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Panoptic Enterprises' FEDERAL CONTRACTS DISPATCH

DATE: January 30, 2003

SUBJECT: Federal Acquisition Regulation (FAR); Laws Inapplicable to Acquisitions of Commercially Available Off-the-Shelf Items

SOURCE: Federal Register, January 30, 2003, Vol. 68, No. 20, page 4873

AGENCIES: Department of Defense (DOD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA)

ACTION: Advanced Notice of Proposed Rulemaking (ANPR)

SYNOPSIS: The Federal Acquisition Regulatory Council is soliciting comments regarding the implementation of Section 4203 of the Federal Acquisition Reform Act (part of the Clinger-Cohen Act), which requires that the FAR list the provisions of law that are inapplicable to contracts for acquisition of commercially available off-the-shelf items. However, the list of statutes cannot include a provision of law that provides for criminal or civil penalties.

DATES: Comments are due on or before March 31, 2003.

ADDRESSES: Submit written comments on interim rule to General Services Administration, FAR Secretariat (MVA), 1800 F Street, NW, Room 4035, Attn: Laurie Duarte, Washington, DC 20405. Submit e-mail comments to: farcase.2000-3005@gsa.gov. Cite "FAR case 2000-305" when referring to this ANPR.

FOR FURTHER INFORMATION CONTACT: Victoria Moss, Procurement Analyst, 202-501-4764.

SUPPLEMENTAL INFORMATION: Certain laws have already been determined to be inapplicable to all commercial items as a result of the implementation of the Federal Acquisition Streamlining Act of 1994 (see FAR 12.503, Applicability of Certain Laws to Executive Agency Contracts for the Acquisition of Commercial Items). The additional provisions of law that could be determined inapplicable to commercially available off-the-shelf items are as follows:

• 5 U.S.C. 552a, Privacy Act (see FAR 52.239-1, Privacy or Security Safeguards)
• 29 U.S.C. 793, Affirmative Action for Handicapped Workers (see FAR 52.222-36, Affirmative Action for Workers with Disabilities)
• 31 U.S.C. 529, Restriction on Advance Payments (allow agencies to modify paragraph (i) in the clause at FAR 52.212-4, Contract Terms and Conditions -- Commercial Items, to require payment upon notice of shipping)
• 38 U.S.C. 4212, Affirmative Action for Special Disabled Vietnam Era Veterans (see FAR 52.222-35, Equal Opportunity for Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans)
• 38 U.S.C. 4212(d)(1), Employment Reports on Special disabled Veterans and Veterans of the Vietnam Era (see FAR 52.222-37, Employment Reports on Special Disabled Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans)
• 41 U.S.C. 10, Buy American Act -- Supplies (see FAR 52.225-1, Buy American Act -- Supplies, and FAR 52.225-3, Buy American Act -- North American Free Trade Agreement -- Israeli Trade Act)
• 41 U.S.C. 253d, Validation of Proprietary Data Restrictions (see FAR 12.211, Technical Data)
• 41 U.S.C. 253g and 10 U.S.C. 2482, Prohibition on Limiting Subcontractor Direct Sales to the United States (see FAR 52.203-6, Restrictions on Subcontractor Sales to the Government)
• 41 U.S.C. 254d(c) and 10 U.S.C. 2513(c), Examination of Records of Contractor (see FAR 52.215-2, Audits and Records -- Negotiation)
• 41 U.S.C. 418a, Rights in Technical Data (see FAR 12.211, Technical Data)
• 41 U.S.C. 442, Cost Accounting Standards (see FAR 12.214, Cost Accounting Standards, and the FAR Appendix, 48 CFR Chapter 99, Cost Accounting Standards);
• 41 U.S.C. 423(e)(3), Administrative Actions (see FAR 3.104, Procurement Integrity)
• 46 U.S.C. 1241(b), Transportation in American Vessels of Government Personnel and Certain Cargo (see FAR 52.247-64, Preference for Privately Owned U.S.-Flag Commercial Vessels)
• 42 U.S.C. 6962(c)(3)(A)(ii), Estimate of Percentage of Recovered Material Content for EPA [Environmental Protection Agency]-Designated Products (see FAR 52.223-9, Estimate of Percentage of Recovered Material Content for EPA Designated Products)

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

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