[Federal Register: December 13, 2010 (Volume 75, Number 238)]
[Rules and Regulations]               
[Page 77721-77723]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]

[[Page 77721]]


Part III

Department of Defense

General Services Administration

National Aeronautics and Space Administration

48 CFR Chapter 1 and Parts 1, 2, 3, et al.

Federal Aquisition Regulations; Final Rules, Interim Rules, and Small 
Entity Compliance Guide

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48 CFR Chapter 1

[Docket FAR 2010-0076, Sequence 9]

Federal Acquisition Regulation; Federal Acquisition Circular 
2005-47; Introduction

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Summary presentation of rules.


SUMMARY: This document summarizes the Federal Acquisition Regulation 
(FAR) rules agreed to by the Civilian Agency Acquisition Council and 
the Defense Acquisition Regulations Council (Councils) in this Federal 
Acquisition Circular (FAC) 2005-47. A companion document, the Small 
Entity Compliance Guide (SECG), follows this FAC. The FAC, including 
the SECG, is available via the Internet at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.

DATES: For effective dates see separate documents, which follow.

FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the 
table below in relation to each FAR case. Please cite FAC 2005-47 and 
the specific FAR case numbers. For information pertaining to status or 
publication schedules, contact the Regulatory Secretariat at (202) 501-

                                          List of Rules in FAC 2005-47
                 Item                              Subject                FAR case              Analyst
I.....................................  Notification of Employee             2010-006  McFadden.
                                         Rights Under the National
                                         Labor Relations Act
II....................................   HUBZone Program Revisions...        2006-005  Morgan.
III...................................  Preventing Abuse of                  2008-032  Sakalos.
                                         Interagency Contracts
IV....................................  Small Disadvantaged Business         2009-019  Morgan.
                                         Self-Certification (Interim).
V.....................................  Uniform Suspension and               2009-036  Gary.
                                         Debarment Requirement
VI....................................  Limitation on Pass-Through           2008-031  Chambers.
VII...................................  Technical Amendments.........

SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the 
actual revisions and/or amendments made by these FAR cases, refer to 
the specific item number and subject set forth in the documents 
following these item summaries.
    FAC 2005-47 amends the FAR as specified below:

Item I--Notification of Employee Rights Under the National Labor 
Relations Act (FAR Case 2010-006) (Interim)

    This interim rule amends the Federal Acquisition Regulation (FAR) 
to implement Executive Order 13496, Notification of Employee Rights 
Under Federal Labor Laws, as implemented by the Department of Labor 
(DoL). The Executive order requires contractors and subcontractors to 
post a notice that includes employee rights under the National Labor 
Relations Act, 29 U.S.C. 151 et seq. This Act encourages collective 
bargaining, and protects the exercise by employees of their freedom to 
associate, to self organize and to designate representatives of their 
own choosing for the purpose of negotiating the terms and conditions of 
their employment. This FAR interim rule establishes a new subpart 
22.16, Notification of Employee Rights under the National Labor 
Relations Act. The rule also creates a new FAR clause 52.222-40, 
Notification of Employee Rights under the National Labor Relations Act. 
In addition, this rule revises the FAR clauses at 52.212-5, Contract 
Terms and Conditions Required to Implement Statutes or Executive 
Orders--Commercial Items, and 52.244-6, Subcontracts for Commercial 
Items, to include the requirements of the new FAR clause 52.222-40. The 
required employee notice, ``Notification of Employee Rights Under the 
National Labor Relations Act,'' may be obtained from the DoL; 
downloaded from a DoL Web site; provided by the Federal contracting 
agency, if requested; or reproduced and used as exact duplicate copies 
of the DoL's official poster (see FAR 52.222-40(c)). Contracting 
officers shall insert the clause at FAR 52.222-40, Notification of 
Employee Rights under the National Labor Relations Act, in all 
solicitations and contracts, including acquisitions for commercial 
items and commercially available off-the-shelf items, except 
    (1) Under the simplified acquisition threshold. For indefinite-
quantity contracts, include the clause only if the value of orders in 
any calendar year of the contract is expected to exceed the simplified 
acquisition threshold;
    (2) For work performed exclusively outside the United States; or
    (3) Covered (in their entirety) by an exemption granted by the 
    A contracting agency may modify the clause at FAR 52.222-40, if 
necessary, to reflect an exemption granted by the Secretary of the 
Department of Labor (see 22.1603(b)).

