Federal Acquisition Regulation; Removal of Regulations Relating to Telegraphic Communication

AGENCY:

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

ACTION:

Proposed rule.

SUMMARY:

DoD, GSA, and NASA are proposing to amend the Federal Acquisition Regulation (FAR) to delete the use of “telegram”, “telegraph”, and related terms. The objective is to delete reference to obsolete technologies no longer in use and replace with references to electronic communications. In addition, conforming changes are proposed covering expedited notice of termination and change orders.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat Division at one of the addresses shown below on or before August 5, 2016 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments in response to FAR Case 2015-035 by any of the following methods:

• Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for “FAR Case 2015-035”. Select the link “Comment Now” that corresponds with FAR Case 2015-035. Follow the instructions provided at the “Comment Now” screen. Please include your name, company name (if any), and “FAR Case 2015-035” on your attached document.
• Mail: General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405.

Instructions: Please submit comments only and cite FAR Case 2015-035, in all correspondence related to this case. Comments received generally will be posted without change to http://www.regulations.gov,, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov,, approximately two to three days after submission to verify posting (except allow 30 days for posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT:

Ms. Zenaida Delgado, Procurement Analyst, at 202-969-7207, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202-501-4755. Please cite FAR case 2015-035.

SUPPLEMENTARY INFORMATION:

I. Background

DoD, GSA, and NASA are proposing to amend the FAR to delete the use of the terms “telegram”, “telegraph”, “telegraphic”, and related terminology.

The word “telegram” emerged shortly after the invention of the electrical telegraph in the 1840s. This terminology and way of communicating was incorporated into the first issue of the FAR, effective April 1, 1984. The emergence of electronic means of communication, starting with the facsimile machine, and then followed by email and mobile-phone text messages in the 1990s, resulted in the sparing use of telegraph services and use of telegrams. On this basis, the Councils are proposing to delete telegraphic services from the FAR and replace these terms with an option for electronic communications.

This case is consistent with the Office of Federal Procurement Policy (OFPP) Memorandum dated December 4, 2014 on transforming the marketplace, which describes ongoing actions to support the needs of a 21st century Government.

II. Discussion and Analysis

(1) This rulemaking proposes to delete all references to “telegraph” and “telegram” and replace these terms with an option for electronic communication.

(2) At FAR 49.601-1, a revised policy statement is added to allow the use of electronic means to notify the contractor of a termination for convenience. The objective is to provide an expeditious way to notify the contractor of the termination. This change is necessary because the abbreviated version of the notice of termination for the convenience of the Government is currently linked with the telegraphic notice procedure.

(3) At FAR 49.102, a conforming change is added to allow the use of electronic means to notify the contractor of a termination whether the termination is for convenience or default.

III. Executive Orders 12866 and 13563

Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This proposed rule is not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

DoD, GSA, and NASA do not expect this proposed rule to 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. However, an Initial Regulatory Flexibility Analysis (IRFA) has been prepared consistent with 5 U.S.C. 603. The analysis is summarized as follows:

The reason for this action is to delete the use of “telegram”, “telegraph”, and related terms. The Councils are proposing to replace these terms with an option for electronic communications. The objective is to delete reference to obsolete technologies no longer in use within the context of the FAR requirements. The proposed rule would apply to all entities, both small and other than small, performing as contractors or subcontractors on U.S. Government contracts. In 2014 there were about 350,000 active registrants in the System for Award Management (SAM). DoD, GSA, and NASA estimate approximately half of the registrants in SAM (175,000) are small entities that will receive a contract or subcontract in a given year. In 2014 small entities received 1,398,605 or about 9 percent of all actions in that year per the Federal Procurement Data System (FPDS). However, the small entities will not be materially affected by this rule, as the only change provided in this rule is recognition of current options for transmitting documents between the Government and contractors. It does not change the policy requiring the Government to notify contractors of a contract termination. The Government is still responsible to obtain evidence of receipt of termination from the contractor.

There are no reporting or recordkeeping requirements associated with this rule.

The rule does not duplicate, overlap, or conflict with any other Federal rules.

There were no significant alternatives identified that would meet the objective of the rule.

The Regulatory Secretariat Division has submitted a copy of the IRFA to the Chief Counsel for Advocacy of the Small Business Administration. A copy of the IRFA may be obtained from the Regulatory Secretariat Division. DoD, GSA, and NASA invite comments from small business concerns and other interested parties on the expected impact of this proposed rule on small entities.

DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the proposed rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-035), in correspondence.

V. Paperwork Reduction Act

The proposed rule does not contain any information collection requirements that require the approval of the Office of Management and Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Parts 5, 14, 19, 22, 25, 28, 43, 47, 49, 52, and 53

• Government procurement

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 5, 14, 19, 22, 25, 28, 43, 47, 49, 52, and 53 as set forth below:

1. The authority citation for 48 CFR parts 5, 14, 19, 22, 25, 28, 43, 47, 49, 52, and 53 continues to read as follows:

Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113.

PART 5—PUBLICIZING CONTRACT ACTIONS

2. Amend section 5.504 by removing from paragraph (d) “, telegrams,”.

PART 14—SEALED BIDDING

3. Amend section 4.201-6 by removing and reserving paragraph (g).

4. Remove and reserve section 14.202-2.

5. Amend section 14.208 by revising paragraph (b) to read as follows:

6. Amend section 14.301 by removing and reserving paragraph (b).

7. Revise section 14.302 to read as follows:

8. Amend section 14.303 by revising paragraph (a) to read as follows:

9. Amend section 14.407-3 by removing paragraph (g)(4), and redesignating paragraph (g)(5) as (g)(4).

10. Amend section 14.408-1 by removing from paragraph (d)(2) “telegrams or electronic transmissions,” and adding “electronic communications,” in its place.

PART 19—SMALL BUSINESS PROGRAMS

11. Amend section 19.302 by removing from paragraph (d)(1)(ii) “telegram,”.

PART 22—APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITIONS

12. Amend section 22.1003-3 by removing from paragraph (d) “telegraph,”.

PART 25—FOREIGN ACQUISITION

13. Amend section 25.401 in the table, by removing from paragraph (b)(2)(iii) the words “telegraph services,”, and removing “ 47 U.S.C. 153(20))” and adding “47 U.S.C. 153(24))” in its place.

PART 28—BONDS AND INSURANCE

14. Amend section 28.101-4 by removing paragraph (c)(6), and redesignating paragraphs (c)(7) through (9) as paragraphs (c)(6) through (8), respectively.

PART 43—CONTRACT MODIFICATIONS

15. Amend section 43.201 by revising paragraph (c) to read as follows:

PART 47—TRANSPORTATION

16. Amend section 47.305-10 by revising paragraph (c) to read as follows:

PART 49—TERMINATION OF CONTRACTS

17. Amend section 49.102, paragraph (a), by revising the first and second sentences of the introductory text, to read as follows:

18. Amend section 49.601-1 by—

a. Revising the section heading; and adding an introductory paragraph;

b. Removing from paragraph (a) “telegraphic”, “[insert “immediately” ”, and “Telegraph”, and adding “electronic”, “[insert “immediately”, (today's date)”, and “Provide by electronic means” in their places, respectively; and

c. Removing from paragraph (b) “telegraphic”, “[insert “immediately” ”, and “Telegraph”, and adding “electronic”, “[insert “immediately”, (today's date)”, and “Provide by electronic means” in their places, respectively.

The revision and addition reads as follows:

19. Amend section 49.601-2 by—

a. Revising the third and fourth sentences of the introductory paragraph;

b. Removing from paragraph (a) “telegram” and adding “electronic notice” in their places, two times; and

c. Revising the introductory paragraph of the Alternate notice.

The revisions read as follows:

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

20. Amend section 52.214-3 by—

a. Revising the date of the provision; and

b. Revising paragraph (b).

The revisions read as follows:

21. Amend section 52.214-5 by—

a. Revising the date of the provision;

b. Removing paragraph (c); and

c. Redesignating paragraphs (d) and (e), as paragraphs (c) and (d), respectively.

The revision reads as follows:

22. Remove and reserve section 52.214-13.

PART 53—FORMS

23. Amend section 53.213 by removing from paragraph (b) “( 10/83)” and adding “(Date)” in its place.

24. Amend section 53.215-1 by removing from paragraph (b) “( 10/83)” and adding “(Date)” in its place.

25. Amend section 53.243 introductory text by removing “( 10/83)” and adding “(Date)” in its place.

26. Revise section 53.301-30 to read as follows: