[Federal Register Volume 73, Number 7 (Thursday, January 10, 2008)]
[Rules and Regulations]
[Pages 1822-1823]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E8-177]
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DEPARTMENT OF DEFENSE
Defense Acquisition Regulations System
48 CFR Parts 204, 212, and 252
RIN 0750-AF55
Defense Federal Acquisition Regulation Supplement; DoD
Representations and Certifications in the Online Representations and
Certifications Application (DFARS Case 2006-D032)
AGENCY: Defense Acquisition Regulations System, Department of Defense
(DoD).
ACTION: Final rule.
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SUMMARY: DoD has issued a final rule amending the Defense Federal
Acquisition Regulation Supplement (DFARS) to address the DFARS
provisions included in the Online Representations and Certifications
Application (ORCA). Use of ORCA eliminates the need for offerors to
repetitively submit the same information in response to Government
solicitations.
DATES: Effective Date: January 10, 2008.
FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt, Defense Acquisition
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense
Pentagon, Washington, DC 20301-3062. Telephone 703-602-0310; facsimile
703-602-7887. Please cite DFARS Case 2006-D032.
SUPPLEMENTARY INFORMATION:
A. Background
Subpart 4.12 of the Federal Acquisition Regulation (FAR) requires
prospective contractors to complete electronic annual representations
and certifications in ORCA, in conjunction with required registration
in the Central Contractor Registration database. FAR 4.1202 prescribes
use of the solicitation provision at 52.204-8, Annual Representations
and Certifications; provides a list of the FAR representations and
certifications in ORCA; and provides direction to the contracting
officer to exclude those representations and certifications from
solicitations that contain the clause at FAR 52.204-7, Central
Contractor Registration.
Similarly, this DFARS rule contains a list of the DFARS
representations and certifications in ORCA, and provides direction to
the contracting officer to exclude those representations and
certifications when using the provision at FAR 52.204-8. In addition,
the DFARS rule contains a substitute paragraph (c) for use with the
provision at FAR 52.204-8 to permit inclusion of information relating
to both the FAR and the DFARS. An offeror must include information in
paragraph (c) only if changes to the offeror's annual representations
and certifications apply to a particular solicitation.
DoD published a proposed rule at 72 FR 6515 on February 12, 2007.
DoD received comments from one respondent. A discussion of the comments
is provided below.
1. Comment: The respondent suggested administrative changes to the
organization of the contents of ORCA to enhance the certification
process.
DoD Response: The comment is outside the scope of this DFARS case.
However, the comment has been forwarded to the Government officials
responsible for managing the ORCA system.
2. Comment: The respondent recommended revision of the introductory
statement at 204.1202(2), from ``Do not include the following
representations and certifications'' to ``Do not include the following
representations and certifications in solicitations and contracts.''
DoD Response: DoD believes that the direction in the introductory
statement is clear as written, and that the additional phrase is
unnecessary.
3. Comment: The respondent recommended amendment of the second
sentence in the introductory text at 212.301(f) pertaining to
commercial item solicitations, to change ``may'' to ``shall'' with
regard to direction to the contracting officer to consider the
information in ORCA.
DoD Response: DoD has retained ``may'' in this sentence to provide
flexibility to the contracting officer in the review of representations
and certifications.
This rule was not subject to Office of Management and Budget review
under Executive Order 12866, dated September 30, 1993.
B. Regulatory Flexibility Act
DoD has prepared a final regulatory flexibility analysis consistent
with 5 U.S.C. 604. A copy of the analysis may be obtained from the
point of contact specified herein. The analysis is summarized as
follows:
The objective of the rule is to maintain a centralized location for
the representation and certification information required by the DFARS,
thereby eliminating the need for offerors to submit the same
information to various DoD offices in response to individual
solicitations. The rule will apply to prospective DoD contractors
registered in the Central Contractor Registration database. FAR 4.1102
requires that prospective contractors be registered in the database
before the award of a contract or agreement, with certain exceptions.
Administrative personnel that have general knowledge of the
contractor's business should be able to enter the applicable
representation and certification information into ORCA. The rule is
expected to have a positive impact on small business concerns by
reducing administrative burdens.
C. Paperwork Reduction Act
The information collection requirements of the representations and
certifications addressed in this rule that require offerors to provide
specific fill-in information have been approved by
[[Page 1823]]
the Office of Management and Budget under Control Numbers 0704-0229,
0704-0245, and 0704-0259. This rule does not impose information
collection requirements beyond those already required by existing DFARS
representations and certifications.
List of Subjects in 48 CFR Parts 204, 212, and 252
Government procurement.
Michele P. Peterson,
Editor, Defense Acquisition Regulations System.
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Therefore, 48 CFR parts 204, 212, and 252 are amended as follows:
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1. The authority citation for 48 CFR parts 204, 212, and 252 continues
to read as follows:
Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.
PART 204--ADMINISTRATIVE MATTERS
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2. Subpart 204.12 is added to read as follows:
Subpart 204.12--Annual Representations and Certifications
204.1202 Solicitation provision and contract clause.
When using the provision at FAR 52.204-8, Annual Representations
and Certifications--
(1) Use the provision with 252.204-7007, Alternate A, Annual
Representations and Certifications; and
(2) Do not include the following representations and
certifications:
(i) 252.209-7005, Reserve Officer Training Corps and Military
Recruiting on Campus.
(ii) 252.212-7000, Offeror Representations and Certifications--
Commercial Items.
(iii) 252.216-7003, Economic Price Adjustment--Wage Rates or
Material Prices Controlled by a Foreign Government.
(iv) 252.225-7000, Buy American Act--Balance of Payments Program
Certificate.
(v) 252.225-7020, Trade Agreements Certificate.
(vi) 252.225-7031, Secondary Arab Boycott of Israel.
(vii) 252.225-7035, Buy American Act--Free Trade Agreements--
Balance of Payments Program Certificate.
(viii) 252.225-7042, Authorization to Perform.
(ix) 252.229-7003, Tax Exemptions (Italy).
(x) 252.229-7005, Tax Exemptions (Spain).
(xi) 252.239-7011, Special Construction and Equipment Charges.
(xii) 252.247-7022, Representation of Extent of Transportation by
Sea.
PART 212--ACQUISITION OF COMMERCIAL ITEMS
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3. Section 212.301 is amended by adding paragraph (f) introductory text
to read as follows:
212.301 Solicitation provisions and contract clauses for the
acquisition of commercial items.
(f) The following additional provisions and clauses apply to DoD
solicitations and contracts for the acquisition of commercial items. If
the offeror has completed the provisions listed in paragraph (f)(i) or
(ii) of this section electronically as part of its annual
representations and certifications at https://orca.bpn.gov, the
contracting officer may consider this information instead of requiring
the offeror to complete these provisions for a particular solicitation.
* * * * *
PART 252--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
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4. Section 252.204-7007 is added to read as follows:
252.204-7007 Alternate A, Annual Representations and Certifications.
Alternate A, Annual Representations and Certifications (JAN 2008)
As prescribed in 204.1202, substitute the following paragraph (c)
for paragraph (c) of the provision at FAR 52.204-8:
(c) The offeror has completed the annual representations and
certifications electronically via the Online Representations and
Certifications Application (ORCA) Web site at https://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.
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FAR/DFARS clause No. Title Date Change
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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.
[FR Doc. E8-177 Filed 1-9-08; 8:45 am]
BILLING CODE 5001-08-P