[Federal Register: October 1, 2003 (Volume 68, Number 190)]
[Rules and Regulations]               
[Page 56676-56679]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr01oc03-19]                         

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 2, 4, 5, 6, 7, 9, 10, 12, 13, 14, 19, 22, 25, 34, 35, 
and 36

[FAC 2001-16; FAR Case 1997-304; Item II]
RIN 9000-AI10

 
Federal Acquisition Regulation; Electronic Commerce in Federal 
Procurement

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

ACTION: Interim rule adopted as final with changes.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to further implement 
section 850 of the National Defense Authorization Act for Fiscal Year 
1998; and implement section 810 of the Floyd D. Spence National Defense 
Authorization Act for Fiscal Year 2001.
    Section 850 calls for the use of cost-effective procedures and 
processes that employ electronic commerce in the conduct and 
administration of Federal procurement systems. This includes the 
designation in the FAR of a single point of universal electronic public 
access to Governmentwide procurement opportunities (the 
``Governmentwide Point of Entry'' or ``GPE''). Section 810 allows 
agencies to provide access to notices through the GPE, as designated in 
the FAR, instead of publishing them via the Commerce Business Daily 
(CBD).
    This rule finalizes the interim rule that designated Federal 
Business Opportunities (FedBizOpps) as the GPE. In addition, this final 
rule makes the GPE the exclusive official source for public access to 
notices of procurement actions over $25,000.

DATES: Effective Date: October 1, 2003.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC, 20405, (202) 501-4755, for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Cecelia Davis, Procurement Analyst, at (202) 219-
0202. Please cite FAC 2001-16, FAR case 1997-304.

SUPPLEMENTARY INFORMATION:

A. Background

1. Implementation of Section 850 of the Defense Authorization Act for 
Fiscal Year 1998

    Section 850, which is codified at section 30 of the Office of 
Federal Procurement Policy Act (41 U.S.C. 426), requires agencies to 
``establish, maintain, and use, to the maximum extent that is 
practicable and cost-effective, procedures and processes that employ 
electronic commerce in the conduct and administration of their 
procurement systems.'' Among other things, section 850 called for ``any 
notice of agency requirements or agency solicitation for contract 
opportunities'' to be provided in a form that allows ``convenient and 
universal user access through a single, government-wide point of 
entry'' (GPE). In addition, section 850 amended titles 10, 15, 40, and 
41 of the United States Code to eliminate the statutory preference for 
the Federal Acquisition Computer Network (FACNET) computer architecture 
in conducting transactions electronically.
    On October 30, 1998, the Councils published an interim rule (63 FR 
58590), which amended FAR subpart 4.5 and made associated changes to 
FAR parts 2, 5, 13, 14, and 32 to implement section 850. In particular, 
the interim rule amended the FAR to--
    [sbull] Promote the cost-effective application of electronic 
commerce in Federal procurement; and
    [sbull] Require Federal procurement systems that employ electronic 
commerce to apply nationally and internationally recognized standards 
that broaden interoperability and ease the electronic interchange of 
information.
    Around the time that the interim rule was developed, the General 
Services Administration (GSA), the National Aeronautics and Space 
Administration (NASA), and other agencies piloted, and later began 
using, ``FedBizOpps'' (formerly known as the Electronic Posting System) 
to take greater advantage of electronic tools. Among other things, 
these efforts were designed to provide sellers with ``one-stop'' access 
to business opportunities (i.e., where sellers, after identifying pre-
solicitation notices of interest for actions above $25,000, could 
quickly access related solicitation information through a direct link). 
These efforts were also intended to streamline agency buyers' 
preparation and issuance of notices and solicitation information 
without disrupting, eliminating, or otherwise requiring the replacement 
of current agency electronic commerce software.
    In the spring of 2000, the Office of Federal Procurement Policy 
(OFPP) recommended that FedBizOpps (http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov) be 
designated as the GPE. The Councils published a proposed rule in the 
Federal Register to reflect this recommendation (65 FR 50872, August 
21, 2000). The preamble to the proposed rule described the Government's 
objectives in designating a GPE (i.e., to create a central point for 
electronic access to business opportunities, to follow the commercial 
lead, and to modernize processes used by sellers and buyers) and how 
FedBizOpps met these objectives.
    After considering public comments on the proposed rule, the 
Councils published an interim rule in the Federal Register to make the 
proposed designation of FedBizOpps as the GPE effective (66 FR 27406, 
May 16, 2001). That rule required agencies to make notices of 
contracting opportunities that meet the criteria in FAR 5.101 and 5.201 
accessible via FedBizOpps by October 1, 2001. In addition, the rule--
    [sbull] Added place of contract performance and set-aside status as 
two new data fields to the required notice content;
    [sbull] Required agencies to make accessible through FedBizOpps 
other notices that were being published in the CBD, such as 
presolicitation notices and award notices supporting subcontracting 
opportunities;
    [sbull] Required agencies to make accessible via FedBizOpps most 
solicitations and amendments associated with business opportunities 
listed on the FedBizOpps web site;
    [sbull] Permitted contractors to publicize subcontracting 
opportunities with the intent of supporting achievement of 
subcontracting goals; and
    [sbull] Permitted agencies to make accessible via FedBizOpps 
information that allows potential offerors to better understand how 
they can meet the Government's needs.
    This final rule finalizes the GPE designation that was proposed at 
65 FR 50872, August 21, 2000, and made effective by the interim rule 
published

