[Federal Register Volume 69, Number 243 (Monday, December 20, 2004)]
[Rules and Regulations]
[Pages 76341-76347]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-27633]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 4, 14, 15, and 52
[FAC 2001-26; FAR Case 2002-024; Item I]
RIN 9000-AJ80
Federal Acquisition Regulation; Electronic Representations and
Certifications
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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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 require offerors
to submit representations and certifications electronically via the
Business Partner Network (BPN), unless certain exceptions apply.
DATES: Effective Date: January 1, 2005.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755
for information pertaining to status or publication schedules. For
clarification of content, contact Mr. Gerald Zaffos, Procurement
Analyst, at (202) 501-6091. Please cite FAC 2001-26, FAR case 2002-024.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 69 FR 4012, January 27, 2004. The 60-day comment period for
the proposed rule ended March 29, 2004. Forty-five comments were
received. Some of the comments merely agreed with the concept of ORCA;
others pointed out typographical errors. The substantive comments are
discussed below.
1. Comment: Should a contracting officer check for paper reps and
certs and, failing to find them, check for electronic ones? Or, should
a contracting officer only check for electronic ones if the offeror
falls within a particular class of small business?
Council's response: The inclusion of the FAR provisions at 52.204-8
or 52.212-3(j) (as described in the final rule) in a solicitation would
alert both the vendor and the contracting officer that the electronic
completion of representations and certifications on the Online
Representations and Certifications Application (ORCA) module is
required for the specific contracting action.
2. Comment: Without reps and certs, how would a Contracting Officer
know what class of small business an offeror is?
Council's response: ORCA includes the socio-economic
representations and certifications (such as FAR 52.219-1, Small
Business Program Representations.) A vendor would revise its responses
in either FAR 52.204-8 or 52.212-3(j) (as described in the final rule)
if its responses in ORCA is incorrect for the present solicitation.
3. Comment: The possibility of parallel paper and electronic
systems offers myriad chances for error. What if paper and electronic
versions differ? What if an offeror from the class of small businesses
not required to build an electronic record chooses to build an
electronic record? What if someone required to build an electronic
record submits paper reps and certs instead?
Council's response: The provisions at FAR 52.204-8 and 52.212-3(j)
make it clear that vendors are required to complete the representations
and certifications in ORCA. Those certifications and representations
would take precedence over any other representations and certifications
received (for the same provisions included in ORCA) for the specific
contract action unless the offeror indicates he is amending those
answers in accordance with the referenced provisions.
4. Comment: Since contractors are currently using the CCR database,
the EEO database, PRO-Net, and EPLS (consolidated under ``BPN.com''),
will there be a future consideration for a contractor to have access
and use the contractor's reps and certs rather than have the contractor
continuing to request a new reps and certs package for the same sources
that are on the ``BPN'' reps and certs database?
Council's response: Vendors will have access to ORCA. Please also
note that the PRO-Net system has been retired, with its key
capabilities being incorporated into CCR.
5. Comment: An additional clarification at FAR 12.301 is needed for
oral solicitations. FAR 13.106-1(c) states the contracting officer
shall solicit quotations orally to the maximum extent practicable. FAR
5.101(a)(2)(ii) exempts contracting officers from posting $10K-$25K
requirements if oral solicitations are used. Otherwise, the requirement
has to be posted for 10 days - a millennium in the customer's
[[Page 76342]]
eyes. In contrast, FAR 12.301(a)(2) says we have to use FAR 52.212-3,
Offeror Representations and Certifications--Commercial Items, in all
commercial solicitations. Recommend verbiage be added to stating,
``...other than oral...'' just before the first ``solicitation'' in FAR
12.301(b). It would then read, ``To implement this Act, the contracting
officer shall insert the following provisions in other than oral
solicitations for ....'' If this isn't the best place for it, then I
would recommend similar verbiage in FAR 12.301(b)(2) to clear up this
ambiguity.
Council's response: This comment will be separately considered by
the Councils for appropriate action.
6. Comment: The requirement for a physical affirmation (check box)
that the representations and certifications posted to BPN are current
appears unnecessary. Respondent recommends the following language:
``The Offeror has completed the annual representations and
certifications electronically via the Business Partner Network (BPN)
web site at http://orca.bpn.gov, however, submits the following changes
pertaining to this specific solicitation as identified below (insert
changes, identifying change by clause number, title, and date). These
amended representation(s) and/or certifications are also incorporated
in this offer and are current, accurate, and complete as of the date of
this proposal.'' This (a) addresses the true intent of the proposed
language; (b) eliminates additional physical check boxes; and (c)
reinforces the fact that the vendor is being held responsible for the
currency of their online reps and certs information.
