[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
[Page 14651-14652]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr09-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR-2009-0002, Sequence 3]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-32; Small Entity Compliance Guide
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Small Entity Compliance Guide.
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SUMMARY: This document is issued under the joint authority of the
Secretary of Defense, the Administrator of General Services and the
Administrator of the National Aeronautics and Space Administration.
This Small Entity Compliance Guide has been prepared in accordance with
Section 212 of the Small Business Regulatory Enforcement Fairness Act
of 1996. It consists of a summary of rules appearing in Federal
Acquisition Circular (FAC) 2005-32 which amend the FAR. An asterisk (*)
next to a rule indicates that a regulatory flexibility analysis has
been prepared. Interested parties may obtain further information
regarding these rules by referring to FAC 2005-32 which precedes this
document. These documents are also available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: Hada Flowers, FAR Secretariat, (202)
208-7282. For clarification of content, contact the analyst whose name
appears in the table below.
List of Rules in FAC 2005-32
------------------------------------------------------------------------
Item Subject FAR case Analyst
------------------------------------------------------------------------
I............... American Recovery 2009-008 Murphy.
and Reinvestment
Act of 2009 (the
Recovery Act)--Buy
American
Requirements for
Construction
Material (Interim).
II.............. American Recovery 2009-012 Parnell.
and Reinvestment
Act of 2009 (the
Recovery Act)--
Whistleblower
Protections
(Interim).
III............. American Recovery 2009-010 Gary.
and Reinvestment
Act of 2009
(theRecovery Act)--
Publicizing
Contract Actions
(Interim).
IV*............. American Recovery 2009-009 Woodson.
and Reinvestment
Act of 2009
(theRecovery Act)--
Reporting
Requirements
(Interim).
V............... American Recovery 2009-011 Chambers.
and Reinvestment
Act of 2009 (the
Recovery Act)--GAO/
IG Access (Interim).
VI.............. GAO Access to 2008-026 Neurauter.
Contractor
Employees (Interim).
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SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the
actual revisions and/or amendments to these FAR cases, refer to the
specific item number and subject set forth in the documents following
these item summaries.
FAC 2005-32 amends the FAR as specified below:
Item I--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Buy American Requirements for Construction Material (Interim)
(FAR Case 2009-008)
This interim rule implements the Buy American provision, section
1605, of the American Recovery and Reinvestment Act of 2009. It
prohibits the use of funds appropriated for the Recovery Act for any
project for the construction, alteration, maintenance, or repair of a
public building or public work unless all of the iron, steel, and
manufactured goods used in the project are produced in the United
States. However, section 1605 requires that the Buy American
requirement be applied in a manner consistent with U.S. obligations
under international agreements. Moreover, because Congress intended
that least developed countries be excepted from section 1605, least
developed countries can continue to be treated as designated countries.
Section 1605 also provides for waivers under certain limited
circumstances.
Item II--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Whistleblower Protections (Interim) (FAR Case 2009-012)
Subpart 3.9 of the Federal Acquisition Regulation (FAR) is revised
to add section 3.907. Section 3.907 provides procedures for
whistleblower protection, when using funds appropriated or otherwise
provided by the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5).
Section 3.907 provides that non-Federal employers are prohibited
from discharging, demoting, or discriminating against employees as a
reprisal for disclosing certain covered information to certain
categories of Government officials. This section
[[Page 14652]]
further provides definitions relevant to the statute; establishes time
periods within which the Inspector General and the agency head must
take action with regard to a complaint filed by a contractor employee;
establishes procedures for access to investigative files of the
Inspector General; and provides for remedies and enforcement authority.
A new clause 52.203-15 is added to require contractors to post
rights and remedies for whistleblower protections under Section 1553 of
the American Recovery and Reinvestment Act.
Item III--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Publicizing Contract Actions (Interim) (FAR Case 2009-010)
This interim rule implements the Office of Management and Budget's
Guidance, M-09-10, ``Initial Implementing Guidance for the American
Recovery and Reinvestment Act of 2009,'' dated February 18, 2009,
section 6.2. Federal Acquisition Regulation (FAR) Part 4 requires the
contracting officer to enter data in the Federal Procurement Data
System on any action funded in whole or in part by the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), in accordance
with the instructions at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fpds.gov. Subpart 5.7 is added to
direct the contracting officer to use the Governmentwide Point of Entry
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fedbizopps.gov) to (1) identify the action as funded by
the Recovery Act; (2) post pre-award notices for orders exceeding
$25,000 for ``informational purposes only;'' (3) describe supplies and
services (including construction) in a narrative that is clear and
unambiguous to the general public; and (4) provide a rationale for
awarding any action, including modifications and orders, that is not
both fixed-price and competitive, and include the rationale for using
other than a fixed-price and/or competitive approach. Parts 8, 13, and
16 are amended to reflect the new posting requirements for orders at
Subpart 5.7.
Item IV--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Reporting Requirements (Interim) (FAR Case 2009-009)
This interim rule implements section 1512 of Division A of the
American Recovery and Reinvestment Act of 2009, which requires
contractors to report on their use of Recovery Act funds. The rule adds
a new subpart 4.15, and a new clause, 52.204-11. Contracting officers
must include the new clause in solicitations and contracts funded in
whole or in part with Recovery Act funds, except classified
solicitations and contracts. This clause applies to Commercial item
contracts and Commercially-Available-Off-The-Shelf (COTS) item
contracts as well as actions under the Simplified Acquisition
Threshold.
Contracting officers who wish to use Recovery Act funds on existing
contracts should modify those contracts to add the clause.
Reports from contractors for all work funded, in whole or in part,
by the Recovery Act, and for which an invoice is submitted prior to
June 30, 2009, are due no later than July 10, 2009. Thereafter, reports
shall be submitted no later than the 10th day after the end of each
calendar quarter.
Item V--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--GAO/IG Access (Interim) (FAR Case 2009-011)
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils) are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement Sections 902, 1514,
and 1515 of the American Recovery and Reinvestment Act of 2009.
Collectively, these Sections provide for the audit and review of
both contracts and subcontracts, and the ability to interview such
contractor and subcontractor personnel under contracts containing
Recovery Act funds.
These Recovery Act provisions are implemented in new alternate
clauses to 52.212-5, ``Contract Terms and Conditions Required to
Implement Statutes or Executive Orders-Commercial Items,'' 52-214-26,
``Audit and Records-Sealed Bidding,'' and 52.215-2, ``Audit and
Records-Negotiation.'' For the Comptroller General these alternate
clauses provide specific authority to audit contracts and subcontracts
and to interview contractor and subcontractor employees under contracts
using Recovery Act funds. Agency inspector generals receive the same
authorities, with the exception of interviewing subcontractor
employees.
Item VI--GAO Access to Contractor Employees (Interim) (FAR Case 2008-
026)
This interim rule amends the Federal Acquisition Regulation (FAR)
Parts 12 and 52. Clauses 52.215-2, Audit and Records-Negotiation and
52.214-26, Audit and Records-Sealed Bidding are being modified to allow
the Government Accountability Office to interview current contractor
employees when conducting audits. The rule will not apply to the
acquisition of commercial items; therefore, FAR 12.503 will be amended
to add the exemption of this rule. This change implements Section 871
of the Duncan Hunter National Defense Authorization Act for Fiscal Year
2009 (NDAA) (Pub. L. 110-417).
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
[FR Doc. E9-7024 Filed 3-30-09; 8:45 am]
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