[[Page 56677]]

in the Federal Register at 66 FR 27406, May 16, 2001

2. Implementation of Section 810 of the Defense Authorization Act for 
Fiscal Year 2001

    Section 810 amends section 18 of the Office of Federal Procurement 
Policy Act (41 U.S.C. 416) and section 8(e) of the Small Business Act 
(15 U.S.C. 637(e)). As amended, these provisions allow agencies to 
provide access to their notices of solicitation either by transmitting 
them to the GPE designated in the FAR or by publishing them in the CBD, 
rather than mandating notices only through the CBD as had previously 
been required.
    To implement section 810, the interim rule that was published on 
May 16, 2001 (66 FR 27406), established FedBizOpps (i.e., the 
designated GPE) as the principal venue for procurement notices. 
Pursuant to that rule, agencies have been required to transmit notices 
to FedBizOpps since October 1, 2001. The rule required duplicate 
notices in the CBD through January 1, 2002, using the current format 
prescribed for the electronic version of the CBD, Commerce Business 
Daily Network (CBDNet). The duplication of notices transmitted to 
FedBizOpps in the CBD through the end of the calendar year 2001 was 
designed to provide additional time for vendors to become acclimated to 
FedBizOpps as the GPE.
    The interim rule provided that agencies need not provide duplicate 
notice in the CBD as of January 1, 2002, and instead may rely 
exclusively on the mandatory notice in FedBizOpps to satisfy the 
required access. Thus, the interim rule effectively laid the foundation 
for the phase-out of the CBD and CBDNet by making their use non-
mandatory. Agencies have been relying exclusively on FedBizOpps since 
the beginning of January 2002.
    This final rule clarifies that the GPE is the exclusive source for 
public access to notices of procurement actions over $25,000. Sole 
reliance on FedBizOpps is enabling the Government and its business 
partners to take advantage of the improved access to information and 
efficiencies made possible through electronic processes.

3. Public Comments

    Public comments regarding the proposed designation of FedBizOpps as 
the GPE were solicited and received in response to the proposed rule 
published in the Federal Register at 65 FR 50872, August 21, 2000. For 
this reason, the subsequent interim rule that was published in the 
Federal Register at 66 FR 27406, May 16, 2001, sought comments on the 
issues unique to that rule--namely, those relating to the 
implementation of section 810--for consideration in the formulation of 
this final rule.
    The majority of the comments received in response to the interim 
rule focused on technical considerations related to the use of 
FedBizOpps, as opposed to the policies set forth in the rule. Those 
comments were referred to the FedBizOpps ``users group'' for 
consideration. The users group is comprised of agency representatives 
who help to manage their agency's use of FedBizOpps. The remaining 
comments are briefly summarized as follows:
    [sbull] Two commenters suggested continuing the publication of 
printed synopses. This suggestion was not accepted. The Councils 
believe the cost of issuing printed notices would be excessive for the 
small number of firms that would be interested in printed copies. 
Continued operation of a paper-based process would force the Government 
to shoulder unnecessary cost and burden. By contrast, sole reliance on 
FedBizOpps enables the Government and its business partners to take 
advantage of the improved access to information and efficiencies made 
possible through electronic processes.
    [sbull] One commenter indicated that the rule should have addressed 
the underlying requirements for publication of notices and the content 
of notices. No changes were made to the rule based on this comment. The 
general requirement to synopsize and the contents of synopses are 
already addressed in FAR subpart 5.2. This rule does not change the 
underlying requirement to synopsize, which is rooted in section 18 of 
the Office of Federal Procurement Policy Act, 41 U.S.C. 416. Agencies' 
internal review procedures provide the necessary oversight of 
contracting personnel to ensure compliance with these requirements.
    [sbull] One commenter indicated that the interim FAR coverage 
failed to modify the timeframes for presumption of publication even 
though FedBizOpps will provide a near-instantaneous display of notices. 
FAR 5.203(g) has been amended to shorten to one day the time for 
presumption of publication.
    [sbull] Finally, one commenter offered several editorial changes to 
improve the readability of the rule. These comments were accepted where 
possible.
    This is a significant regulatory action and, therefore, was subject 
to review under Section 6(b) of Executive Order 12866, Regulatory 
Planning and Review, dated September 30, 1993. This rule is not a major 
rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to 
this final rule. The Councils prepared a Final Regulatory Flexibility 
Analysis (FRFA), and it is summarized as follows:

