contracting officer for

acquisitions at or below the simplified

acquisition threshold unless otherwise

provided by agency procedures. In the

case of contracts in excess of the

simplified acquisition threshold, the

approval level is the agency head. * * *

PART 27—PATENTS, DATA, AND

COPYRIGHTS

63. Section 27.201–2 is amended by

revising paragraph (a) to read as follows:

27.201–2 Clauses on authorization and

consent.

(a) The contracting officer shall insert

the clause at 52–227- 1, Authorization

and Consent, in solicitations and

contracts (including those for

construction; architect-engineer

services; dismantling, demolition, or

removal of improvements; and

noncommon carrier communication

services), except when using simplified

acquisition procedures or both complete

performance and delivery are outside

the United States, its possessions, and

Puerto Rico. Although the clause is not

required when simplified acquisition

procedures are used, it may be used

with them.

* * * * *

64. Section 27.202–2 is revised to read

as follows:

27.202–2 Clause on notice and assistance.

The contracting officer shall insert the

clause at 52.227–2, Notice and

Assistance Regarding Patent and

Copyright Infringement, in supply,

service, or research and development

solicitations and contracts (including

construction and architech-engineer

contracts) which anticipate a contract

value above the simplified acquisition

threshold, except when complete

performance and delivery are outside

the United States, its possessions, and

Puerto Rico, unless the contracts

indicate that the supplies or other

deliverables are ultimately to be

shipped into one of those areas.

65. Section 27.203–1 is amended by

revising paragraph (b)(4) to read as

follows:

27.203–1 General.

* * * * *

(b) * * *

(4) When the contract is awarded

using simplified acquisition procedures.

* * * * *

PART 28—BONDS AND INSURANCE

66. Section 28.103–2 is amended by

revising the first sentence of paragraph

(a) to read as follows:

28.103–2 Performance bonds.

(a) Performance bonds may be

required for contracts exceeding the

simplified acquisition threshold when

necessary to protect the Government’s

interest. * * *

28.103–3 Payment bonds.

67. Section 28.103–3(a) is amended by

removing the word ‘‘A’’ at the beginning

of the paragraph and inserting the

phrase ‘‘For acquisitions in excess of the

simplified acquisition threshold a’’ in

its place.
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12381

68. Section 28.310 is amended by

revising paragraph (a) introductory text

to read as follows:

28.310 Contract clause for work on a

Government installation.

(a) The contracting officer shall insert

the clause at 52.228–5, Insurance—

Work on a Government Installation, in

solicitations and contracts when a fixedprice contract is contemplated, the

contract amount is expected to exceed

the simplified acquisition threshold in

Part 13, and the contract will require

work on a Government installation,

unless—

* * * * *

PART 29—TAXES

69. Section 29.401–3 is revised to read

as follows:

29.401–3 Competitive contracts.

The contracting officer shall insert the

clause at 52–229–3, Federal, State, and

Local Taxes, in solicitations and

contracts if the contract is to be

performed wholly or partly within the

United States, its possessions, or Puerto

Rico when a fixed-price contract is

contemplated, and the contract is

expected to exceed the simplified

acquisition threshold in 13.000, unless

the clause at 52.229–4, Federal, State,

and Local Taxes (Noncompetitive

Contract), is included in the contract.

29.401–4 [Amended]

70. Section 29.401–4 is amended by

removing the words ‘‘small purchase

limitation’’ after the words ‘‘exceeds

the’’ and inserting the words

‘‘simplified acquisition threshold.’’

* * * * *

PART 32—CONTRACT FINANCING

71. Section 32.617 is amended by

revising paragraph (a)(1) to read as

follows:

32.617 Contract clause.

(a) * * *

(1) Contracts at or below the

simplified acquisition threshold.

* * * * *

72. Section 32.901 is revised to read

as follows:

32.901 Applicability.

This subpart applies to all

Government contracts (including

contracts at or below the simplified

acquisition threshold as defined in

Subpart 13.1), except contracts with

payment penalties established by other

governmental authority (e.g., tariffs).

