[Federal Register: August 22, 2001 (Volume 66, Number 163)]
[Proposed Rules]               
[Page 44287-44289]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 44287]]


Part VII

Department of Defense

General Services Administration

National Aeronautics and Space Administration


48 CFR Part 52

Federal Acquisition Regulation; Revisions to Provisions/Clauses to 
Accommodate Sealed Bidding and Simplified Procedures in Commercial Item 
Acquisitions; Proposed Rule

[[Page 44288]]





48 CFR Part 52

[FAR Case 2000-011]
RIN: 9000-AJ11

Federal Acquisition Regulation; Revisions to Provisions/Clauses 
to Accommodate Sealed Bidding and Simplified Procedures in Commercial 
Item Acquisitions

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 (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to update FAR provisions relating 
to Instructions to Offerors--Commercial Items and Offeror 
Representations and Certifications--Commercial Items, to accommodate 
sealed bidding and simplified acquisitions.

DATES: Interested parties should submit comments in writing on or 
before October 22, 2001 to be considered in the formulation of a final 

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVP), 1800 F Street, NW., Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.2000-
    Please submit comments only and cite FAR case 2000-011 in all 
correspondence related to this case.

Building, Washington, DC, 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAR case 2000-011.


A. Background

    Federal Acquisition Regulation, Part 12, Acquisition of Commercial 
Items, was developed to implement Title VIII of the Federal Acquisition 
Streamlining Act of 1994 (FASA) (Pub. L. 103-355). The regulations 
became effective on October 1, 1995. Several areas have been identified 
that need updating and clarification. This rule revises the provisions 
at 52.212-1 and 52.212-3 to accommodate the use of sealed bidding or 
requests for quotations for commercial items.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule merely revises the provision to add language that 
currently must be added by the contracting officer. It does not change 
existing policy. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. We invite comments from small businesses 
and other interested parties. The Councils will consider comments from 
small entities concerning the affected FAR Part 52 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C. 601, et seq. (FAR case 2000-011), in 

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 52

    Government procurement.

    Dated: August 17, 2001.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose that 48 CFR part 52 be 
amended as set forth below:


    1. The authority citation for 48 CFR part 52 continues to read as 

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Amend section 52.212-1 as follows:
    (a) Revise the date of the provision;
    (b) Redesignate paragraphs (a) through (j) as (b) through (k), 
    (c) Add a new paragraph (a);
    (d) Revise the newly designated paragraph (c);
    (e) In the newly designated paragraph (d), revise the heading; and
    (f) Revise the newly designated paragraph (h). The revised and 
added text reads as follows:

52.212-1  Instructions to Offerors--Commercial Items.

* * * * *
Instructions to Offerors--Commercial Items (Date)
    (a) Definition. As used in this provision, the terms ``offer'' and 
``offeror'' include ``quote'' and ``quoter'' respectively, except as 
used in paragraph (h) of this provision.
* * * * *
    (c) Submission of offers and modifications to offers. (1) Submit 
signed and dated offers to the office specified in this solicitation at 
or before the exact time specified in this solicitation. Offers may be 
submitted on the SF 1449, letterhead stationery, or as otherwise 
specified in the solicitation. As a minimum, offers shall include--
    (i) The solicitation number;
    (ii) The time specified in the solicitation for receipt of offers;
    (iii) The name, address, and telephone number of the offeror;
    (iv) A technical description of the items being offered in 
sufficient detail to evaluate compliance with the requirements in the 
solicitation. This may include product literature, or other documents, 
if necessary;
    (v) Terms of any express warranty;
    (vi) Price and any discount terms;
    (vii) ``Remit to'' address, if different from mailing address;
    (viii) A completed copy of the representations and certifications 
at Federal Acquisition Regulation (FAR) 52.212-3;
    (ix) Acknowledgement of solicitation amendments;
    (x) Past performance information, when included as an evaluation 
factor, to include recent and relevant contracts for the same or 
similar items and other references (including contract numbers, points 
of contact with telephone numbers and other relevant information); and
    (xi) If the offer is not submitted on the SF 1449, a statement 
specifying the extent of agreement with all terms, conditions, and 
provisions included in the solicitation. Proposals or quotes that fail 
to furnish required representations or information, or reject the terms 
and conditions of the solicitation, may be excluded from consideration. 
Bids that do not conform to the essential requirements of the 
invitation for bids will be rejected.

[[Page 44289]]

    (2) Address offers and modifications to offers, regardless of the 
media under which submitted, to the office specified in the 
solicitation. Offerors shall ensure that the outermost wrapper (or the 
transmittal documentation for electronic submissions) of the offer or 
modification is marked to show the time and date specified for receipt, 
the solicitation number, and the name and address of the offeror.
    (d) Offer expiration date. * * *
* * * * *
    (h) Contract award. Depending on the method of solicitation 
selected in Block 14 of the SF 1449, only one of the following three 
paragraphs applies:
    (1) Request for quotations. The Government will evaluate quotations 
on the basis specified in the solicitation. For the purposes of this 
paragraph, a quotation is not an offer and cannot be accepted by the 
Government to form a binding contract. Instead, the Government may 
include the quotation in an order to the supplier to buy certain 
supplies or services upon specified terms and conditions. The order is 
an offer by the Government. A contract is formed when the supplier 
accepts the offer. The Contracting Officer may require the supplier to 
indicate acceptance of an order by notification to the Government, 
preferably in writing, as defined at FAR 2.101. 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.
    (2) Invitation for bids. The Government will evaluate bids in 
response to this solicitation and will award a contract to the 
responsible bidder whose bid, conforming to the solicitation, will be 
most advantageous to the Government considering only price and the 
price-related factors specified elsewhere in the solicitation.
    (3) Request for proposals. The Government intends to evaluate 
offers and award a contract without discussions with offerors. 
Therefore, the offeror's initial offer should contain the offeror's 
best terms from a price and technical standpoint. However, the 
Government reserves the right to conduct discussions if later 
determined by the Contracting Officer to be necessary. The Government 
may reject any or all offers if such action is in the public interest; 
accept other than the lowest offer; and waive informalities and minor 
irregularities in offers received.
* * * * *
    3. In section 52.212-3, revise the date of the provision and the 
introductory text of paragraph (a) to read as follows:

52.212-3  Offeror Representations and Certifications--Commercial Items

* * * * *
Offeror Representations and Certifications--Commercial Items (Date)
    (a) Definitions. As used in this provision, the term ``offeror'' 
includes ``quoter''.
* * * * *
[FR Doc. 01-21191 Filed 8-21-01; 8:45 am]