[Federal Register Volume 71, Number 75 (Wednesday, April 19, 2006)]
[Rules and Regulations]
[Pages 20295-20298]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 06-3678]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 2, 5, and 7
[FAC 2005-09; FAR Case 2004-007; Item I; Docket FAR-2006-0020]
RIN 9000-AK08
Federal Acquisition Regulation; FAR Case 2004-007, Federal
Technical Data Solution (FedTeDS)
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 on a final rule
amending the Federal Acquisition Regulation (FAR) to require
contracting officers to use the Federal Technical Data Solution
(FedTeDS) for electronic posting of solicitation-related materials that
require control over availability or distribution unless certain
exceptions apply.
DATES: Effective Date: May 19, 2006.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, at (202) 501-4755 for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Gerald Zaffos, Procurement Analyst, at (202) 208-
6091. Please cite FAC 2005-09, FAR case 2004-007.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 69 FR 63436 on November 1, 2004. The 60-day comment period
for the proposed rule ended January 3, 2005. Sixteen comments were
received from seven commenters. Some of the comments merely agreed with
the concept of FedTeDS, others pointed out areas of concern. The
substantive comments are discussed below.
Public Comments
1. Comment: FedTeDS will reduce competition on typical large
construction projects. By restricting document access to those who are
registered in CCR and have an access code, the use of FedTeDS will
result in
[[Page 20296]]
reduced interest in the project and reduced competition.
Council's response: In keeping with the President's Management
Agenda and the eGov initiative, making FedTeDS use mandatory for
solicitation-related documents that require limited availability or
distribution will better secure that information and eliminate the use
of duplicative and less secure document hosting systems. There has been
no noticeable reduction in interest or competition where vendors have
been required to register and use FedTeDS to access solicitation
information. FedTeDS provides tools for vendors to customize their
environment, track information, and reduce unnecessary paper handling.
2. Comment: The construction industry standard is for plans and
specifications to be viewable in plan rooms and on the internet.
Others, such as plan rooms and printing companies, are likely to
distribute FedTeDS materials publicly without the Government's
knowledge.
Council's response: Those who access and download FedTeDS
information have an obligation to assure continued control over that
information. The FedTeDS program staff is working with plan rooms to
explore ways that the security provided by FedTeDS can be applied in a
similar manner by plan rooms wishing to distribute the information
outside FedTeDS.
3. Comment: The use of FedTeDS should be optional, not mandatory.
Optional use will allow agencies to maintain and develop similar
websites. Agencies should be free to use or develop any mechanism they
choose to secure solicitation related information.
Council's response: As part of the Integrated Acquisition
Environment, the objective of FedTeDS is to carry out the President's
Management Agenda and the eGov initiative to eliminate duplicative and
redundant systems. Agencies should not be compelled to choose among
multiple mechanisms for securing solicitation-related data. Vendors and
other interested parties should not be compelled to understand and
adapt to an array of mechanisms and Web site addresses used to secure
solicitation-related information. FedTeDS provides a single, secure
system and Web site for Governmentwide use in controlling access and
distribution of solicitation-related documents.
4. Comment: FedTeDS functionality will be included in the
Governmentwide Point of Entry (GPE) FedBizOpps system. This will
eliminate the need for FedTeDS as a separate system.
Council's response: The inclusion of FedTeDS functionality in
FedBizOpps is an optional requirement in the solicitation for
replacement of FedBizOpps. Once the contract has been awarded, the
expectations, plans and anticipated deliverable dates for inclusion of
FedTeDS functionality in FedBizOpps will be known. Until the new
FedBizOpps system and its FedTeDS-like functionality become
operational, FedTeDS remains a proven and useful system for
Governmentwide use.
5. Comment: The FAR amendment to mandate the use of FedTeDS will
limit the Government's ability to enhance systems and leverage new
technologies.
Council's response: The comment is too vague to adequately address
the real concern.
6. Comment: The language proposed for FAR 5.102 is confusing and
redundant. The language should be changed to be more clear and concise.
Council's response: We concur that the proposed language for FAR
5.102 is confusing and contains redundancies. We have revised the
applicable language accordingly.
7. Comment: The amendment should contain a definition for
``sensitive but unclassified information.'' This term is in wide use
among agencies and may be useful in determining what information should
be posted on FedTeDS.