Council's response: We concur and have revised the applicable
provisions accordingly.
7. Comment: Should FAR 52.222-38, Compliance with Veteran's
Employment Reporting Requirements, be included in FAR 14.213(b)?
Council's response: We concur. The final rule and ORCA reflect the
addition of this provision.
8. Comment: Can the electronic representations and certifications
be incorporated with the Central Contractor Registration (CCR) file so
as not to cause an additional burden on contractors already registered
in the CCR?
Council's response: The ORCA portion of the BPN was built to
supplement the data in CCR. Because CCR is now used for more than
contracting purposes, we decided to not require additional
representation and certification information from all CCR registrants,
as it is only necessary for contracting offices. To alleviate the
burden on the vendors, company information collected in CCR is
electronically provided and pre-populated into ORCA. The vendor is not
asked to re-enter any information that is found in CCR. The only
information the vendor needs to supply in ORCA is directly related to
representations and certifications.
9. Comment: Our contracts are for low dollar amounts and I cannot
see the contractors doing all this preliminary work just for a small
amount of business for them. All of this may work for higher dollar
business. Can there be a dollar value attached?
Council's response: The provisions included in ORCA have
applicability at different dollar values with the majority applying to
items over the micro-purchase level. As such, ORCA must be applied to
all acquisitions over the micro-purchase threshold. (However, in
accordance with FAR 4.1102, micro-purchases can also be exempted from
Central Contractor Registration (CCR) requirements.)
10. Comment: If vendors already access CCR, why is ORCA available
only through the Business Partner Network? It seems it would be easier
to include the necessary fields for ORCA into CCR so that vendors would
not have to access two systems.
Council's response: ORCA is available through the BPN because it is
part of the BPN, as is CCR. However, just like CCR, it can be reached
directly via the URL http://orca.bpn.gov. To alleviate the burden on
the vendor, company information collected in CCR is electronically
provided and pre-populated into ORCA. The vendor is not asked to re-
enter any information that is found in CCR.
11. Comment: Does a contractor first submit online reps and certs
when he/she receives a solicitation and decides to submit an offer; or
are the CCR database administrators going to notify its registrants and
instruct them to go to the ``Online Representations and Certifications
Application (ORCA)'' at bpn.gov and enter in the reps and certs?
Council's response: The first time the vendor responds to a
solicitation that includes either FAR 52.204-8 or 52.212-3(j), the
vendor would be required to complete the online representations and
certifications. However, the Government plans an extended outreach
effort, including notifications from CCR, in order to publicize ORCA's
availability and required use.
12. Comment: Informational language in the proposed rule stated,
``Small businesses that are exempted from registering in the CCR
database are also exempted from submitting representations and
certifications electronically.'' This statement is confusing. We are
not aware of any business class exceptions to CCR registration. The
exception to CCR registration at FAR 4.1102 does not apply to the
entity doing business with the Government insomuch as it applies to the
type of acquisition or contract being awarded at the time. Even if a
contractor was awarded a contract that happened to be exempt from the
CCR requirement, the exception does not then apply for subsequent or
new awards, if the new award does not meet one of the exceptions.
Council's response: We concur. The informational language has been
corrected in the final rule.
13. Comment: We think that contractors may become frustrated or
confused if, after completing reps and certs on line, they are then
required to fill out reps and certs in another contract, just because
that particular contract is exempt from the CCR requirements. Perhaps
there should be direction to the CO to check ORCA before deciding which
reps and certs clause to include in a solicitation for an award that
may be exempt from CCR. If the contractor has already completed the
annual reps and certs, then the annual reps and certs clause(s) could
be used in the solicitation. If not, then the CO would include all
applicable reps and certs required for the solicitation. However, since
reps and certs are required for every award (except for
micropurchases), there should be no exceptions for annual reps and
certs. All solicitations should include the annual reps and certs
clause. We believe that even contractors who may have had a contract
exempted from CCR will eventually have to be registered in the CCR and
therefore will be able to submit annual reps and certs.
Council's response: Concur. Final rule includes language to
encourage ORCA use when CCR is not required and provides further
instructions if the offeror has already completed representations and
certifications in ORCA.
