Federal Acquisition Regulation; Quality Assurance Nonconformances

DEPARTMENT OF DEFENSE

48 CFR Part 46

[FAR Case 92-27]

Federal Acquisition Regulation; Quality Assurance Nonconformances

AGENCIES: Department of Defense (DOD), General Services Administration

(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense

Acquisition Regulations Council are proposing to amend the Federal

Acquisition Regulation (FAR) concerning quality assurance to include

definitions of the terms ``critical nonconformance,'' ``major

nonconformance,'' and ``minor nonconformance,'' and make other

conforming amendments as a result of recommendations made by the

Department of Defense Inspector General.

This regulatory action was not subject to Office of Management and

Budget review pursuant to Executive Order 12866 dated September 30,

1993.

DATES: Comments should be submitted at the address shown below on or

before May 27, 1994, to be considered in the formulation of a final

rule.

ADDRESSES: Interested parties should submit written comments to:

General Services Administration, FAR Secretariat (VRS), 18th & F

Streets NW., Room 4037, Washington, DC 20405.

Please cite FAR case 92-27 in all correspondence related to this

case.

FOR FURTHER INFORMATION CONTACT:

Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For

general information, contact the FAR Secretariat, Room 4037, GS

Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 92-

27.

SUPPLEMENTARY INFORMATION:

A. Background

On September 27, 1990, the Department of Defense Inspector General

issued Audit Report 90-113, Nonconforming Products Procured by the

Defense Industrial Supply Center, which included recommendations that

the DOD should use standardized terminology for a nonconformance, and

that the DOD definition of a nonconformance should be in agreement with

the FAR. Therefore, it is proposed that FAR Part 46 be amended to

include uniform definitions for use by all acquiring agencies.

B. Regulatory Flexibility Act

The proposed rule is not expected 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., because the

revisions merely revise and standardize definitions of terms. An

Initial Regulatory Flexibility Analysis has, therefore, not been

performed. Comments from small entities concerning the affected FAR

subpart will be considered in accordance with section 610 of the Act.

Such comments must be submitted separately and should cite 5 U.S.C.

601, et seq. (FAR case 92-27), in correspondence.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed

changes to the FAR do not impose recordkeeping or information

collection requirements, or collections of information from offerors,

contractors, or members of the public which 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 46

Government procurement.

Dated: March 18, 1994.

Albert A. Vicchiolla,

Director, Office of Federal Acquisition Policy.

Therefore, it is proposed that 48 CFR part 46 be amended as set

forth below:

1. The authority citation for 48 CFR part 46 continues to read as

follows:

PART 46--QUALITY ASSURANCE

Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42

U.S.C. 2473(c).

2. Section 46.101 is amended by adding in alphabetical order the

definitions ``Critical nonconformance'', ``Major nonconformance'', and

``Minor nonconformance'' to read as follows:

46.101 Definitions.

* * * * *

Critical nonconformance means a nonconformance that judgement and

experience indicate is likely to result in hazardous or unsafe

conditions for individuals using, maintaining, or depending upon the

supplies or services; or is likely to prevent performance of a vital

agency mission.

* * * * *

Major nonconformance means a nonconformance, other than critical,

that is likely to result in failure, or to materially reduce the

usability of the supplies or services for their intended purpose.

Minor nonconformance means a nonconformance that is not likely to

materially reduce the usability of the supplies or services for their

intended purpose, or is a departure from established standards having

little bearing on the effective use or operation of the supplies or

services.

* * * * *

3. Section 46.103 is amended at the end of paragraph (c) by

removing ``and''; in paragraph (d) by removing the period and inserting

``; and''; and by adding paragraph (e) to read as follows:

46.103 Contracting office responsibilities.

* * * * *

(e) Ensuring that nonconformances are identified and considered

when determining the acceptability of supplies or services which do not

meet contract requirements.

4. Section 46.407 is amended by revising the first sentence in

paragraph (c)(1) introductory text; revising paragraph (d); and

revising the first sentence in paragraph (f) to read as follows:

46.407 Nonconforming supplies or services.

* * * * *

(c)(1) In situations not covered by paragraph (b) of this section,

the contracting officer ordinarily shall reject supplies or services

when the nonconformance is critical or major. * * *

* * * * *

(d) If the nonconformance is minor, the cognizant contract

administration office may make the determination to accept or reject,

except where this authority is withheld by the contracting office of

the contracting activity. To assist in making this determination, the

contract administration office may establish a joint contractor/

contract administrative office review group. Acceptance of supplies and

services with critical or major nonconformances is outside the scope of

the review group.

* * * * *

(f) Each contract under which supplies or services with critical or

major nonconformances are accepted, as authorized in paragraph (c) of

this section, shall be modified to provide for an equitable price

reduction or other consideration. * * *

* * * * *

[FR Doc. 94-6893 Filed 3-25-94; 8:45 am]

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