Council's response: The industry terminology for ``sensitive but
unclassified information'' is changing to unclassified, sensitive
information. This term is consistent with the Computer Security Act of
1987, where ``sensitive information'' refers to any information, the
loss, misuse, or unauthorized access to or modification of which could
adversely affect the national interest or the conduct of Federal
programs, but which has not been specifically authorized under criteria
established by an Executive order or an Act of Congress to be kept
secret in the interest of national defense or foreign policy.
Furthermore, the Act states that the head of a Federal agency may
employ standards for the cost effective security and privacy of
sensitive information in a Federal computer system within or under the
supervision of that agency. FedTeds has ``Sensitive but Unclassified''
compliance requirements as part of accessing any information in the
system. The Councils will work with program officials to have the
terminology reviewed and updated as appropriate.
8.Comment: The Governmentwide Point of Entry (GPE), not FedTeDS,
should be used to distribute all solicitation related materials.
Council's response: Currently, the GPE does not contain the
functionality needed to control the availability or distribution of
solicitation-related documents. Until the GPE is upgraded to provide
the required functionality, FedTeDS will be used to provide the
required functionality.
9. Comment: Use of FedTeDS should be made mandatory, not optional.
Mandatory use will reduce the need for agencies to maintain similar
websites.
Council's response: We agree. The use of FedTeDS is being made
mandatory with a few necessary exceptions. Those exceptions are the
same used to advertise and distribute solicitations on the GPE.
10. Comment: The proposed amendment does not cover vendors that are
exempt from registering in CCR, such as foreign vendors who may be
interested in work to be performed outside the U.S.
Council's Response: FedTeDS requires all vendors to be registered
in CCR and FedTeDS in order to gain access to FedTeDS. Vendors who are
unable to register, or who are exempt from registration in CCR, may
contact the contracting officer directly to receive the solicitation-
related documents.
11. Comment: Are the exceptions at FAR 5.102 meant to address all
of the exceptions to CCR registration found at FAR 4.1102?
Council's response: No. FAR 4.1102 addresses exceptions to the
requirement for prospective vendors to register in CCR. Vendors who are
excepted from CCR registration under FAR 4.1102 may contact the
contracting officer directly to obtain the solicitation-related
documents posted on FedTeDS. The FAR 5.102 exceptions address the
requirement to post on FedTeDS solicitation-related documents that
require control over access and distribution as opposed to posting
those documents on the GPE.
12. Comment: The use of the MPIN (unique CCR vendor identification)
for FedTeDS access poses a security risk for vendors. A company may not
wish to share their MPIN with individual employees because the MPIN is
also used to access competitively sensitive past performance
information contained in the Past Performance Information Retrieval
System (PPIRS) or other Government systems that may require the MPIN
for access. While individual employees may be assigned individual
FedTeDS accounts, those individuals may then distribute or otherwise
handle FedTeDS information in a manner that is inconsistent with
company policy.
Council's response: Under both CCR and FedTeDS, only the company
point
[[Page 20297]]
of contact knows the MPIN. The point of contact uses the MPIN to
register one or more employees in FedTeDS. Registration consists of
identifying each employee designated to have FedTeDS access and
assigning them a unique user identification and password for use in
accessing FedTeDS. The employees then use their assigned user
identification and password to log into FedTeDS. Thus, only the company
point of contact has access to the MPIN.
13. Comment: Contracting officers may use FedTeDS registration
inappropriately. In at least one case, oral proposal presenters were
required to be registered in FedTeDS in order to be assigned an orals
appointment time. Some solicitations and materials are posted on
FedTeDS that are in no way sensitive.
Council's response: The Government may use its discretion in
determining what needs to be included in any procurement and posted on
FedBizOpps and in FedTeDS.
FedTeDS has proved to be a useful tool to control access and
distribution of solicitation-related documents where control is deemed
necessary by the Government. Training materials will be developed for
contracting officers to assure proper use of FedTeDS.
14. Comment: Granting employees access to FedTeDS using the MPIN
may inadvertently violate International Traffic in Arms (ITAR)
regulations by weakening central control over access and distribution
of export controlled materials.
Council's response: The Councils share the commenter's concern and
have revised the proposed rule to address the export control issue. As
indicated in our response to Comment 12, the company point of contact
does not have to disclose the company MPIN to other employees to
register them in FedTeDS. As indicated the company point of contact
controls which employees receive a user identification and password.
15. Comment: Once an individual is registered in FedTeDS, they
start getting notices of other solicitations that are only posted in
FedTeDS. These employees may download these solicitations and
distribute or otherwise mishandle them without the company knowing.
Council's response: This comment is similar to comment 12 and 14.
