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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: January 25, 2002

SUBJECT: National Aeronautics and Space Administration Federal Acquisition Regulation (FAR) Supplement (NFS); Non-Commercial Representations and Certifications and Evaluation Provisions for Use in Simplified Acquisitions

SOURCE: Federal Register, January 25, 2002, Vol. 67, No. 17, page 3669

AGENCIES: National Aeronautics and Space Administration (NASA)

ACTION: Proposed Rule

SYNOPSIS: NASA is proposing to amend the NFS to establish a consolidated set of representations and certifications and an evaluation provision for the acquisition of non-commercial items less than or equal to the $100,000 simplified acquisition threshold.

DATES: Comments must be submitted on or before March 26, 2002.

ADDRESSES: Submit written comments to Celeste Dalton, NASA Headquarters, Office of Procurement, Contract Management Division (Code HK), Washington, DC 20546, or by e-mail to cdalton@hq.nasa.gov.

FOR FURTHER INFORMATION CONTACT: Celeste Dalton, Code HK, 202-358-1645, e-mail: cdalton@hq.nasa.gov.

SUPPLEMENTAL INFORMATION: FAR 52.212-3, Offeror Representations and Certifications -- Commercial Items, consists of representations and certifications that apply to commercial acquisitions. However, there is no equivalent provision for non-commercial items. NASA is proposing to establish an equivalent provision for use with NASA's non-commercial acquisitions that are less than or equal to the $100,000 simplified acquisition threshold so that all appropriate representations and certifications are consistently used. This proposed provision, NFS 1852.213-70, Offeror Representations and Certifications -- Other Than Commercial Items, is almost an exact duplicate of FAR 52.212-3.

In addition, NASA proposes to add NFS 1852.213-71, Evaluation -- Other Than Commercial Items, for use in non-commercial acquisitions within the simplified acquisition threshold when selection will be based on other than technically acceptable low offer. The introductory material to the proposed rule states "this evaluation provision will provide a consistent notice to offerors of how evaluations will be conducted." The text of proposed NFS 1852.213-71 practically duplicates that in FAR 52.212-2, Evaluation -- Commercial Items.

EDITOR'S NOTE: While it might be nice to have a single provision with all the representations and certifications applicable to non-commercial acquisitions less than or equal to the $100,000 simplified acquisition threshold, the entire text of NFS 1852.213-70 is already contained in various FAR provisions that are required by the FAR to be included in solicitations for non-commercial items less than or equal to the simplified acquisition threshold. Adding NFS 1852.213-70 would be a violation of FAR 1.302, Limitations, which states:

"Agency acquisition regulations shall be limited to --

      "(a) Those necessary to implement FAR policies and procedures within the agency; and

      "(b) Additional policies, procedures, solicitation provisions, or contract clauses that supplement the FAR to satisfy the specific needs of the agency."

NFS 1852.213-70 is not "necessary to implement FAR policies and procedures", or required to "supplement the FAR". If a single provision was considered necessary by the FAR Council, it has had since 1995 to add it -- FAR 52.212-2 and FAR 52.212-3 were added in 1995 with FAR Part 12, Acquisition of Commercial Items. The government's acquisition regulations, which were supposed to be collected into a single publication -- the FAR, has already become diffuse by all the "streamlining initiatives" that various agencies are conducting with their own published and unpublished rules. For NASA to start republishing parts of the FAR in its own FAR supplement because of some perceived deficiency that has gone unnoticed for years would create a terrible precedent that, if adopted by other agencies, would further diminish the FAR as the "single point-of-entry" for federal contracting rules and procedures.

FOR FURTHER INFORMATION CONTACT: Panoptic Enterprises at 703-451-5953 or by e-mail to Panoptic@FedGovContracts.com.

Copyright 2002 by Panoptic Enterprises. All Rights Reserved.

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