73. Section 32.908 is amended by

revising paragraph (c) to read as follows:

32.908 Contract clause.

* * * * *

(c) The contracting officer shall insert

the clause at 52.232–25, Prompt

Payment, in all other solicitations and

contracts (including contracts at or

below the simplified acquisition

threshold in Part 13), except as

indicated in 32.901.

* * * * *

PART 36—CONSTRUCTION AND

ARCHITECT-ENGINEER CONTRACTS

36.502, 36.503, 36.506, 36.508, 36.509,

36.510, 36.512, 36.513, 36.515, 36.521,

36.602–5, and 36.702 [Amended]

74a. Part 36 amended by removing the

phrase ‘‘exceed the small purchase

limitation’’ and inserting ‘‘exceed the

simplified acquisition threshold’’ in its

place in the following locations:

36.502 36.509 36.515

36.503 36.510 36.521

36.506 36.512 36.602–5

36.508 36.513(a) 36.702(b)(2)

36.511, 36.701, 36.702 [Amended]

74b. Part 36 amended by removing the

phrase ‘‘exceed the small purchase

limitations’’ and inserting ‘‘exceed the

simplified acquisition threshold’’ in the

following locations: 36.511, 36.701(b),

and 36.702(b)(2).

36.502, 36.503, 36.506, 36.508, 36.509,

36.510, 36.512, 36.513, 36.521, 36.701, and

36.702 [Amended]

74c. Part 36 is amended by removing

the phrase ‘‘within the small purchase

limitation’’ and inserting ‘‘at or below

the simplified acquisition threshold’’ in

its place at the following locations:

36.502, 36.503, 36.506, 36.508, 36.509,

36.510, 36.512, 36.513(a), 36.515,

36.521, 36.602–5, 36.701(c).

36.511, 36.701, and 36.702 [Amended]

74d. Part 36 is amended by removing

the phrase ‘‘within the small purchase

limitations’’ and inserting ‘‘at or below

the simplified acquisition threshold’’ in

its place at the following locations:

36.511, 36.701(b), 36.702–(b)(2).

PART 41—ACQUISITION OF UTILITY

SERVICES

75. In 41.201(b) the first sentence is

revised to read as follows:

41.201 Policy.

* * * * *

(b) Except for acquisitions at or below

the simplified acquisition threshold in

Part 13, agencies shall acquire utility

services by a bilateral written contract,

which must include the clauses

required by 41.501, regardless of

whether rates or terms and conditions of

service are fixed or adjusted by a

regulatory body. * * *

* * * * *

PART 42—CONTRACT

ADMINISTRATION

42.903 [Amended]

76. In 42.903 the phrase ‘‘small

purchase limitation’’ is removed and

‘‘simplified acquisition threshold’’ is

inserted in its place.

42.1104 [Amended]

77. In 42.1104(b), the phrase

‘‘Contracts of value less than the small

purchase’’ is removed and ‘‘Contracts at

or below the simplified acquisition

threshold’’ is inserted in its place.

PART 43—CONTRACT

MODIFICATIONS

43.205 [Amended]

78. In section 43.205(d)(2) and (e), the

phrase ‘‘applicable small purchase

limitation’’ is removed and ‘‘simplified

acquisition threshold’’ is inserted in its

place.

PART 44—SUBCONTRACTING

POLICIES AND PROCEDURES

44.201–2 and 44.204 [Amended]

79. In sections 44.201–2(b) and

44.204(e), the phrase ‘‘small purchase

limitation is removed and ‘‘simplified

acquisition threshold’’ is inserted in its

place.

PART 45—GOVERNMENT PROPERTY

80. Section 45.106 is amended by

revising paragraph (e) to read as follows:

45.106 Government property clauses.

* * * * *

(e) When the cost of the item to be

repaired does not exceed the simplified

acquisition threshold (but see

13.103(b)), purchase orders for property

repair need not include a Government

property clause.

* * * * *

PART 46—QUALITY ASSURANCE

46.202–1 [Amended]

81. In section 46.202–1(a), the phrase

‘‘under small purchases’’ is removed

and ‘‘at or below the simplified

acquisition threshold’’ is inserted in its

place.