    The final rule further implements section 850 of the National 
Defense Authorization Act for Fiscal Year 1998, Pub. L. 105-85, and 
section 810 of the Floyd D. Spence National Defense Authorization 
Act for Fiscal Year 2001, Pub. L. 106-398. Section 850 amends titles 
10, 15, 40, and 41 of the United States Code to eliminate the 
preference for electronic commerce within Federal agencies to be 
conducted on the Federal Acquisition Computer Network (FACNET) 
computer architecture. Section 810 amends 41 U.S.C. 416 and 15 
U.S.C. 637 to allow solicitation notices to be published via a 
single Government point of entry (FedBizOpps) or via the CBD.
    The objectives of the rule are (1) designate a single 
Governmentwide point of entry on the Internet, http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov
, where agencies are required to provide 
convenient and universal public access to information on their 
procurement opportunities, and (2) to permit electronic access to 
notices of solicitation through the single Governmentwide point of 
entry as a substitute for the previously required paper publication 
in the CBD.
    One comment was received in response to the Initial Regulatory 
Flexibility Analysis. The commentor recommended that the rule 
continue dual publishing of contracting opportunities in FedBizOpps 
and the CBD so that small businesses would have two sources from 
which to identify notices and solicitations. The IRFA should then be 
republished discussing Section 810 based on an interpretation that 
it does not preclude dual publishing of notices in the CBD and 
FedBizOpps. In addition, the comment suggested that the time for 
agencies to become fully compliant with the regulation be extended 
and that the rule mention the linkage between FedBizOpps and the 
Procurement Marketing and Access Network (PRO-Net).
    No changes were made to the rule based on the comment. While 
Section 810 does not preclude the continuation of dual publicizing 
vehicles, the Federal Government is currently taking steps to 
eliminate duplicative systems in order to reduce operating costs for 
the Government and to provide one face to industry. Equally, if not 
more importantly, sole reliance on FedBizOpps enables the Government 
and its business partners to take advantage of the improved access 
to information and efficiencies made possible through electronic 
processes. With regard to extending the time provided for agencies 
to become compliant, this extension was not considered necessary 
since agencies have already completed their transition to 
FedBizOpps, in compliance with the interim rule, which made agency 
use of FedBizOpps mandatory as of October 1, 2001. With regard to 
linkage between FedBizOpps and PRO-Net, such linkage has been made 
on the cover page of FedBizOpps. The Councils do not

[[Page 56678]]

believe this linkage needs to be the subject of a regulatory 
promulgation.
    The final rule will apply to all large and small entities that 
do business or are planning to do business with the Government. 
FedBizOpps is designed to be sufficiently versatile to allow sellers 
and service providers to access and download information through 
different commercial electronic means, including web-based 
technology, bulk data feeds, and electronic mail. This versatility 
will enable the more than 49,101 small and 19,382 large businesses 
to have easy access to Government business opportunities over 
$25,000.
    The rule imposes no reporting, recordkeeping, or other 
compliance requirements. There are no practical alternatives that 
will accomplish the objectives of this rule.

    Interested parties may obtain a copy of the FRFA from the FAR 
Secretariat. The FAR Secretariat has submitted a copy of the FRFA to 
the Chief Counsel for Advocacy of the Small Business Administration.

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, 5, 6, 7, 9, 10, 12, 13, 14, 
19, 22, 25, 34, 35, and 36

    Government procurement.

    Dated: September 24, 2003.
Laura G. Auletta,
Director, Acquisition Policy Division.

