Cancelled by PIC 01-07

NASA logo

 

01-02

Procurement Information Circular


February 9, 2001

CLASS DEVIATION STAYING THE EFFECTIVE DATE OF FEDERAL ACQUISITION CIRCULAR (FAC) 97-21, CONTRACTOR RESPONSIBILITY, LABOR RELATIONS COSTS, AND COSTS RELATING TO LEGAL AND OTHER PROCEDURES

PURPOSE: To stay the January 19, 2001 effective date of FAC 97-21.

BACKGROUND: FAC 97-21 was published in the Federal Register on December 20, 2000, with an effective date of January 19, 2001. The FAC made changes to FAR Parts 9, 14, 15, 31, and 52 regarding contractor responsibility determinations and allowability of costs.

GUIDANCE: The effective date of FAC 97-21 is stayed. A FAR class deviation is enclosed to revert to the FAR language in effect before issuance of FAC 97-21. Contracting officers must amend all solicitations issued after January 19, 2001 that included one of the FAC 97-21 certification provisions (52.209-5 or 52.212-3) to delete the provision and replace it with the applicable version in the enclosure.

EFFECTIVE DATE: This PIC is effective as dated. The deviation is indefinite, until the issues associated with FAC 97-21 are resolved at the FAR Council level.

HEADQUARTERS CONTACT: Tom O'Toole, Code HK, (202) 358-0478, email: thomas.otoole@hq.nasa.gov.

 

 Tom Luedtke
Associate Administrator for Procurement

Enclosure


CLASS DEVIATION STAYING THE EFFECTIVE DATE OF FEDERAL
ACQUISITION CIRCULAR 97-21

PART 9-CONTRACTOR QUALIFICATIONS

1. In section 9.103, revise paragraph (b) to read as follows:

9.103 Policy.

*          *          *          *          *

(b) No purchase or award shall be made unless the contracting officer makes an affirmative determination of responsibility. In the absence of information clearly indicating that the prospective contractor is responsible, the contracting officer shall make a determination of nonresponsibility. Contracting officers should coordinate nonresponsibility determinations based upon integrity and business ethics with legal counsel. If the prospective contractor is a small business concern, the contracting officer shall comply with Subpart 19.6, Certificates of Competency and Determinations of Responsibility. (If Section 8(a) of the Small Business Act (15 U.S.C. 637) applies, see Subpart 19.8.)

*          *          *          *          *

2. In section 9.104-1, revise paragraph (d) to read as follows:

9.104-1 General standards.

*          *          *          *          *

d) Have a satisfactory record of integrity and business ethics[;] including satisfactory compliance with the law including tax laws, labor and employment laws, environmental laws, antitrust laws, and consumer protection laws.

*          *          *          *          *

PART 14-SEALED BIDDING

3. In section 14.404-2, revise paragraph (i) to read as follows:

14.404-2 Rejection of individual bids.

*          *          *          *          *

(i) The contracting officer must reject low bids received from concerns determined to be nonresponsible pursuant to Subpart 9.1 (but if a bidder is a small business concern, see Subpart 19.6 with respect to certificates of competency). The contracting officer must promptly notify the bidder of the non-responsibility determination and the basis for it. [Low bids received from concerns determined to be not responsible pursuant to Subpart 9.1 shall be rejected (but if a bidder is a small business concern, see 19.6 with respect to certificates of competency).]

*          *          *          *          *

PART 15-CONTRACTING BY NEGOTIATION

4. In section 15.503, revise paragraph (a)(1) to read as follows:

15.503  Notifications to unsuccessful offerors.

            (a) Preaward notices- (1) Preaward notices of exclusion from competitive range. The contracting officer must notify offerors promptly in writing when their proposals are excluded from the competitive range or otherwise eliminated from the competition. The notice must state the basis for the determination and that a proposal revision will not be considered. When the exclusion or elimination of a proposal is based on a nonresponsibility determination, the contracting officer must state the basis for the determination.

*          *          *          *          *

PART 31-CONTRACT COST PRINCIPLES AND PROCEDURES

5. In section 31.205-47, revise paragraph (a) by adding the definition of "Fraud" and revise paragraph (b)(2) to read as follows:

31.205-47  Costs related to legal and other proceedings.

*          *          *          *          *

(a) * * *

Fraud, as used in this subsection, means-

            (1) Acts of fraud or corruption or attempts to defraud the Government or to corrupt its agents,

            (2) Acts which constitute a cause for debarment or suspension under 9.406-2(a) and 9.407-2(a) and

            (3) Acts which violate the False Claims Act, 31 U.S.C., sections 3729-3731, or the Anti-Kickback Act, 41 U.S.C., sections 51 and 54.

