Agriculture Acquisition Regulation; Revision

DEPARTMENT OF AGRICULTURE

48 CFR Parts 401 Through 453

RIN 0599-AA00

Agriculture Acquisition Regulation; Revision

AGENCY: Procurement and Property Management, Department of Agriculture.

ACTION: Notice of proposed rulemaking.

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SUMMARY: This notice invites written comments on a proposed amendment

to the Agriculture Acquisition Regulation (AGAR). We are revising the

AGAR to reflect changes in acquisition law and regulations since the

AGAR's last major revision in 1988, to update organizational references

throughout the AGAR, and to streamline the AGAR as part of the

President's Regulatory Reform Initiative.

DATES: Comments must be submitted on or before September 16, 1996.

ADDRESSES: Requests for a copy of the proposed rule should be sent to

U.S. Department of Agriculture. Procurement and Property Management,

Procurement Policy Division, STOP 9303, 1400 Independence Avenue SW.,

Washington, DC 20250-9303. The Procurement Policy Division has also

posted a copy of the proposed rule on the Internet for review at

WWW.USDA.GOV/DA/PROCURE/AGAR.HTM. Submit written comments to the

Procurement Policy Division at the mailing address listed above,

through the Internet at [email protected] (alternate:

[email protected]), or via fax at (202) 720-8972.

FOR FURTHER INFORMATION CONTACT:

Joseph J. Daragan, U.S. Department of Agriculture, Procurement and

Property Management, STOP 9303, 1400 Independence Avenue SW.,

Washington, DC 20250-9303, (202) 720-5729.

SUPPLEMENTARY INFORMATION:

I. Background

II. Procedural Requirements

A. Executive Order 12866.

B. Regulatory Flexibility Act.

C. Paperwork Reduction Act.

III. Public Comments

I. Background

The AGAR implements the Federal Acquisition Regulation (FAR), where

further implementation is needed, and supplements the FAR when coverage

is needed for subject matter not covered by the FAR. The AGAR is being

revised as part of the National Performance Review (NPR) program to

eliminate necessary

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regulations and improve those that remain in force.

As an initial step in the NPR regulatory review initiative, the

Department of Agriculture (USDA) identified parts of the AGAR which

required updating or streamlining. USDA's review indicated that almost

all parts required revision. Accordingly, USDA has reviewed and made

revisions to substantially all parts of the AGAR. In an Advance Notice

of Proposed Rulemaking (61 FR 7456, February 28, 1996). USDA sought

comments and suggestions from the public concerning what changes should

be made to the AGAR. One comment was received from a USDA field office.

The commenter suggested a change to AGAR part 416; this comment has

been implemented.

The principal effects of the proposed rule are as follows:

(a) References to the Director, Office of Operations, in the AGAR

are revised to refer to the Senior Procurement Executive (SPE) to

reflect the reorganization of USDA's Departmental Administration.

(b) To the extent permitted by the FAR, responsibilities have been

delegated to the lowest appropriate organizational level.

(c) Section 401.103-70 is redesignated section 401.370 and revised

to allow promulgation of interim policies and procedures outside the

AGAR, subject to the policies of FAR subpart 1.3.

(d) Section 401.371 is added to establish AGAR Advisories to

communicate guidance on acquisition issues to establish internal

acquisition policies and procedures on an interim basis.

(e) Subpart 403.1 is added to address standards of conduct and

procurement integrity issues.

(f) Subpart 405.3 is added to establish procedures for announcement

of contract awards over $1 million.

(g) Subpart 405.5 is revised to clarify procedures for publication

of paid advertisements.

(h) Subpart 406.2 is added to designate the SPE as the individual

authorized to make the FAR 6.202 determination.

(i) Section 407.305 and the accompanying clauses at 452.207-70 and

452.207-71 are removed since existing FAR coverage is deemed adequate.

(j) Subpart 407.5 is added to implement FAR subpart 7.5, Inherently

Governmental Functions.

(k) 408.7 is added to create an advocacy program for the

acquisition of products and services from the non-profit agencies

employing people who are blind or severely disabled.

(l) Subpart 408.11 is added to establish a preference for recovered

materials in the leasing vehicles.

(m) Section 409.504 and the accompanying clause at 452.209-70 are

removed as superfluous.

(n) Part 410 is redesignated as part 411 and is revised to

eliminate unnecessary text and to authorize the Head of the Contracting

Activity (HCA) to make market acceptance determinations in accordance

with FAR 11.103(a).

(o) Subpart 412.1 is redesignated subpart 411.4 and is amended to

remove prescriptions for clauses at 452.212-70 and 452.212-71. The

corresponding clauses at 452.212-70 and 452.212-71 are also removed.

(p) Part 412 is revised to provide coverage for the acquisition of

commercial items. Subpart 412.3 is added to designate the HCA as the

individual authorized to approve requests to tailor clauses and terms

and conditions for commercial items in accordance with FAR 12.302(c).

(q) Section 413.501 is added to permit issuance of purchase orders

on other than a fixed price basis if authorized by contracting activity

written procedures.

(r) Section 413.505-3 is added to state that use of Standard Form

44 is not authorized within USDA, and section 413.505-70 is removed

since form AD-744, Purchase Order-Invoice-Voucher, is no longer used by

USDA.

(s) Section 414.407-3 is revised to delegate the authority to make

mistake in bid determinations to HCA's.

(t) Section 415.407 is amended to remove prescriptions for

solicitation provisions at 452.215-73, 452.215-74, and 452.215-75, and

the corresponding provisions are removed, to eliminate collection of

unnecessary information from offerors and to provide flexibility to

tailor requests for proposal submissions.