46.301 [Amended]

82. In section 46.301 in the

introductory text the phrase ‘‘within the

small purchase limitation’’ is removed

and ‘‘at or below the simplified

acquisition threshold’’ is inserted in its

place.
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46.302 [Amended]

83. In the first sentence of section

46.302 the phrase ‘‘small purchase

limitation’’ is removed and ‘‘simplified

acquisition threshold’’ is inserted in its

place; and in the second sentence the

phrase ‘‘within the small purchase

limitation’’ is removed and ‘‘at or below

the simplified acquisition threshold’’ is

inserted in its place.

46.304 [Amended]

84. In section 46.304 the phrase

‘‘small purchase limitation’’ is removed

and ‘‘simplified acquisition threshold’’

is inserted in its place and the phrase

‘‘within the small purchase limitation’’

is removed and ‘‘at or below the

simplified acquisition threshold’’ is

inserted in its place.

46.307 [Amended]

85. In Section 46.307(a)(3), the phrase

‘‘small purchase limitation’’ is removed

and ‘‘simplified acquisition threshold’’

is inserted in its place; and in paragraph

(b) the phrase ‘‘within the small

purchase limitation’’ is removed and ‘‘at

or below the simplified acquisition

threshold’’ is inserted in its place.

46.312 [Amended]

86. In the first sentence of section

46.312 the phrase ‘‘small purchase

limitation’’ is removed and ‘‘simplified

acquisition threshold’’ is inserted in its

place; and in the second sentence the

phrase ‘‘within small purchase

limitation’’ is removed and ‘‘at or below

the simplified acquisition threshold’’ is

inserted in its place.

46.316 [Amended]

87. In Section 46.316, the phrase

‘‘small purchase limitation’’ is removed

and ‘‘simplified acquisition threshold’’

is inserted in its place; and in the

second sentence the phrase ‘‘within

small purchase limitation’’ is removed

and ‘‘at or below the simplified

acquisition threshold’’ is inserted in its

place.

46.404 Government contract quality

assurance for acquisitions at or below the

simplified acquisition threshold.

88. Section 46.404 is amended by

revising the heading; removing the

words ‘‘small purchases’’ in paragraphs

(a) and (b)(1) and inserting ‘‘contracts at

or below the simplified acquisition

threshold’’ in their place.

89. Section 46.805 is amended by

revising the heading of the introductory

text of paragraph (a) and revising

paragraph (b) to read as follows:

46.805 Contract clauses.

(a) Contracts that exceed the

simplified acquisition threshold in

13.000. * * *

* * * * *

(b) Acquisitions at or below the

simplified acquisition threshold in

13.000. The clauses prescribed by

paragraph (a) of this section are not

required for contracts at or below the

simplified acquisition threshold in

13.000. However in response to a

contractor’s specific request, the

contracting officer may insert the

clauses prescribed in paragraph (a)(1) or

(a)(4) of this section in a contract at or

below the simplified acquisition

threshold in 13.000 and obtain any price

reduction that is appropriate.

PART 47—TRANSPORTATION

90. Section 47.104–4(a)(2), is

amended by removing the phrase ‘‘small

purchases under’’ and inserting

‘‘contracts at or below the simplified

acquisition threshold in’’ in its place;

and revising paragraph (b) to read as

follows:

47.104–4 Contract clause.

* * * * *

(b) The contracting officer may insert

the clause at 52.247–1, Commercial Bill

of Lading Notations, in solicitations and

contracts made at or below the

simplified acquisition threshold in Part

13 when it is contemplated that the

delivery terms will be f.o.b. origin.

47.200 [Amended]

91. In 47.200(b)(4), remove the phrase

‘‘Small purchases under’’ and insert

‘‘Contracts at or below the simplified

acquisition threshold in’’ in its place.

47.205 [Amended]

92. In section 47.205, paragraph (b),

remove the phrase ‘‘small purchase

limitation’’ and insert ‘‘the threshold for

use of simplified acquisition procedures

in Part 13 ‘‘ in its place; and remove the

phrase ‘‘the small purchase procedures’’

and insert ‘‘simplified acquisition

procedures’’ in its place.

47.305–16 [Amended]

93. In the first sentence of 47.305–

16(b)(1) remove the phrase ‘‘awarded

under small purchase procedures of’’

and insert ‘‘at or below the simplified

acquisition threshold’’ in its place.

94. Section 47.405 is revised to read

as follows:

47.405 Contract clause.

The contracting officer shall insert the

clause at 52.247–63, Preference for U.S.-

Flag Air Carriers, in solicitations and

contracts whenever it is possible that

U.S. Government-financed international

air transportation of personnel (and

their personal effects) or property will

occur in the performance of the

contract. This clause does not apply to

contracts awarded using the simplified

acquisition procedures in Part 13.

95. Section 47.504 is amended by

revising paragraph (d) to read as

follows:

47.504 Exceptions.

* * * * *

(d) Contracts awarded using the

simplified acquisition procedures in

Part 13.

PART 49—TERMINATION OF

CONTRACTS

49.504 [Amended]

96. In section 49.504 at paragraphs

(a)(1), (b) and (c)(1) in the first sentence

remove the phrase ‘‘small purchase

limitation’’ and insert ‘‘simplified

acquisition threshold’’ in its place; and

in the second sentence remove the

phrase ‘‘not expected to exceed the

small purchase limitation’’ and insert

‘‘at or below the simplified acquisition

threshold;’’

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

52.203–6 [Amended]

97. In the clause at 52.203–6 the date

of the clause is revised to read (XXX

1995) and at the end of paragraph (c)

add the phrase ‘‘, which exceed

$100,000.’’

52.203–7 [Amended]

98. In the clause at 52.203–7 the date

of the clause is revised to read (XXX

1995) and at the end of paragraph (c)(5)

add the phrase ‘‘, which exceed

$100,000.’’

52.209–6 [Amended]

99. In the clause at 52.209–6 the date

of the clause is revised to read (XXX

1995) and in the second sentence of

paragraph (a) and in paragraph (b)

remove the phrase ‘‘small purchase

limitation’’ and insert ‘‘simplified

acquisition threshold.’’

100. Sections 52.213–2 and 52.213–3

are amended by revising the

introductory paragraphs to read as

follows:

52.213–2 Invoices.

As prescribed in 13.507(b), insert the

following clause:

* * * * *
Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules 12383

52.213–3 Notice to Supplier.

As prescribed in 13.507(c), insert the

following clause in unpriced purchase

orders:

* * * * *

52.215–1 [Amended]

101. In the clause at 52.215–1 the date

of the clause is revised to read (XXX

1995) and in the first sentence of

paragraph (c) after the first appearance

of ‘‘subcontracts’’ add the phrase ‘‘,

exceeding $100,000,’’.

52.215–2 [Amended]

102. In the clause in section 52.215–

2, the date is revised to read (XXX 1995)

and in paragraph (f) remove the phrase

‘‘are over the small purchase limitation’’

and insert ‘‘exceed the simplified

acquisition threshold’’ in its place.

103. Section 52.216–1 is amended by

revising the introductory paragraph to

read as follows:

52.216–1 Type of contract.

As prescribed in 16.105, complete and

insert the following provision:

* * * * *

52.222–4 [Amended]

104. In the clause at 52.222–4 the date

is revised to read (XXX 1995) and in the

first sentence of paragraph (e) following

‘‘subcontracts’’ the first time it appears

add the phrase ‘‘, exceeding $100,000,’’

105. Section 52.223–5 is amended in

the clause by revising the date and

revising paragraph (b) introductory text

to read as follows:

52.223–5 Certification regarding a drugfree workplace.

* * * * *

Certification Regarding a Drug-Free

Workplace (XXX 1995)

* * * * *

(b) By submission of its offer, the

offeror (other than an individual

responding to a solicitation that is

expected to exceed the simplified

acquisition threshold), certifies and

agrees, that with respect to all

employees of the offeror to be employed

under a contract resulting from this

solicitation, it will—no later than 30

calendar days after contract award

(unless a longer period is agreed to in

writing), for contracts of 30 calendar

days or more performance duration; or

as soon as possible for contracts of less

than 30 calendar days performance

duration, but in any case, by a date prior

to when performance is expected to be

completed—

* * * * *

52.227–1 [Amended]

106. In the clause at section 52.227–

1, revise the clause date to read ‘‘(XXX

1995)’’ and paragraph (b) remove

‘‘$25,000’’ after the word exceed’’ and

insert ‘‘the simplified acquisition

threshold’’ in its place; and remove the

phrase ‘‘under or over $25,000’’ and

insert ‘‘including those at or below the

simplified acquisition threshold’’ in its

place.