14.Comment. Perhaps the requirement for annual reps and certs
should be moved from FAR Parts 12, 14, and 15 and moved to FAR Part 4,
in a new Subpart, 4.12 (after 4.11, Central Contractor Registration).
Alternatively, revise Subpart 4.11 to be a subpart titled Business
Partner Network, with two sections. The scope of the subpart would
prescribe policies and procedures for requiring contractor registration
in the CCR database, and
[[Page 76343]]
submission of annual representations and certifications.
Council's response: We concur. The final rule adds a new Subpart
4.12 that addresses these requirements.
15. Comment. We have a concern about the submission process of the
``Online Representations and Certification Application (ORCA)''. In
reading the ORCA procedures, we noted that contractors would be
required to have a Marketing Partner Identification Number (MPIN) in
order to enter information into ORCA. This is a number created by the
vendor during the registration process in the CCR. We have a concern
about this requirement. The MPIN is not a mandatory field in the CCR
and it is likely that quite a few contractors did not create an MPIN at
the time of CCR registration. It is possible that a lot of contractors
will now have to go back to CCR and create an MPIN. We suggest allowing
that the Trading Partner Identification Number (TPIN) issued by CCR be
used instead, or change the MPIN field in CCR to a mandatory one. While
this may be outside the scope of this case, this is something that
should be looked into.
Council's response: The TPIN, for security reasons, is not provided
to anyone (including other government systems) other than the Point of
Contact provided by the registrant in its CCR record. The MPIN is
required for vendors to use other Government systems (such as the Past
Performance Information Retrieval System (PPIRS) and Federal Technical
Data Solution (FedTeDS)), so its use for ORCA is consistent. However,
it is true that currently the MPIN is an optional field in CCR. The
suggestion to make it mandatory has been provided to the CCR Program
Manager for consideration. Additionally, vendor outreach is planned for
the implementation of ORCA, which will include instructions on the MPIN
and its use.
16. Comment: Why is there no reference to annual representations
and certifications in FAR Part 13 for use with non-commercial item
acquisitions. We assume that either FAR 52.214-30 or 52.215-7 would be
used. We recommend adding language similar to that at the proposed FAR
15.209(g) to FAR 13.302-5(d).
Council's response: Although FAR Part 13 does not specifically
discuss representations and certifications, FAR 13.003(g)(1) states
that any appropriate combination of procedures in FAR parts 13, 14, 15,
35, or 36 may be used for non-commercial items that do not exceed the
simplified acquisition threshold. This would include using ORCA.
17. Comment: We recommend adding language similar to that at the
proposed FAR 15.209(g) to FAR 14.201-9(e).
Council's response: By adding new Subpart 4.12, there is no need to
add language to FAR 14.201-9(e).
18.Comment: FAR 52.222-18, Certification Regarding Knowledge of
Child Labor for Listed End Products. This particular certification,
which is listed as a certification that is not to be included in a
solicitation that includes the annual reps and certs clause, doesn't
seem appropriate as an annual certification because it contains
contract specific fill-ins for the CO. This is only used for
acquisition of certain products, which the CO must identify in the
solicitation. How can this be an ``annual certification?''
Council's response: For the majority of vendors completing FAR
52.222-18, the answer would likely be the same: that they do not supply
any end products from the identified countries. Vendors that have
different answers in response to a specific solicitation would provide
those differences in accordance with FAR 52.204-8 or 52.212-3(j)
(whichever is included in the solicitation).
19. Comment: We think the language in the ``Annual Reps and Certs''
clauses should be revised to make it clear to offerors that any reps
and certs posted on the BPN that do not apply or are different because
of a particular solicitation must be identified. We are especially
concerned that offerors understand that while they may be certified as
a small business under one NAICS code, they may not be small under
another one.
Council's response: We concur. The language included in the new
Subpart 4.12 and in the provisions at FAR 52.204-8 and 52.212-3(j)
makes it clear that offerors are required to indicate in the specific
solicitation differences from the representations and certifications in
ORCA.
20. Comment: When using ORCA, will contractors indicate their
business size for the NAICS that they most commonly do business under
and then be required to update the listing and business size when
additional NAICS are used for particular situations? Or will they just
indicate how many employees/dollars and then have the Government make
assessments based on the particular NAICS that pertains to each
solicitation?
Council's response: The vendor can provide up to 20 NAICS in CCR
and consequently ORCA. Every NAICS the vendor provides to CCR is listed
in ORCA. Size determination is automatically calculated (using annual
revenue and number of employees) and displayed for each NAICS given.