(u) Section 415.612 is amended to remove the requirement that the

HCA must be the formal source selection official for negotiated

contracts over $500,000.

(v) Section 415.902 is revised to authorize use of another Federal

Agency's formalized structured approach for establishing profit or fee

objectives.

(w) Section 416.000 is added to allow the use of contract types

described in FAR part 16 for simplified acquisitions.

(x) Subpart 416.3, section 416.403, and section 416.404-1 are

removed because FAR coverage is deemed adequate.

(y) Section 416.404-2 is amended to remove material adequately

covered by the FAR.

(z) Section 417.204 is added to authorize HCA's to approve option

contracts exceeding 5 years in accordance with FAR 17.204(e).

(aa) Section 417.204 is amended to remove prescriptions for clauses

at 452.217-74, 452.217-75, 452.217-76, 452.217-77, 452.217-78, and

452.217-79, since they have been superseded by FAR clauses 52.217-6,

52.217-7, and 52.217-9. The referenced AGAR clauses are likewise

removed from part 452.

(ab) Subpart 417.4 is removed since USDA does not use the leader

company contracting method.

(ac) Subpart 417.6 is removed since USDA does not have the

requisite statutory authority to enter into management and operating

contracts.

(ad) Section 422.302 is added to provide procedures for review of

liquidated damages assessed under section 104(c) of the Contract Work

Hours and Safety Standards Act.

(ae) Subpart 422.70 is added to provide guidance for compliance

with E.O. 12989, Economy and Efficiency in Government Procurement

Through Compliance with Certain Immigration and Naturalization Act

Provisions, February 13, 1996.

(af) Part 423 is revised to update the part and to address changes

in environmental and safety law and in the FAR.

(ag) Subpart 423.4 is added to incorporate USDA's Acquisition,

Recycling, and Waste Prevention Program, initiated to comply with 42

U.S.C. 6901, et seq., and with E.O. 12873, Federal Acquisition,

Recycling, and Waste Prevention, October 20, 1993.

(ah) Subpart 430.2 is revised to update procedures for waivers of

the Cost Accounting Standards and of Disclosure Statements.

(ai) Section 432.006 is added to provide procedures for reduction

or suspension of contract payments upon finding of fraud.

(aj) Subparts 432.1 and 432.2 are added to supplement FAR coverage

on financing for commercial and non-commercial items.

(ak) Subpart 432.6 is added to implement the FAR coverage on

contract debts.

(al) Subpart 432.7 is added to address USDA specific funding

issues.

(am) Part 433 is modified to provide an alternate forum for agency

protests.

(an) Part 434 is amended to remove superfluous material and to

identify the official(s) authorized to make the decisions under FAR

34.005-6.

(ao) Section 436.602-1 is amended to remove obsolete selection

criteria.

(ap) Section 437.110 is amended to remove the prescription for the

clause at

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452.237-72, and the corresponding clause, since FAR 52.237-1 may be

used instead of this clause.

(aq) Section 442.704 and the clause at 452.242-70 are removed,

since the FAR provides identical coverage.

(ar) Section 442.1502 is added to delegate to HCA's responsibility

for establishing past performance evaluation procedures and systems as

required by FAR 42.1502 and 42.1503.

(at) Section 449.501 is added to delegate authority to HCA's to

approve the use of special purpose termination clauses pursuant to FAR

49.501.

II. Procedural Requirements

A. Executive Order 12866

A work plan was prepared for this regulation and submitted to the

Office of Management and Budget pursuant to Executive Order 12866. The

proposed rule has been determined to be not significant for the

purposes of Executive Order 12866. Therefore, the proposed rule has not

been reviewed by the Office of Management and Budget.

B. Review Under the Regulatory Flexibility Act

The proposed rule was reviewed under the Regulatory Flexibility

Act, 5 U.S.C. 601-611, which requires preparation of a regulatory

flexibility analysis for any rule which is likely to have significant

economic impact on a substantial number of small entities. The AGAR is

issued to implement or supplement the FAR, and does not materially add

to the impact of the FAR regulations it implements or supplements. USDA

certifies that this proposed rule will not have a significant economic

effect on a substantial number of small entities, and, therefore, no

regulatory flexibility analysis has been prepared. However, comments

from small entities concerning parts affected by the proposed rule will

be considered. Such comments must be submitted separately and cite 5

U.S.C. 609 (AGAR Revision) in correspondence.

C. Paperwork Reduction Act

Information collection and recordkeeping required by the AGAR have

been approved by the OMB. OMB control numbers 0505-0010, 0505-0011,

0505-0013, 0505-0014, 0505-0015, and 0505-0016 apply to the AGAR. No

additional information collection or recordkeeping requirements are

imposed on the public by this proposed rulemaking. Accordingly no OMB

clearance is required by section 350(h) of the Paperwork Reduction Act,

44 U.S.C. 3501, et. seq., or OMB's implementing regulation at 5 CFR

Part 1320.

III. Public Comments

Interested persons are invited to participate in this rulemaking by

submitting views and comments with respect to the proposed AGAR

revision set out in this notice. All written comments will be carefully

assessed and fully considered prior to publication of the final rule.

List of Subjects in 48 CFR Parts 401 Through 453

Government contracts, Government procurement.

For the reasons set out in this preamble, the Department proposes

to amend Chapter 4 of Title 48 of the Code of Federal Regulations.

Copies of the proposed rule may be obtained from the addresses set

forth above.

W.R. Ashworth,

Director, Procurement and Property Management.

[FR Doc. 96-17920 Filed 7-15-96; 8:45 am]

BILLING CODE 3410-XE-M