Item II--HUBZone Program Revisions (FAR Case 2006-005)

    This FAR final rule implements the Small Business Administration 
(SBA) final rule published in the Federal Register at 69 FR 29411 on 
May 24, 2004, and an interim rule published in the Federal Register at 
70 FR 51243 on August 30, 2005, amending its HUBZone regulations at 13 
CFR part 126 to implement the Small Business Reauthorization Act of 
2000, the Consolidated Appropriations Act of 2005, and other various 
policy changes. The FAR is amended to--
    (1) Require a HUBZone small business concern to be a HUBZone small 
business concern both at the time of its initial offer and at the time 
of contract award;
    (2) Require that HUBZone concerns provide to the contracting 
officer a copy of the notice required by 13 CFR 126.501 if material 
changes occur before award that could affect its HUBZone eligibility;
    (3) Allow waiver of the 50 percent requirement. In accordance with 
13 CFR 126.700, for general construction or construction by special 
trade contractors, a HUBZone small business concern must spend at least 
50 percent of the cost of contract performance incurred for personnel 
on its own employees or subcontract employees of

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other HUBZone small business concerns. This final rule amends FAR 
clause 52.219-3, Notice of Total HUBZone Set-Aside, and FAR clause 
52.219-4, Notice of Price Evaluation Preference for HUBZone Small 
Business Concerns, to include an Alternate I, to be used to waive the 
50 percent requirement only after determining that at least two HUBZone 
small business concerns cannot meet the requirement. However, the 
HUBZone small business prime contractor must still meet the performance 
of work requirements set forth in 13 CFR 125.6(c).

Item III--Preventing Abuse of Interagency Contracts (FAR Case 2008-032) 

    This interim rule implements section 865 of the Duncan Hunter 
National Defense Authorization Act (NDAA) for Fiscal Year 2009. FAR 
subpart 17.5 now addresses all interagency acquisitions, not just those 
made under the Economy Act authority. A new subsection 17.502-1 is 
added to require that all interagency acquisitions include a 
determination of best procurement approach. For an assisted acquisition 
between the servicing agency and the requesting agency, this subsection 
now requires a written agreement that establishes the general terms and 
conditions governing the relationship between the parties. Subsection 
17.502-2 contains business-case analysis requirements when an agency 
wishes to establish a contract that would be used by other agencies. 
There is a statutory exception included in subpart 17.5 for orders of 
$500,000 or less issued against Federal Supply Schedules.

Item IV--Small Disadvantaged Business Program Self-Certification of 
Subcontractors (FAR Case 2009-019) (Interim)

    This interim rule amends the FAR by allowing small disadvantaged 
businesses (SDBs) to self-represent their SDB status to prime 
contractors in good faith when seeking Federal subcontracting 
opportunities. This change implements revisions made by the Small 
Business Administration (SBA) to its SDB regulations. This case only 
addresses the subcontracting status portion of the SBA final rule for 
Small Disadvantaged Business certification. The Small Disadvantaged 
Business certification for prime contracts will be addressed in a 
future rule. This change removes a cost of compliance burden on SDB 
subcontractors seeking SBA certification.

Item V--Uniform Suspension and Debarment Requirement (FAR Case 2009-
036) (Interim)

    This interim rule amends the FAR at parts 9 and 52 to implement 
section 815 of the National Defense Authorization Act for Fiscal Year 
2010, Public Law 111-84. The law requires that suspension and debarment 
requirements flow down to all subcontracts except contracts for the 
acquisition of commercially available off-the-shelf items, and in the 
case of contracts for the acquisition of commercial items, first-tier 
subcontracts only.
    This requirement will protect the Government against contracting 
with entities at any tier who are suspended, debarred or proposed for 
debarment. This rule does not have a significant impact on the 
Government, contractors or any automated systems.

Item VI--Limitations on Pass-Through Charges (FAR Case 2008-031)

    This final rule adopts the interim rule published in the Federal 
Register at 74 FR 52853, October 14, 2009, as a final rule with minor 
    The interim rule amended the FAR to implement section 866 of the 
Duncan Hunter National Defense Authorization Act (NDAA) for Fiscal Year 
2009 (Pub. L. 110-417) and section 852 of the John Warner NDAA for 
Fiscal Year 2007 (Pub. L. 109-364). This legislation required the 
Councils to amend the FAR to minimize excessive pass-through charges by 
contractors from subcontractors, or from tiers of subcontractors, that 
add no or negligible value, and to ensure that neither a contractor nor 
a subcontractor receives indirect costs or profit/fee (i.e., pass-
through charges) on work performed by a lower-tier subcontractor to 
which the higher-tier contractor or subcontractor adds no, or 
negligible, value.
    To enable agencies to ensure that pass-through charges are not 
excessive, the interim rule included a solicitation provision and a 
contract clause requiring offerors and contractors to identify the 
percentage of work that will be subcontracted, and when subcontract 
costs will exceed 70 percent of the total cost of work to be performed, 
to provide information on indirect costs and profit/fee and value added 
with regard to the subcontract work.

Item VII--Technical Amendments

    Editorial changes are made at FAR 3.104-1, 5.601, 7.105, and 

    Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
    Dated: November 23, 2010.
Shay D. Assad,
Director, Defense Procurement and Acquisition Policy.
    Dated: November 24, 2010.
Joseph A. Neurauter,
Deputy Associate Administrator and Senior Procurement Executive, Office 
of Acquisition Policy, U.S. General Services Administration.
    Dated: November 23, 2010.
William P. McNally,
Assistant Administrator for Procurement, National Aeronautics and Space 
[FR Doc. 2010-30558 Filed 12-10-10; 8:45 am]