Additionally, the vendor-provided annual revenue and number of
employees is shown. Contracting officers can use that information to
calculate size status for NAICS not provided.
21. Comment: Vendors may be reluctant to publish TIN numbers
because of concerns that it would be accessible to other parties.
Council's response: TIN numbers are never displayed in ORCA. The
notice ``TIN on File with CCR'' is shown in place of the actual TIN.
22. Comment: An offeror's response to the Buy American Act
certification would depend on the type of product being provided by the
vendor.
Council's response: Vendors can list all of their foreign end
products and the associated countries in ORCA. If in response to a
solicitation a vendor offers a foreign end product not listed in ORCA,
the vendor would provide the information in accordance with either
provision FAR 52.204-8 or 52.212-3(j).
23. Comment: The proposed FAR 52.214-30 and 52.215-7 clauses are
nearly identical (one referring to sealed bids and the other referring
to negotiation and offerors). Consider combining the two proposed
clauses into a single clause.
Council's response: Concur. The two provisions have been combined
into new provision FAR 52.204-8.
24. Comment: Will the BPN Web site for the representations and
certifications also accommodate agency-specific reps and certs, such as
DFARS 252.247-7022?
Council's response: At this time ORCA only contains FAR level
representations and certifications. Agency specific provisions are
included in RFPs as required by Agency policies and regulations.
However, this recommendation has been forwarded to the ORCA Program
Manager for possible future inclusion in ORCA.
25. Comment: It would appear that Certificates of Current Cost and
Pricing Data (when required - i.e., non-competitive RFPs) would need to
be included within RFPs, outside of their place within the Reps and
Certs.
Council's response: We concur. The certification at FAR 15.406-2,
Certificate of Current Cost or Pricing Data, is not included in ORCA.
26. Comment: Reps and Certs concerning Limited Rights Data/
Restricted Software would have to remain and RFP-specific requirement
to
[[Page 76344]]
be called out by a contractor in some other portion of their proposal.
Council's response: ORCA allows the vendor to enter multiple
Limited Rights Data and Restricted Computer Software into their record.
A vendor that would have different answers in response to a specific
solicitation would provide those differences in accordance with FAR
52.204-8 or 52.212-3(j) (whichever is included in the solicitation).
27. Comment: Information pertaining to Place of Performance would
have to be RFP- specific and identified by contractors in another
portion of their proposal.
Council's response: ORCA allows the vendor to enter multiple Places
of Performance. A vendor that would have different answers in response
to a specific solicitation would provide those differences in
accordance with FAR 52.204-8 or 52.212-3(j) (whichever is included in
the solicitation).
28. Comment: The identification of ``authorized negotiators,''
often included within Reps and Certs, is RFP-specific information for
most contractors, and would have to be identified elsewhere in a
contractor's proposal.
Council's response: ORCA does not provide for identification of
authorized negotiators. This requirement is solicitation specific.
29. Comment: There are a number of issues regarding the handling of
subcontractor Reps and Certs: (a) prime contractors could be given
controlled access to the CCR database, to determine whether and what
Reps and Certs have been completed by a subcontractor; (b) prime
contractors could rely on a written affirmation/certification from
subcontractors that they have completed the all-encompassing Reps and
Certs; and (c) giving prime contractors access to the CCR database is
probably the best solution, otherwise, there is a large amount of
information that prime contractors would still have to get from
subcontractors: business size, DUNS , taxpayer ID ,
whether they are debarred, or whether they are subject to the Cost
Accounting Standards, for several examples.
Council's response: ORCA is available to the public to search and
view. However, as previously stated, a vendor's TIN Number is never
publicly displayed on ORCA.
30. Comment: Contractors must be required to update their BPN
annual revenue size certifications whenever they complete a fiscal
year, and must be required to update their BPN number of employees size
certifications on a monthly basis in order for such certifications to
be current, accurate, and complete. Otherwise the BPN reps and certs
will be most likely be out-of-date, inaccurate, and incomplete,
resulting in increased costs for both the procuring agency (increased
number of size protests and related GAO protests) and offerors (costs
associated with preparing offer for procurement where concern is
ultimately found to be ineligible for award).
Council's response: In accordance with the provisions at FAR
52.204-8 and 52.212-3(j) (whichever is included in the solicitation),
the vendor's offer constitutes affirmation that the information in ORCA
is current, accurate, and complete as of the date of the offer. The
offeror assumes the risk of out-of-date, inaccurate, or incomplete
information by submission of his offer.