*          *          *          *          *

            (b) * * *

            (2) In a civil or administrative proceeding, a finding that the contractor violated, or failed to comply with, a law or regulation;  [either a finding of contractor liability where the proceeding involves an allegation of fraud or similar misconduct or imposition of a monetary penalty where the proceeding does not involve an allegation of fraud or similar misconduct;]

*          *          *          *          *

PART 52-SOLICITATION PROVISIONS AND CONTRACT CLAUSES

6. In section 52.209-5, substitute the following deviation:

52.209-5  Certification Regarding Debarment, Suspension, Proposed Debarment, and Other Responsibility Matters.

Certification Regarding Debarment, Suspension, Proposed Debarment,
And Other Responsibility Matters (Jan 2001) (Deviation)

(a)(1) The Offeror certifies, to the best of its knowledge and belief, that--

(i) The Offeror and/or any of its Principals--

(A) Are [ ] are not [ ] presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency;

(B) Have [ ] have not [ ], within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a public (Federal, state, or local) contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; and

(C) Are [ ] are not [ ] presently indicted for, or otherwise criminally or civilly charged by a governmental entity with, commission of any of the offenses enumerated in subdivision (a)(1)(i)(B) of this provision.

(ii) The Offeror has [ ] has not [ ], within a three-year period preceding this offer, had one or more contracts terminated for default by any Federal agency.

(2) "Principals," for the purposes of this certification, means officers; directors; owners; partners; and, persons having primary management or supervisory responsibilities within a business entity (e.g., general manager; plant manager; head of a subsidiary, division, or business segment, and similar positions).

This Certification Concerns a Matter Within the Jurisdiction of an Agency of the United States and the Making of a False, Fictitious, or Fraudulent Certification May Render the Maker Subject to Prosecution Under Section 1001, Title 18, United States Code.

(b) The Offeror shall provide immediate written notice to the Contracting Officer if, at any time prior to contract award, the Offeror learns that its certification was erroneous when submitted or has become erroneous by reason of changed circumstances.

(c) A certification that any of the items in paragraph (a) of this provision exists will not necessarily result in withholding of an award under this solicitation. However, the certification will be considered in connection with a determination of the Offeror's responsibility. Failure of the Offeror to furnish a certification or provide such additional information as requested by the Contracting Officer may render the Offeror nonresponsible.

(d) Nothing contained in the foregoing shall be construed to require establishment of a system of records in order to render, in good faith, the certification required by paragraph (a) of this provision. The knowledge and information of an Offeror is not required to exceed that which is normally possessed by a prudent person in the ordinary course of business dealings.

(e) The certification in paragraph (a) of this provision is a material representation of fact upon which reliance was placed when making award. If it is later determined that the Offeror knowingly rendered an erroneous certification, in addition to other remedies available to the Government, the Contracting Officer may terminate the contract resulting from this solicitation for default.

(End of provision)

7. In section 52.212-3, substitute the following paragraph (h) for the paragraph (h) established in FAC 97-21. Identify the provision as a deviation using the latest version of the provision. Please note that this provision will change when FACs 97-22 and 97-23 become effective.

52.212-3  Offeror Representations and Certifications- Commercial Items.

*          *          *          *          *

Offeror Representations and Certifications-Commercial Items
(Date of latest version) (Deviation)

*          *          *          *          *

            (h) Certification Regarding Debarment, Suspension or Ineligibility for Award (Executive Order 12549). The offeror certifies, to the best of its knowledge and belief, that-

            (1) The offeror and/or any of its principals [ ] are, [ ] are not presently debarred, suspended, proposed for debarment, or declared ineligible for the award of contracts by any Federal agency; and

            (2) [ ] Have, [ ] have not, within a three-year period preceding this offer, been convicted of or had a civil judgment rendered against them for: commission of fraud or a criminal offense in connection with obtaining, attempting to obtain, or performing a Federal, state or local government contract or subcontract; violation of Federal or state antitrust statutes relating to the submission of offers; or commission of embezzlement, theft, forgery, bribery, falsification or destruction of records, making false statements, tax evasion, or receiving stolen property; and [ ] are, [ ] are not presently indicted for, or otherwise criminally or civilly charged by a Government entity with, commission of any of these offenses.

(End of provision)