[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]





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.


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
                   Requirements for
                   Material (Interim).
II..............  American Recovery           2009-012  Parnell.
                   and Reinvestment
                   Act of 2009 (the
                   Recovery Act)--
III.............  American Recovery           2009-010  Gary.
                   and Reinvestment
                   Act of 2009
                   (theRecovery Act)--
                   Contract Actions
IV*.............  American Recovery           2009-009  Woodson.
                   and Reinvestment
                   Act of 2009
                   (theRecovery Act)--
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.
                   Employees (Interim).

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 

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. 
    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 
    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 

Item VI--GAO Access to Contractor Employees (Interim) (FAR Case 2008-

    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]