Anyone who gains access to FedTeDS information may then redistribute
that information in an uncontrolled manner. Control of employee
behavior and potential liability for employee actions is a matter for
internal company management and concern.
Therefore, this final rule amends FAR Parts 2, 5 and 7 to require
contracting officers to provide solicitation-related information that
requires limited availability or distribution to offerors
electronically via the FedTeDS system unless certain exceptions apply.
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 the rule does not
impose any costs on either small or large businesses; therefore, an
Initial Regulatory Flexibility Analysis has 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 Parts 2, 5, and 7 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. (FAC 2005-09, FAR case 2004-007), in
correspondence.
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, 5, and 7
Government procurement.
Dated: April 12, 2006.
Gerald Zaffos
Director, Contract Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 2, 5, and 7 as set
forth below:
0
1. The authority citation for 48 CFR parts 2, 5, and 7 continues 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--DEFINITION OF WORDS AND TERMS
0
2. Amend section 2.101 in paragraph (b)(2) by adding, in alphabetical
order the definition ``Federal Technical Data Solution (FedTeDS)'' to
read as follows:
2.101 Definitions.
* * * * *
(b) * * *
(2) * * *
Federal Technical Data Solution (FedTeDS) is a web application
integrated with the Governmentwide Point of Entry (GPE) and the Central
Contractor Registration (CCR) system for distribution of information
related to contract opportunities. It is designed to enhance controls
on the access and distribution of solicitation requirements or other
documents when controls are necessary according to agency procedures.
FedTeDS may be found on the Internet at https://www.fedteds.gov.
* * * * *
PART 5--PUBLICIZING CONTRACT ACTIONS
0
3. Amend section 5.102 by revising paragraph (a)(1); redesignating
paragraph (a)(4) as (a)(5), and adding new paragraph (a)(4); revising
newly redesignated (a)(5); and by removing from paragraph (b)
introductory text ``(a)(4)'' and adding ``(a)(5)'' in its place. The
revised text reads as follows:
5.102 Availability of solicitations.
(a)(1) Except as provided in paragraph (a)(5) of this section, the
contracting officer must make available through the GPE solicitations
synopsized through the GPE, including specifications, technical data,
and other pertinent information determined necessary by the contracting
officer. Transmissions to the GPE must be in accordance with the
interface description available via the Internet at http://www.fedbizopps.gov.
* * * * *
(4) When an agency determines that a solicitation contains
information that requires additional controls to monitor access and
distribution (e.g., technical data, specifications, maps, building
designs, schedules, etc.), the information shall be made available
through the Federal Technical Data Solution (FedTeDS) unless an
exception in paragraph (a)(5) of this section applies. When FedTeDS is
used, it shall be used in conjunction with the GPE to meet the synopsis
and advertising requirements of this part.
(5) The contracting officer need not make a solicitation available
through the GPE, or make other information available through FedTeDS as
required in paragraph (a)(4) of this section, when--
(i) Disclosure would compromise the national security (e.g., would
result in
[[Page 20298]]
disclosure of classified information, or information subject to export
controls) or create other security risks. The fact that access to
classified matter may be necessary to submit a proposal or perform the
contract does not, in itself, justify use of this exception;
(ii) The nature of the file (e.g., size, format) does not make it
cost-effective or practicable for contracting officers to provide
access to the solicitation through the GPE;
(iii) Agency procedures specify that the use of FedTeDS does not
provide sufficient controls for the information to be made available
and an alternative means of distributing the information is more
appropriate; or
(iv) The agency's senior procurement executive makes a written
determination that access through the GPE is not in the Government's
interest.
* * * * *
0
4. Amend section 5.207 by revising paragraph (c)(18) to read as
follows:
5.207 Preparation and transmittal of synopses.
* * * * *
(c) * * *
(18) 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, such as FedTeDS (https://www.fedteds.gov), from
which the technical data may be obtained.
* * * * *
PART 7--ACQUISITION PLANNING
0
5. Amend section 7.105 by revising paragraph (b)(15) to read as
follows:
7.105 Contents of written acquisition plans.
* * * * *
(b) * * *
(15) Government-furnished information. Discuss any Government
information, such as manuals, drawings, and test data, to be provided
to prospective offerors and contractors. Indicate which information
that requires additional controls to monitor access and distribution
(e.g., technical specifications, maps, building designs, schedules,
etc.), as determined by the agency, is to be posted via the Federal
Technical Data Solution (FedTeDS) (see 5.102(a)).
* * * * *
[FR Doc. 06-3678 Filed 4-18-06; 8:45 am]
BILLING CODE 6820-EP-S