31. Comment: FAR 52.219-1 also contains reps and certs with respect
to offers from HUBZone joint ventures, which are contract-specific reps
and certs that cannot be submitted through the BPN (FAR 52.219-
1(b)(6)(ii)). If the rule is adopted as proposed, the HUBZone joint
venture reps and certs must be added to another FAR clause so that
affected entities can make the required joint venture reps and certs
with respect to particular contracts.
Council's response: We disagree. Vendors that would have different
answers in response to a specific solicitation would provide those
differences in accordance with FAR 52.204-8 or 52.212-3(j) (whichever
is included in the solicitation).
32. Comment: Under the proposed rule, firms will not have to submit
FAR 52.219-2, Equal Low Bids, on a contract-by-contract basis. However,
under FAR 52.219-2, a concern must identify the labor surplus area
(LSA) ``in which the costs to be incurred on account of manufacturing
or production (by the bidder or first-tier subcontractors) amount to
more than 50 percent of the contract price.'' Such a representation can
only be made on a contract-by-contract basis. FAR clause 52.219-2 must
be included in each particular contract. We recommend that proposed FAR
14.213(b)(9) be deleted.
Council's response: We disagree. For the majority of vendors
completing FAR 52.219-2, the answer would likely be the same regardless
of the solicitation. Vendors that have different answers in response to
a specific solicitation would provide those differences in accordance
with FAR 52.204-8 or 52.212-3(j), (whichever is included in the
solicitation).
33. Comment: Under the proposed rule, firms will not have to submit
FAR 52.219-22, Small Disadvantaged Business Status, on a contract-by-
contract basis. However, this clause allows a firm that has not been
certified as small disadvantaged business (SDB) to claim entitlement to
SDB preferences while an application for SDB certification is pending
(FAR 52.219-22(b)(1)(ii)). Procedures are currently in place for
expediting SBA's review of an SDB application when an applicant is the
apparent successful offeror (FAR 19.304(c)(2), 19.304(d); 13 CFR
124.1001(c)(2) and 124.1010). It is unclear if concerns can only
represent themselves as SDBs in BPN if they have in fact already been
certified as SDBs by SBA. If that is the case, then the provisions of
FAR clause 52.219-22(b)(1)(ii) must be included in all solicitations so
that firms can take advantage of the regulatory provisions which allow
concerns to claim entitlement to SDB preferences while an SDB
application is pending.
Council's response: We disagree. FAR 52.219-22(b)(1)(ii) is
included in ORCA. A vendor can initially indicate that it has submitted
a completed application to SBA and then update the representation if
and when it is certified. A vendor can also indicate a change in status
in either FAR 52.204-8 or 52.212-3(j), as appropriate.
Therefore, this final rule amends FAR parts 2, 4, 14, 15 and 52 to
require offerors to--
Provide representations and certifications electronically
via the BPN Website at http://orca.bpn.gov;
Update the representations and certifications as
necessary, but at least annually to ensure they are kept current,
accurate and complete; and
Make changes that affect only one solicitation by
completing the appropriate sections of either FAR 52.204-8 or 52.212-
3(j); whichever is included in the solicitation.
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 Regulatory Flexibility Act, 5 U.S.C. 601, et seq., applies to
this final rule. The Councils prepared a Final Regulatory Flexibility
Analysis (FRFA) as follows:
1. A succinct statement of the need for, and the objectives of,
the rule.
The FAR requires small businesses to provide representations and
certifications for individual solicitations. However, FAR 15.209(g)
and FAR 14.213 do permit annual submissions if authorized by
individual agencies. This rule establishes the requirement for
annual submissions by electronic means.
[[Page 76345]]
In an effort to broaden use and reliance upon e-business
applications, the Civilian Agency Acquisition Council and the
Defense Acquisition Regulations Council are working with the Office
of Federal Procurement Policy to eliminate the need to maintain
paper-based sources of contractor information. The objective of this
rule is to eliminate the need for offerors to submit the same
information (i.e., representations and certifications) to different
Government contracting and payment offices. By the offerors
providing this information to a centralized location, it is
anticipated that this rule will have a significant positive impact
on small businesses by reducing their overall administrative burden.
2. Legal basis for the rule.
There is no statutory basis for this rule but, rather, an e-
Government Integrated Acquisition Environment's (IAE) initiative to
re-use data as much as possible throughout the Federal procurement
workspace (i.e., ``submit once, use many'' times).