Interim Rule Adopted as Final With Changes

0
Accordingly, DoD, GSA, and NASA adopt the interim rules amending 48 CFR 
parts 2, 4, 5, 6, 7, 9, 12, 13, 14, 19, 22, 34, 35, and 36 that were 
published in the Federal Register at 63 FR 48590, October 30, 1998, and 
66 FR 27406, May 16, 2001, as a final rule with the following changes:
0
1. The authority citation for 48 CFR parts 2, 5, 9, 10, 12, 13, 14, 22, 
25, and 35 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 2--DEFINITIONS OF WORDS AND TERMS


2.101  [Amended]

0
2. Amend section 2.101 in paragraph (b) by removing the definition 
``Commerce Business Daily (CBD)''.

PART 5--PUBLICIZING CONTRACT ACTIONS

0
3. Revise section 5.003 to read as follows:


5.003  Governmentwide point of entry.

    For any requirement in the FAR to publish a notice, the contracting 
officer must transmit the notices to the GPE.


5.101  [Amended]

0
4. Amend section 5.101 in paragraph (a)(1) by removing ``, unless 
covered by 5.003''; and by removing ``5.207(d) and (g)'' from the 
introductory text of paragraph (a)(2) and paragraph (a)(2)(i) (twice) 
and adding ``5.207(c)'' in its place.

0
5. Amend section 5.201 by removing paragraph (b)(2) and redesignating 
paragraph (b)(3) as (b)(2); and revising newly designated paragraph 
(b)(2) and paragraph (d) to read as follows:


5.201  General.

* * * * *
    (b)(1) * * *
    (2) When transmitting notices to FACNET, contracting officers must 
ensure the notice is forwarded to the GPE.
* * * * *
    (d) The GPE may be accessed via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov
.

0
6. Amend section 5.203 by revising the introductory text of paragraph 
(a); and removing the first and second sentences from paragraph (g) and 
adding a sentence in its place to read as follows:


5.203  Publicizing and response time.

* * * * *
    (a) An agency must transmit a notice of proposed contract action to 
the GPE (see 5.201). All publicizing and response times are calculated 
based on the date of publication. The publication date is the date the 
notice appears on the GPE. The notice must be published at least 15 
days before issuance of a solicitation except that, for acquisitions of 
commercial items, the contracting officer may--
* * * * *
    (g) Contracting officers may, unless they have evidence to the 
contrary, presume the notice was published one day after transmission 
to the GPE. * * *
* * * * *


5.205  [Amended]

0
7. Amend section 5.205 by removing the last sentence of paragraph (b), 
the second and third sentences of paragraph (d)(1), the last sentence 
of paragraph (e), and the second sentence of paragraph (f).


5.206  [Amended]

0
8. Amend section 5.206 by removing from the introductory text of 
paragraph (a) ``, the CBD, or both''; and by removing from paragraph 
(b)(1) ``, following the standard CBD format for items 7, 10, 11, and 
17 in 5.207(b)(4)''.

0
9. Revise section 5.207 to read as follows:


5.207  Preparation and transmittal of synopses.

    (a) Content. Each synopsis transmitted to the GPE must address the 
following data elements, as applicable:
    (1) Action Code.
    (2) Date.
    (3) Year.
    (4) Government Printing Office (GPO) Billing Account Code.
    (5) Contracting Office Zip Code.
    (6) Classification Code.
    (7) Contracting Office Address.
    (8) Subject.
    (9) Proposed Solicitation Number.
    (10) Opening and Closing Response Date.
    (11) Contact Point or Contracting Officer.
    (12) Contract Award and Solicitation Number.
    (13) Contract Award Dollar Amount.
    (14) Contract Line Item Number.
    (15) Contract Award Date.
    (16) Contractor.
    (17) Description.
    (18) Place of Contract Performance.
    (19) Set-aside Status.
    (b) Transmittal. Transmissions to the GPE must be in accordance 
with the interface description available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov
.
    (c) General format for ``Description.'' Prepare a clear and concise 
description of the supplies or services that is not unnecessarily 
restrictive of competition and will allow a prospective offeror to make 
an informed business judgment as to whether a copy of the solicitation 
should be requested including the following, as appropriate:
    (1) National Stock Number (NSN) if assigned.
    (2) Specification and whether an offeror, its product, or service 
must meet a qualification requirement in order to be eligible for 
award, and identification of the office from which additional 
information about the qualification requirement may be obtained (see 
subpart 9.2).
    (3) Manufacturer, including part number, drawing number, etc.
    (4) Size, dimensions, or other form, fit or functional description.
    (5) Predominant material of manufacture.
    (6) Quantity, including any options for additional quantities.

