[Federal Register: March 9, 2005 (Volume 70, Number 45)]
[Rules and Regulations]
[Page 11762-11763]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr09mr05-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 44
[FAC 2005-01; FAR Case 2002-021; Item VIII]
RIN 9000-AJ75
Federal Acquisition Regulation; Use of FAR Clause 52.244-6,
Subcontracts for Commercial Items
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to require that the
FAR clause, Subcontracts for Commercial Items, be inserted in
solicitations and contracts other than those for commercial items.
DATES: Effective Date: March 9, 2005.
FOR FURTHER INFORMATION CONTACT The FAR Secretariat at (202) 501-4755
for
[[Page 11763]]
information pertaining to status or publication schedules. For
clarification of content, contact Mr. Michael Jackson, Procurement
Analyst, at (202) 208-4949. Please cite FAC 2005-01, FAR case 2002-021.
SUPPLEMENTARY INFORMATION:
A. Background
This final rule amends FAR 44.403 by requiring the use of the
clause at 52.244-6, Subcontracts for Commercial Items, in solicitations
and contracts other than those for commercial items.
The current clause prescription requires use of the clause in
solicitations and contracts for ``supplies or services'' other than
commercial items. It is not clear whether this includes solicitations
and contracts for construction. The clause matrix at FAR 52.301 lists
the clause at 52.244-6 as required for solicitations and contracts for
construction.
The revised clause prescription clarifies that the clause is
required in all solicitations and contracts other than those for
commercial items, thereby clearly including construction contracts that
are not for the acquisition of commercial items.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 68 FR 61302, October 27, 2003. One positive public comment
was received supporting the revisions to the clause prescription. This
final rule differs from the proposed rule by not adding the phrase ``.
. . and includes commercial construction materials but does not include
construction itself'' to the definition ``Commercial item'' under
paragraph (a) of FAR clause 52.244-6, Definitions. This additional
language is unnecessary to clarify the ambiguity between the matrix and
the clause prescription. The change at FAR 44.403 and the clause
matrix, that already requires the clause in solicitations and contracts
for construction, provide sufficient clarity. Also, the additional
language in the proposed rule could have been interpreted to conflict
with OFPP Memorandum dated July 3, 2003, Applicability of FAR Part 12
to Construction Acquisitions. This rule is not intended to make any
changes to existing OFPP guidance addressing the applicability of FAR
Part 12 to construction acquisitions.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule is a
clarification of existing policy. Inclusion of FAR clause 52.244-6
reduces the number of flow down clauses required in subcontracts for
commercial items and commercial components.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
3501, et seq.
List of Subjects in 48 CFR Part 44
Government procurement.
Dated: February 24, 2005.
Rodney P. Lantier,
Director, Contract Policy Division.
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Therefore, DoD, GSA, and NASA amend 48 CFR part 44 as set forth below:
PART 44--SUBCONTRACTING POLICIES AND PROCEDURES
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1. The authority citation for 48 CFR part 44 is revised to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
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2. Revise section 44.403 to read as follows:
44.403 Contract clause.
The contracting officer shall insert the clause at 52.244-6,
Subcontracts for Commercial Items, in solicitations and contracts other
than those for commercial items.
[FR Doc. 05-4091 Filed 3-8-05; 8:45 am]