52.227–3 [Amended]

107. In section 52.227–3, Alternate III,

revise the clause date to read ‘‘(XXX

1995)’’ and remove ‘‘$25,000’’ and insert

‘‘the simplified acquisition threshold’’

in its place

108. The introductory paragraphs in

sections 52.236–2, 52.236–3, 52.236–6,

52.236–8, 52.236–9, 52.236–10, 52.236–

11, 52.236–12, 52.236–15, 52.236–21,

and 52.243–5 are revised to read as

follows:

52.236–2 Differing site conditions.

As prescribed in 36.502, insert the

following clause:

* * * * *

52.236–3 Site investigation and conditions

Affecting the Work.

As prescribed in 36.503, insert the

following clause:

* * * * *

52.236–6 Superintendence by the

contractor.

As prescribed in 36.506, insert the

following clause:

* * * * *

52.236–8 Other contracts.

As prescribed in 36.508, insert the

following clause:

* * * * *

52.236–9 Protection of existing vegetation,

structures, equipment, utilities, and

improvements.

As prescribed in 36.509, insert the

following clause:

* * * * *

52.236–10 Operations and storage areas.

As prescribed in 36.510, insert the

following clause:

* * * * *

52.236–11 Use and possession prior to

completion.

As prescribed in 36.511, insert the

following clause:

* * * * *

52.236–12 Cleaning up.

As prescribed in 36.512, insert the

following clause:

* * * * *

52.236–15 Schedules for construction

contracts.

As prescribed in 36.515, insert the

following clause:

* * * * *

52.236–21 Specifications and drawings for

construction.

As prescribed in 36.521, insert the

following clause:

* * * * *

52.243–5 Changes and changed

conditions.

As prescribed in 43.205(e), insert the

following clause:

* * * * *

52.244–2 [Amended]

109. In section 52.244–2, Alternate I,

revise the parenthetical date to read

‘‘(XXX 1995)’’ and in paragraph (a)(2)

remove the phrase ‘‘small purchase

limitation’’ and insert ‘‘simplified

acquisition threshold’’ in its place.

110. Section 52.244–5 is amended by

revising the introductory text and

removing paragraphs (a) and (b) to read

as follows:

52.244–5 Competition in subcontracting.

As prescribed in 44.204(e), insert the

following clause:

* * * * *

111. The introductory paragraphs of

sections 52.246–1, 52.246–7, 52.246–12,

52.246–16, 52.246–23, 52.246–24, and

52.246–25 are revised to read as follows:

52.246–1 Contractor inspection

requirements.

As prescribed in 46.301, insert the

following clause:

* * * * *

52.246–7 Inspection of research and

development-fixed price.

As prescribed in 46.307(a), insert the

following clause:

* * * * *

52.246–12 Inspection of construction.

As prescribed in 46.312, insert the

following clause:

* * * * *

52.246–16 Responsibilities for suppliers.

As prescribed in 46.316, insert the

following clause:

* * * * *

52.246–23 Limitation of liability.

As prescribed in 46.805, insert the

following clause:

* * * * *
12384 Federal Register / Vol. 60, No. 43 / Monday, March 6, 1995 / Proposed Rules

52.246–24 Limitation of liability-high-value

items.

As prescribed in 46.805, insert the

following clause:

* * * * *

52.246–25 Limitation of liability-services.

As prescribed in 46.805, insert the

following clause:

* * * * *

112. Section 52.247–1 is amended by

adding the introductory paragraph and

removing paragraphs (a) and (b) to read

as follows:

52.247–1 Commercial bill of lading

notations.

As prescribed in 47.104–4, insert the

following clause:

* * * * *

52.247–64 [Amended]

113. In the clause at section 52.247–

64, the date is revised to read ‘‘(XXX

1995)’’; in paragraph (d) remove the

words ‘‘small purchases’’ and insert

‘‘contracts at or below the simplified

acquisition threshold’’ in their place;

and in paragraph (e)(1), remove the

words ‘‘Small purchases’’ and insert

‘‘Contracts at or below the simplified

acquisition threshold’’ in their place.