3. Description of, and, where feasible, estimate of the number
of small entities to which the rule will apply.
The rule applies to small business offerors that also are
required to register in the Central Contractor Registration (CCR)
database. The reason for the link with CCR is that, as part of the
online representations and certifications process, the software will
use information that an offeror has already provided into the CCR
database. The offeror will provide the additional information
needed. Therefore, small businesses that are exempted from
registering in the CCR database are also exempted from submitting
representations and certifications electronically. The following CCR
exceptions also apply to this rule:
(a) The purchase uses a Governmentwide commercial purchase card
as the purchasing mechanism.
(b) Registration (see 4.401) in the CCR database, or use of CCR
data, could compromise the safeguarding of classified information or
national security.
(c) The contract is awarded by--
(1) A deployed contracting officer in the course of military
operations, including, but not limited to, contingency operations as
defined in 10 U.S.C. 101(a)(13) or humanitarian or peacekeeping
operations as defined in 10 U.S.C. 2302(7); or
(2) A contracting officer in the conduct of emergency
operations, such as responses to natural or environmental disasters
or national or civil emergencies, e.g., Robert T. Stafford Disaster
Relief and Emergency Assistance Act (42 U.S.C. 5121).
(d) The contract is to support unusual or compelling needs.
(e) The award made is to a foreign vendor for work performed
outside the United States, if it is impractical to obtain CCR
registration before award.
Based on Governmentwide data, approximately, 20,825 small
businesses were awarded contracts of $25,000 or more in fiscal year
2002. It is estimated that a majority of them will be subject to the
rule. Many of these businesses are already among the over 240,000
registrants in CCR. Information is not available to identify the
additional number of small businesses that were awarded contracts of
less than $25,000, or were awarded basic agreements, basic ordering
agreements, or blanket purchase agreements.
4. Description of projected reporting, recordkeeping, and other
compliance requirements of the rule, including an estimate of the
classes of small entities that will be subject to the requirement
and the type of professional skills necessary for preparation of the
report or record.
The Office of Management and Budget has already approved the
current FAR information and recordkeeping requirement for obtaining
representations and certifications under OMB Control Number 9000-
0034. The rule decreases the collection requirements since the rule
requires offerors to provide representations and certifications
annually into a centralized database, in lieu of providing this
information with each solicitation.
Administrative or financial personnel that have general
knowledge of the contractor's business are able to register by
providing the pertinent information into the Business Partner
Network website.
5. Identification, to the extent practicable, of all relevant
Federal rules that may duplicate, overlap or conflict with the rule.
The rule will not duplicate, overlap, or conflict with any other
Federal rules.
6. Description of any significant alternatives to the final rule
that accomplish the stated objectives of applicable statutes and
that minimize any significant economic impact of the rule on small
entities.
There are no significant practical alternatives that will
accomplish the objective of this rule. Continued reliance on a
paper-based system would unnecessarily promote inefficiency
associated with paper-based processes. The successful phase-in of
CCR by the Department of Defense demonstrates that the Federal
contracting community, including small businesses, is successfully
transitioning to greater use of electronic tools and their
associated efficiencies to conduct business.
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 (Pub. L. 104-13) applies because the
final rule contains information collection requirements; however, these
changes do not impose additional information collection requirements to
the paperwork burdens previously approved under the Office of
Management and Budget (OMB) Control Numbers 9000-0018, 9000-0024, 9000-
0025, 9000-0047, 9000-0090, 9000-0094, 9000-0097, 9000-0130, 9000-0134,
9000-0139, 9000-0150, and 9000-0155, since the rule requires offerors
to provide representations and certifications annually into a
centralized database, in lieu of providing the same information with
each solicitation.
List of Subjects in 48 CFR Parts 2, 4, 14, 15, and 52
Government procurement.
Dated: December 9, 2004.
Laura Auletta,
Director, Contract Policy Division.
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Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 4, 14, 15, and 52
as set forth below:
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1. The authority citation for 48 CFR parts 2, 4, 14, 15, and 52 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
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2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical
order, the definitions ``Business Partner Network (BPN)'' and ``Online
Representations and Certifications Application (ORCA)'' to read as
follows:
2.101 Definitions.
* * * * *
(b) * * *
Business Partner Network (BPN) means an integrated electronic
infrastructure the Government uses to manage (i.e., collect, validate,
access and maintain) the information it needs to transact business with
its contractors. The BPN is located at http://www.bpn.gov.
