[Federal Register: February 8, 2002 (Volume 67, Number 27)]
[Rules and Regulations]               
[Page 6113-6114]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]





48 CFR Parts 2, 4, 14, and 32

[FAC 2001-04; FAR Case 2000-404; 
Item I]
RIN 9000-AI81

Federal Acquisition Regulation; Definitions for Classified 

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Final rule.


SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed to amend the 
Federal Acquisition Regulation (FAR) to provide consistent definitions 
for classified acquisitions.

DATES: Effective Date: February 20, 2002.

Building, Washington, DC 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Ralph DeStefano, Procurement Analyst, at (202) 
501-1758. Please cite FAC 2001-04, FAR case 2000-404.


A. Background

    This rule amends the FAR to address perceived inconsistencies in 
definitions that are used for classified acquisitions. The rule moves 
the definitions of ``classified acquisition,'' ``classified contract,'' 
and ``classified information'' from FAR 4.401 to FAR 2.101, because the 
definitions apply to more than one FAR part. Those definitions also 
have been amended for clarity. The definition of ``classified 
information'' has been further amended to reflect classification of 
privately generated restricted data in accordance with Department of 
Energy regulations at 10 CFR 1045.21. The rule also amends the policy 
regarding bid openings for classified acquisitions at FAR 14.402-2 for 
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 65 FR 46558, July 28, 2000. Four respondents submitted 
comments on the proposed rule. The Councils considered all comments in 
the development of the final rule. The following issues merit noting:
     Comment: Expand the definition of ``classified 
information'' at FAR 2.101 to include privately generated Restricted 
Data, which is established under the Atomic Energy Act of 1954, as 
amended, and implemented in 10 CFR 1045.21. Response: Accepted.
     Comment: Amend the ``classified contract'' definition at 
FAR 2.101 to address only situations where the contract itself is 
classified and add a new ``contracts involving access to classified'' 
definition at FAR 2.101. Commentor believed that the suggested change 
was more in keeping with a ``plain language'' philosophy. Response: Not 
accepted. The suggested change does not conform to the way the terms 
are used in the FAR.
     Comment: The rule at FAR 14.402-2 states ``the contracting 
officer must not make a public record of the bids or the bid prices.'' 
The language is too narrow because it only restricts the contracting 
officer from making a public record. Response: Accepted. The current 
FAR language will be retained in lieu of the language in the proposed 
rule. Keeping the present FAR language addresses the person opening the 
    This is not a significant regulatory action, and therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not have a significant economic impact on a substantial 
number of small entities within the meaning of the Regulatory 
Flexibility Act, 5 U.S.C. 601, et seq., because, while we have made 
changes for clarity, we

[[Page 6114]]

have not substantively changed procedures for award and administration 
of contracts.

C. Paperwork Reduction Act

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

List of Subjects in 48 CFR parts 2, 4, 14, and 32

    Government procurement.

    Dated: February 1, 2002.
Al Matera,
Director, Acquisition Policy Division.

    Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 14, and 32 
as set forth below:

    1. The authority citation for 48 CFR parts 2, 4, 14, and 32 
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).


    2. Amend section 2.101 by adding, in alphabetical order, the 
definitions ``classified acquisition,'' ``classified contract,'' and 
``classified information'' to read as follows:

2.101  Definitions.

* * * * *
    Classified acquisition means an acquisition in which offerors must 
have access to classified information to properly submit an offer or 
quotation, to understand the performance requirements, or to perform 
the contract.
    Classified contract means any contract in which the contractor or 
its employees must have access to classified information during 
contract performance. A contract may be a classified contract even 
though the contract document itself is unclassified.
    Classified information means any knowledge that can be communicated 
or any documentary material, regardless of its physical form or 
characteristics, that--
    (1)(i) Is owned by, is produced by or for, or is under the control 
of the United States Government; or
    (ii) Has been classified by the Department of Energy as privately 
generated restricted data following the procedures in 10 CFR 1045.21; 
    (2) Must be protected against unauthorized disclosure according to 
Executive Order 12958, Classified National Security Information, April 
17, 1995, or classified in accordance with the Atomic Energy Act of 
* * * * *


4.401  [Reserved]

    3. Section 4.401 is removed and reserved.


14.103-1  [Amended]

    4. Amend section 14.103-1 in paragraph (c) by removing ``(see 

    5. Revise section 14.402-2 to read as follows:

14.402-2  Classified bids.

    The general public may not attend bid openings for classified 
acquisitions. A bidder or its representative may attend and record the 
results if the individual has the appropriate security clearance. The 
contracting officer also may make the bids available at a later time to 
properly cleared individuals who represent bidders. No public record 
shall be made of bids or bid prices received in response to classified 
invitations for bids.


32.1103  [Amended]

    6. Amend section 32.1103 in paragraph (d) by removing ``(see 

[FR Doc. 02-2913 Filed 2-7-02; 8:45 am]