[Federal Register: January 10, 2008 (Volume 73, Number 7)]
[Rules and Regulations]               
[Page 1822-1823]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]



Defense Acquisition Regulations System

48 CFR Parts 204, 212, and 252

RIN 0750-AF55

Defense Federal Acquisition Regulation Supplement; DoD 
Representations and Certifications in the Online Representations and 
Certifications Application (DFARS Case 2006-D032)

AGENCY: Defense Acquisition Regulations System, Department of Defense 

ACTION: Final rule.


SUMMARY: DoD has issued a final rule amending the Defense Federal 
Acquisition Regulation Supplement (DFARS) to address the DFARS 
provisions included in the Online Representations and Certifications 
Application (ORCA). Use of ORCA eliminates the need for offerors to 
repetitively submit the same information in response to Government 

DATES: Effective Date: January 10, 2008.

FOR FURTHER INFORMATION CONTACT: Ms. Felisha Hitt, Defense Acquisition 
Regulations System, OUSD (AT&L) DPAP (DARS), IMD 3D139, 3062 Defense 
Pentagon, Washington, DC 20301-3062. Telephone 703-602-0310; facsimile 
703-602-7887. Please cite DFARS Case 2006-D032.


A. Background

    Subpart 4.12 of the Federal Acquisition Regulation (FAR) requires 
prospective contractors to complete electronic annual representations 
and certifications in ORCA, in conjunction with required registration 
in the Central Contractor Registration database. FAR 4.1202 prescribes 
use of the solicitation provision at 52.204-8, Annual Representations 
and Certifications; provides a list of the FAR representations and 
certifications in ORCA; and provides direction to the contracting 
officer to exclude those representations and certifications from 
solicitations that contain the clause at FAR 52.204-7, Central 
Contractor Registration.
    Similarly, this DFARS rule contains a list of the DFARS 
representations and certifications in ORCA, and provides direction to 
the contracting officer to exclude those representations and 
certifications when using the provision at FAR 52.204-8. In addition, 
the DFARS rule contains a substitute paragraph (c) for use with the 
provision at FAR 52.204-8 to permit inclusion of information relating 
to both the FAR and the DFARS. An offeror must include information in 
paragraph (c) only if changes to the offeror's annual representations 
and certifications apply to a particular solicitation.
    DoD published a proposed rule at 72 FR 6515 on February 12, 2007. 
DoD received comments from one respondent. A discussion of the comments 
is provided below.
    1. Comment: The respondent suggested administrative changes to the 
organization of the contents of ORCA to enhance the certification 
    DoD Response: The comment is outside the scope of this DFARS case. 
However, the comment has been forwarded to the Government officials 
responsible for managing the ORCA system.
    2. Comment: The respondent recommended revision of the introductory 
statement at 204.1202(2), from ``Do not include the following 
representations and certifications'' to ``Do not include the following 
representations and certifications in solicitations and contracts.''
    DoD Response: DoD believes that the direction in the introductory 
statement is clear as written, and that the additional phrase is 
    3. Comment: The respondent recommended amendment of the second 
sentence in the introductory text at 212.301(f) pertaining to 
commercial item solicitations, to change ``may'' to ``shall'' with 
regard to direction to the contracting officer to consider the 
information in ORCA.
    DoD Response: DoD has retained ``may'' in this sentence to provide 
flexibility to the contracting officer in the review of representations 
and certifications.
    This rule was not subject to Office of Management and Budget review 
under Executive Order 12866, dated September 30, 1993.

B. Regulatory Flexibility Act

    DoD has prepared a final regulatory flexibility analysis consistent 
with 5 U.S.C. 604. A copy of the analysis may be obtained from the 
point of contact specified herein. The analysis is summarized as 
    The objective of the rule is to maintain a centralized location for 
the representation and certification information required by the DFARS, 
thereby eliminating the need for offerors to submit the same 
information to various DoD offices in response to individual 
solicitations. The rule will apply to prospective DoD contractors 
registered in the Central Contractor Registration database. FAR 4.1102 
requires that prospective contractors be registered in the database 
before the award of a contract or agreement, with certain exceptions. 
Administrative personnel that have general knowledge of the 
contractor's business should be able to enter the applicable 
representation and certification information into ORCA. The rule is 
expected to have a positive impact on small business concerns by 
reducing administrative burdens.