* * * * *
Online Representations and Certifications Application (ORCA) means
the primary Government repository for contractor submitted
representations and certifications required for the conduct of business
with the Government. ORCA is part of the Business Partner Network
(BPN). ORCA is located at http://orca.bpn.gov.
* * * * *
PART 4--ADMINISTRATIVE MATTERS
4.1101 Definition.
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3. Amend section 4.1101 by revising the section heading to read as set
forth above; and removing the definition ``Business Partner Network.''
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4. Add Subpart 4.12 to read as follows:
Subpart 4.12--Annual Representations and Certifications
Sec.
4.1200 Scope.
4.1201 Policy.
4.1202 Solicitation provision and contract clause.
4.1200 Scope.
This subpart prescribes policies and procedures for requiring
prospective contractors to submit Annual
[[Page 76346]]
Representations and Certifications via the Online Representations and
Certifications Application (ORCA), a part of the Business Partner
Network (BPN), to--
(a) Eliminate the administrative burden for contractors of
submitting the same information to various contracting offices; and
(b) Establish a common source for this information to procurement
offices across the Government.
4.1201 Policy.
(a) Prospective contractors shall complete electronic annual
representations and certifications at http://orca.bpn.gov in
conjunction with required registration in the Central Contractor
Registration (CCR) database (see FAR 4.1102).
(b) Prospective contractors shall update the representations and
certifications submitted to ORCA as necessary, but at least annually,
to ensure they are kept current, accurate, and complete. The
representations and certifications are effective until one year from
date of submission or update to ORCA.
4.1202 Solicitation provision and contract clause.
Except for commercial item solicitations issued under FAR Part 12,
insert in solicitations the provision at 52.204-8, Annual
Representations and Certifications. When the clause at 52.204-7,
Central Contractor Registration, is included in the solicitation, do
not include the following representations and certifications:
(a) 52.203-2, Certificate of Independent Price Determination.
(b) 52.203-11, Certification and Disclosure Regarding Payments to
Influence Certain Federal Transactions.
(c) 52.204-3, Taxpayer Identification.
(d) 52.204-5, Women-Owned Business (Other Than Small Business).
(e) 52.209-5, Certification Regarding Debarment, Suspension,
Proposed Debarment, and Other Responsibility Matters.
(f) 52.214-14, Place of Performance--Sealed Bidding.
(g) 52.215-6, Place of Performance.
(h) 52.219-1, Small Business Program Representations (Basic &
Alternate I).
(i) 52.219-2, Equal Low Bids.
(j) 52.219-19, Small Business Concern Representation for the Small
Business Competitiveness Demonstration Program.
(k) 52.219-21, Small Business Size Representation for Targeted
Industry Categories Under the Small Business Competitiveness
Demonstration Program.
(l) 52.219-22, Small Disadvantaged Business Status (Basic &
Alternate I).
(m) 52.222-18, Certification Regarding Knowledge of Child Labor for
Listed End Products.
(n) 52.222-22, Previous Contracts and Compliance Reports.
(o) 52.222-25, Affirmative Action Compliance.
(p) 52.222-38, Compliance with Veterans' Employment Reporting
Requirements.
(q) 52.222-48, Exemption from Application of Service Contract Act
Provisions for Contracts for Maintenance, Calibration, and/or Repair of
Certain Information Technology, Scientific and Medical and/or Office
and Business Equipment--Contractor Certification.
(r) 52.223-4, Recovered Material Certification.
(s) 52.223-9, Estimate of Percentage of Recovered Material Content
for EPA-Designated Products (Alternate I only).
(t) 52.223-13, Certification of Toxic Chemical Release Reporting.
(u) 52.225-2, Buy American Act Certificate.
(v) 52.225-4, Buy American Act--Free Trade Agreements--Israeli
Trade Act Certificate (Basic, Alternate I & II).
(w) 52.225-6, Trade Agreements Certificate.
(x) 52.226-2, Historically Black College or University and Minority
Institution Representation.
(y) 52.227-6, Royalty Information (Basic & Alternate I).
(z) 52.227-15, Representation of Limited Rights Data and Restricted
Computer Software.
PART 14--SEALED BIDDING
14.201-6 [Amended]
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5. Amend section 14.201-6 by removing and reserving paragraph (u).
14.213 [Removed]
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6. Remove section 14.213.
