Federal Acquisition Regulation; Annual Representations and Certifications - NAICS Code/Size

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 modify the provision regarding Annual Representations and Certifications to include a section whereby the contracting officer can insert the appropriate North American Industry Classification System (NAICS) code and small business size standard for the procurement. Its exclusion in the original drafting of the subject provision was an oversight. When the FAR provision is included in a solicitation, the provision regarding Small Business Program Representations, where this information is normally placed, is not included. Without this change, there is no standard way in which the NAICS code and small business size standard can be communicated to the vendor.

DATES:

Effective Date: January 3, 2006.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Gerald Zaffos at (202) 208-6091. The TTY Federal Relay Number for further information is 1-800-877-8973. Please cite FAC 2005-07, FAR case 2005-006. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION:

A. Background

The final rule amends the Federal Acquisition Regulation by modifying the provision at FAR 52.204-8 to include a new paragraph (a) that replicates the same paragraph of the provision at FAR 52.219-1(a).

Federal Acquisition Circular (FAC) 2001-026 made effective the use of the provision at FAR 52.204-8 for most procurements. The prescription for its use also directs that the provision at FAR 52.219-1(a) not be included in solicitations, as it is now included in the Online Representations and Certifications Application (ORCA). The FAR provision at 52.219-1(a), when it is included in solicitations, is the place wherein the contracting officer includes the NAICS code and small business size standard applicable to the procurement. There needs to be a similar paragraph available in FAR 52.204-8, the exclusion of which was an oversight in FAC 2001-026.

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 does not apply to this rule. This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98-577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR Part 52 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 2005-07, FAR case 2005-006), 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 Part 52

• Government procurement

Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1. The authority citation for 48 CFR part 52 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).

2. Amend section 52.204-8 by—

a. Revising the date of the provision;

b. Redesignating paragraphs (a) and (b) as paragraphs (b) and (c), respectively;

c. Adding a new paragraph (a); and

d. Removing from newly designated paragraph (b)(1) and the introductory text of paragraph (b)(2) “paragraph (b)” and adding “paragraph (c)” in its place; and removing from newly redesignated (b)(2)(i) and (b)(2)(ii) “Paragraph (b)” and adding “Paragraph (c)” in its place.

The revised and added text reads as follows:

ANNUAL REPRESENTATIONS AND CERTIFICATIONS (JAN 2006)

(a)(1) The North American Industry Classification System (NAICS) code for this acquisition is _______ [insert NAICS code].

(2) The small business size standard is _______ [insert size standard].

(3) The small business size standard for a concern which submits an offer in its own name, other than on a construction or service contract, but which proposes to furnish a product which it did not itself manufacture, is 500 employees.