114. In sections 52.249–8, 52.249–9,

and 52.249–10 the introductory

paragraphs are revised to read as

follows:

52.249–8 Default (Fixed-price supply and

service).

As prescribed in 49.504(a)(1), insert

the following clause:

* * * * *

52.249–9 Default (Fixed-price research and

development).

As prescribed in 49.504(b), insert the

following clause:

* * * * *

52.249–10 Default (Fixed-price

construction).

As prescribed in 49.504(c)(1), insert

the following clause:

* * * * *

PART 53—FORMS

115. Section 53.213 is amended by

revising the heading, the introductory

paragraph, and paragraphs (a), (c), and

(e)(1) to read as follows:

53.213 Simplified acquisition procedures

(SF’s 18, 30, 44, 1165, OF’s 347, 348).

The following forms are prescribed as

stated below for use in simplified

acquisition procedures, orders under

existing contracts or agreements, and

orders from required sources of supplies

and services;

(a) SF 18 (Rev. 5/93), Request for

Quotations. SF 18 prescribed in 53.215–

1(a), shall be used in obtaining price,

cost, delivery, and related information

from suppliers as specified in 13.107(a).

* * * * *

(c) SF 44 (Rev. 10/83), Purchase Order

Invoice Voucher. SF 44 is prescribed for

use in simplified acquisition

procedures, as specified in 13.505–3.

* * * * *

(e) * * *

(1) To accomplish acquisitions under

simplified acquisition procedures, as

specified in 13.505–1(a)(2).

* * * * *

116. Section 53.215–1 is amended by

revising the introductory paragraph to

read as follows:

53.215–1 Solicitation and receipt of

proposals and quotations.

The following forms are prescribed, as

stated below, for use in contracting by

negotiation (except for construction,

architect-engineer services, or

acquisitions made using simplified

acquisition procedures):

* * * * *

[FR Doc. 95–5451 Filed 3–3–95; 8:45 am]

BILLING CODE 6820–34–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 2, 4, 5, 7, 8, 9, 12, 14, 15,

16, 32, 45, 52, and 53

[FAR Case 91–104]

Federal Acquisition Regulation;

Electronic Contracting

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Proposed rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council are

proposing to amend the Federal

Acquisition Regulation (FAR) to address

the use of electronic commerce/

electronic data interchange in

Government contracting. This regulatory

action was subject to Office of

Management and Budget review

pursuant to Executive Order No. 12866

dated September 30, 1993.

DATES: Comments should be submitted

to the FAR Secretariat at the address

shown below on or before May 5, 1995,

to be considered in the formulation of

a final rule.

ADDRESSES: Interested parties should

submit written comments to:

General Services Administration, FAR

Secretariat (VRS), 18th & F Streets,

NW, Room 4037, Washington, DC

20405. Please cite FAR case 91–104 in

all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT: Mr.

Edward Loeb at (202) 501–4547 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 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, because significant

changes to the rule published on

December 30, 1993, were deemed to be

necessary. The changes include:

—Revision of the definition of ‘‘in

writing’’ or ‘‘written’’ at 2.101 to

include electronically transmitted and

stored information.

—Revision of the definition of

‘‘signature’’ at 2.101 for clarity and to

include electronic symbols.

—Addition of a definition of ‘‘electronic

commerce’’ at 4.301.

—Amendment of section 5.101 to

permit the use of electronic

dissemination, available to the public

at the contracting office, to satisfy the

requirement for public display of

proposed contract actions.

—Amendment of section 5.102 to

permit contracting officers to furnish

solicitations directly to the electronic

address of a small business concern.

—Amendment of sections 12.103,

14.304–1, 52.212–1, 52.212–2,

52.214–7, 52.214–23, 52.214–32,

52.214–33, 52.215–10, and 52.215–36

to accommodate the use of electronic

systems which batch-process

communications overnight and,

therefore, require receipt of

information one day in advance to

ensure timely delivery to the

designated address.

—Revision of paragraph (a) of section

14.205–1 to eliminate the requirement