PART 15--CONTRACTING BY NEGOTIATION
15.209 [Amended]
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7. Amend section 15.209 by removing and reserving paragraph (g).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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8. Add section 52.204-8 to read as follows:
52.204-8 Annual Representations and Certifications.
As prescribed in 4.1202, insert the following provision:
ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2005)
(a)(1) If the clause at 52.204-7, Central Contractor Registration,
is included in this solicitation, paragraph (b) of this provision
applies.
(2) If the clause at 52.204-7 is not included in this solicitation,
and the offeror is currently registered in CCR, and has completed the
ORCA electronically, the offeror may choose to use paragraph (b) of
this provision instead of completing the corresponding individual
representations and certifications in the solicitation. The offeror
shall indicate which option applies by checking one of the following
boxes:
[lsqb] [rsqb] (i) Paragraph (b) applies.
[lsqb] [rsqb] (ii) Paragraph (b) does not apply and the offeror has
completed the individual representations and certifications in the
solicitation.
(b) The offeror has completed the annual representations and
certifications electronically via the Online Representations and
Certifications Application (ORCA) website at http://orca.bpn.gov. After
reviewing the ORCA database information, the offeror verifies by
submission of the offer that the representations and certifications
currently posted electronically have been entered or updated within the
last 12 months, are current, accurate, complete, and applicable to this
solicitation (including the business size standard applicable to the
NAICS code referenced for this solicitation), as of the date of this
offer and are incorporated in this offer by reference (see FAR 4.1201);
except for the changes identified below [offeror to insert changes,
identifying change by clause number, title, date]. These amended
representation(s) and/or certification(s) are also incorporated in this
offer and are current, accurate, and complete as of the date of this
offer.
------------------------------------------------------------------------
FAR Clause Title Date Change
------------------------------------------------------------------------
------ ---------- ------ ------
------------------------------------------------------------------------
Any changes provided by the offeror are applicable to this
solicitation only, and do not result in an update to the
representations and certifications posted on ORCA.
(End of Provision)
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9. Amend section 52.212-1 by revising the date of the provision and
paragraph (b)(8) to read as follows:
52.212-1 Instructions to Offerors--Commercial Items.
* * * * *
[[Page 76347]]
INSTRUCTIONS TO OFFERORS--COMMERCIAL ITEMS (JAN 2005)
* * * * *
(b) Submission of offers. * * *
(8) A completed copy of the representations and certifications at
FAR 52.212-3 (see FAR 52.212-3(j) for those representations and
certifications that the offeror shall complete electronically);
* * * * *
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10. Amend section 52.212-3 by revising the date of the provision;
adding an introductory paragraph and paragraph (j) to read as follows:
52.212-3 Offeror Representations and Certifications--Commercial
Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS (JAN 2005)
An offeror shall complete only paragraph (j) of this provision if
the offeror has completed the annual representations and certifications
electronically at http://orca.bpn.gov. If an offeror has not completed
the annual representations and certifications electronically at the
ORCA website, the offeror shall complete only paragraphs (b) through
(i) of this provision.
* * * * *
(j)(1) Annual Representations and Certifications. Any changes
provided by the offeror in paragraph (j) of this provision do not
automatically change the representations and certifications posted on
the Online Representations and Certifications Application (ORCA)
website.
(2) The offeror has completed the annual representations and
certifications electronically via the ORCA website at http://orca.bpn.gov. After reviewing the ORCA database information, the
offeror verifies by submission of this offer that the representations
and certifications currently posted electronically at FAR 52.212-3,
Offeror Representations and Certifications--Commercial Items, have been
entered or updated in the last 12 months, are current, accurate,
complete, and applicable to this solicitation (including the business
size standard applicable to the NAICS code referenced for this
solicitation), as of the date of this offer and are incorporated in
this offer by reference (see FAR 4.1201), except for paragraphs ------
------.
[Offeror to identify the applicable paragraphs at (b) through (i)
of this provision that the offeror has completed for the purposes of
this solicitation only, if any.
These amended representation(s) and/or certifica-tion(s) are also
incorporated in this offer and are current, accurate, and complete as
of the date of this offer.
Any changes provided by the offeror are applicable to this
solicitation only, and do not result in an update to the
representations and certifications posted on ORCA.]
(End of provision)
52.214-30 [Removed and Reserved]
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11. Remove and reserve section 52.214-30.
52.215-7 [Removed and Reserved]
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12. Remove and reserve section 52.215-7.
[FR Doc. 04-27633 Filed 12-17-04; 8:45 am]
BILLING CODE 6820-EP-S