[[Page 56679]]

    (7) Unit of issue.
    (8) Destination information.
    (9) Delivery schedule.
    (10) Duration of the contract period.
    (11) For a proposed contract action in an amount estimated to be 
greater than $25,000 but not greater than the simplified acquisition 
threshold, enter--
    (i) A description of the procedures to be used in awarding the 
contract (e.g., request for oral or written quotation or solicitation); 
and
    (ii) The anticipated award date.
    (12) For Architect-Engineer projects and other projects for which 
the supply or service codes are insufficient, provide brief details 
with respect to: location, scope of services required, cost range and 
limitations, type of contract, estimated starting and completion dates, 
and any significant evaluation factors.
    (13) Numbered notes (see paragraph (e) of this section), including 
instructions for set-asides for small businesses.
    (14) In the case of noncompetitive contract actions (including 
those that do not exceed the simplified acquisition threshold), 
identify the intended source (see paragraph (e) of this section) and 
insert a statement of the reason justifying the lack of competition.
    (15) Insert a statement that all responsible sources may submit a 
bid, proposal, or quotation which shall be considered by the agency.
    (16) If solicitations synopsized through the GPE will not be made 
available through the GPE, provide information on how to obtain the 
solicitation.
    (17) If the solicitation will be made available to interested 
parties through electronic data interchange, provide any information 
necessary to obtain and respond to the solicitation electronically.
    (18) In the case of a very small business set-aside, identify the 
Designated Region (see Subpart 19.9).
    (19) If the technical data required to respond to the solicitation 
will not be furnished as part of such solicitation, identify the source 
in the Government, if any, from which the technical data may be 
obtained.
    (d) Set-asides. When the proposed acquisition provides for a total, 
partial, or very small business set-aside or a HUBZone small business 
set-aside, the appropriate Numbered Note will be cited.
    (e) Numbered notes. Numbered Notes are footnotes to be used by 
contracting officers to eliminate the unnecessary duplication of 
information that appears in various announcements. An explanation of 
the numbered notes appears at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov.
    (f) Codes to be used in Synopses to identify services or supplies. 
Contracting officers must use one of the classification codes 
identified at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.fedbizopps.gov/ to identify services or 
supplies in synopses.
    (g) Cancellation of synopsis. Contracting officers should not 
publish notices of solicitation cancellations (or indefinite 
suspensions) of proposed contract actions in the GPE. Cancellations of 
solicitations must be made in accordance with 14.209 and 14.404-1.

0
10. Amend section 5.301 by revising paragraph (c) and removing 
paragraph (d) to read as follows:


5.301  General.

* * * * *
    (c) With respect to acquisitions subject to the Trade Agreements 
Act, contracting officers must submit synopses in sufficient time to 
permit their publication in the GPE not later than 60 days after award.

PART 9--CONTRACTOR QUALIFICATIONS


9.204  [Amended]

0
11. Amend section 9.204 in paragraph (a)(1) by removing the last 
sentence.


9.205  [Amended]

0
12. Amend section 9.205 in the introductory text of paragraph (a) by 
removing the third sentence.

PART 10--MARKET RESEARCH


10.002  [Amended]

0
13. Amend section 10.002 by removing ``(see 5.207(e)(4))'' from the end 
of paragraph (d)(2) and adding ``(see 5.207(e))'' in its place.

PART 12--ACQUISITION OF COMMERCIAL ITEMS


12.603  [Amended]

0
14. Amend section 12.603 in paragraph (a) by removing the last 
sentence; in paragraph (c)(1) by removing ``for items 1-16''; and in 
paragraph (c)(2) by removing ``item 17,'' and adding ``the'' in its 
place.

PART 13--SIMPLIFIED ACQUISITION PROCEDURES


13.104  [Amended]

0
15. Amend section 13.104 in the first sentence of paragraph (b) by 
removing ``neither using FACNET nor'' and adding ``not using either 
FACNET or'' in its place.

PART 14--SEALED BIDDING


14.503-2  [Amended]

0
16. Amend section 14.503-2 in paragraph (b) by removing ``(see 
5.207(b)(1))'' and adding ``(see 5.207)'' in its place.

PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS


22.1009-4  [Amended]

0
17. Amend section 22.1009-4 in the introductory text of paragraph (b) 
by removing ``(see 5.207(g)(4))''.

PART 25--FOREIGN ACQUISITION


25.408  [Amended]

0
18. Amend section 25.408 in paragraph (a)(2) by removing 
``(5.207(e)(2))'' and adding ``(5.207(e))'' in its place.

PART 35--RESEARCH AND DEVELOPMENT CONTRACTING


35.016  [Amended]

0
19. Amend section 35.016 in paragraph (c) by removing the last 
sentence.

[FR Doc. 03-24583 Filed 9-30-03; 8:45 am]