C. Paperwork Reduction Act

    The information collection requirements of the representations and 
certifications addressed in this rule that require offerors to provide 
specific fill-in information have been approved by

[[Page 1823]]

the Office of Management and Budget under Control Numbers 0704-0229, 
0704-0245, and 0704-0259. This rule does not impose information 
collection requirements beyond those already required by existing DFARS 
representations and certifications.

List of Subjects in 48 CFR Parts 204, 212, and 252

    Government procurement.

Michele P. Peterson,
Editor, Defense Acquisition Regulations System.

Therefore, 48 CFR parts 204, 212, and 252 are amended as follows:
1. The authority citation for 48 CFR parts 204, 212, and 252 continues 
to read as follows:

    Authority: 41 U.S.C. 421 and 48 CFR Chapter 1.


2. Subpart 204.12 is added to read as follows:

Subpart 204.12--Annual Representations and Certifications

204.1202  Solicitation provision and contract clause.

    When using the provision at FAR 52.204-8, Annual Representations 
and Certifications--
    (1) Use the provision with 252.204-7007, Alternate A, Annual 
Representations and Certifications; and
    (2) Do not include the following representations and 
    (i) 252.209-7005, Reserve Officer Training Corps and Military 
Recruiting on Campus.
    (ii) 252.212-7000, Offeror Representations and Certifications--
Commercial Items.
    (iii) 252.216-7003, Economic Price Adjustment--Wage Rates or 
Material Prices Controlled by a Foreign Government.
    (iv) 252.225-7000, Buy American Act--Balance of Payments Program 
    (v) 252.225-7020, Trade Agreements Certificate.
    (vi) 252.225-7031, Secondary Arab Boycott of Israel.
    (vii) 252.225-7035, Buy American Act--Free Trade Agreements--
Balance of Payments Program Certificate.
    (viii) 252.225-7042, Authorization to Perform.
    (ix) 252.229-7003, Tax Exemptions (Italy).
    (x) 252.229-7005, Tax Exemptions (Spain).
    (xi) 252.239-7011, Special Construction and Equipment Charges.
    (xii) 252.247-7022, Representation of Extent of Transportation by 


3. Section 212.301 is amended by adding paragraph (f) introductory text 
to read as follows:

212.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

    (f) The following additional provisions and clauses apply to DoD 
solicitations and contracts for the acquisition of commercial items. If 
the offeror has completed the provisions listed in paragraph (f)(i) or 
(ii) of this section electronically as part of its annual 
representations and certifications at https://orca.bpn.gov, the 

contracting officer may consider this information instead of requiring 
the offeror to complete these provisions for a particular solicitation.
* * * * *


4. Section 252.204-7007 is added to read as follows:

252.204-7007  Alternate A, Annual Representations and Certifications.

Alternate A, Annual Representations and Certifications (JAN 2008)
    As prescribed in 204.1202, substitute the following paragraph (c) 
for paragraph (c) of the provision at FAR 52.204-8:
    (c) The offeror has completed the annual representations and 
certifications electronically via the Online Representations and 
Certifications Application (ORCA) Web site at https://orca.bpn.gov/. 

After reviewing the ORCA database information, the offeror verifies by 
submission of the offer that the representations and certifications 
currently posted electronically have been entered or updated within the 
last 12 months, are current, accurate, complete, and applicable to this 
solicitation (including the business size standard applicable to the 
NAICS code referenced for this solicitation), as of the date of this 
offer, and are incorporated in this offer by reference (see FAR 
4.1201); except for the changes identified below [offeror to insert 
changes, identifying change by clause number, title, date]. These 
amended representation(s) and/or certification(s) are also incorporated 
in this offer and are current, accurate, and complete as of the date of 
this offer.

        FAR/DFARS clause No.                    Title                      Date                   Change


    Any changes provided by the offeror are applicable to this 
solicitation only, and do not result in an update to the 
representations and certifications posted on ORCA.
 [FR Doc. E8-177 Filed 1-9-08; 8:45 am]