[Federal Register: March 19, 2010 (Volume 75, Number 53)]
[Rules and Regulations]               
[Page 13425-13426]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]





48 CFR Chapter 1

[Docket FAR 2010-0077, Sequence 1]

Federal Acquisition Regulation; Federal Acquisition Circular 
2005-39; 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) 2005-39 which amend the Federal Acquisition 
Regulation (FAR). Interested parties may obtain further information 
regarding these rules by referring to FAC 2005-39 which precedes this 
document. These documents are also available via the Internet at http:/

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 2005-39
      Item                          Subject                             FAR case                 Analyst
I..............  Extend Use of Simplified Acquisition           2009-035                 Jackson.
                  Procedures for Certain Commercial Items.
II.............  Clarification of Submission of Cost or         2008-012                 Chambers.
                  Pricing Data on Non-Commercial Modifications
                  of Commercial Items.
III............  Use of Standard Form 26 - Award/Contract.....  2008-040                 Jackson.
IV.............  Enhanced Competition for Task- and Delivery-   2008-006                 Clark.
                  Order Contracts-Section 843 of the Fiscal
                  Year 2008 National Defense Authorization Act.
V..............  Trade Agreements--Costa Rica, Oman, and Peru.  2008-036                 Sakalos.
VI.............  Payments Under Fixed-Price Architect-Engineer  2008-015                 Neurauter.
VII............  Technical Amendment..........................  .......................  .......................

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 2005-39 amends the FAR as specified below:

Item I--Extend Use of Simplified Acquisition Procedures for Certain 
Commercial Items (FAR Case 2009-035)

    This final rule amends the FAR to implement section 816 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2010. 
The rule extends for two more years the commercial items test program 
in FAR subpart 13.5. The program was to expire January 1, 2010.

Item II--Clarification of Submission of Cost or Pricing Data on Non-
Commercial Modifications of Commercial Items (FAR Case 2008-012)

    This final rule adopts, with minor changes, the interim rule 
published in the Federal Register at 74 FR 11826 on

[[Page 13426]]

March 19, 2009. The interim rule amended the FAR to implement section 
814 of the NDAA for FY 2008. Section 814 requires the harmonization of 
the threshold for cost or pricing data on non-commercial modifications 
of commercial items with the Truth in Negotiations Act (TINA) threshold 
for cost or pricing data. By linking the threshold for cost or pricing 
data on non-commercial modifications of commercial items with the TINA 
threshold at FAR 15.403-4, whenever the TINA threshold is adjusted the 
threshold for cost or pricing data on non-commercial modifications of 
commercial items will be automatically adjusted as well.

Item III--Use of Standard Form 26 - Award/Contract (FAR Case 2008-040)

    This final rule modifies the instructions for use of the Standard 
Form 26, Award/Contract, at FAR subparts 15.5 and 53.2 to clarify that 
block 18 of the form should not be used to award a negotiated 
procurement. No change is made to existing policy or procedures.

Item IV--Enhanced Competition for Task- and Delivery-Order Contracts--
Section 843 of the Fiscal Year 2008 National Defense Authorization Act 
(FAR Case 2008-006)

    This final rule adopts, with changes, the interim rule published in 
the Federal Register at 73 FR 54008 on September 17, 2008. The interim 
rule amended FAR subpart 16.5 to implement section 843 of the NDAA for 
FY 2008. The provisions of section 843 include (1) Limitation on single 
award task- or delivery-order contracts greater than $100 million; (2) 
Enhanced competition for task and delivery orders in excess of $5 
million; and (3) Restriction on protests in connection with issuance or 
proposed issuance of a task or delivery order except for a protest on 
orders on the grounds that the order increases the scope, period, or 
maximum value of the contract under which the order is issued, or a 
protest of an order valued in excess of $10 million. Several changes 
are made to the FAR as result of public comments on the interim rule. 
FAR 16.503 is amended to clarify that a requirements contract is 
awarded to one contractor. FAR 16.504(c)(1)(ii)(D)(3) is amended to 
clarify that the agency-head determination to award a single-award 
task- or delivery-order contract over $100 million does not apply to an 
architect-engineer task- or delivery-order contract awarded pursuant to 
FAR subpart 36.6. The Councils also revised FAR 16.504(c)(1)(ii)(D)(3) 
to state that the requirement for a determination for a single-award 
contract greater than $100 million is in addition to any applicable 
requirements of FAR subpart 6.3. This change is made to clarify that 
the determination for a single award task- or delivery-order contract 
greater than $100 million is required in addition to the Justification 
and Approval (J&A) required by FAR subpart 6.3 when a procurement will 
be conducted as other than full and open competition.

Item V--Trade Agreements--Costa Rica, Oman, and Peru (FAR Case 2008-

    The Councils have adopted as final, without change, an interim rule 
published in the Federal Register at 74 FR 28426 on June 15, 2009, 
amending the FAR to implement the Dominican Republic--Central America--
United States Free Trade Agreement with respect to Costa Rica, the 
United States-Oman Free Trade Agreement, and the United States-Peru 
Trade Promotion Agreement.
    This final rule allows contracting officers to purchase the goods 
and services of Costa Rica, Oman, and Peru without application of the 
Buy American Act if the acquisition is subject to the applicable trade 

Item VI--Payments Under Fixed-Price Architect-Engineer Contracts (FAR 
Case 2008-015)

    This rule amends FAR 52.232-10, Payments under Fixed-Price 
Architect-Engineer Contracts, to revise and clarify the retainage 
requirements. The contracting officer can withhold up to 10 percent of 
the payment due in any billing period when the contracting officer 
determines that such a withholding is necessary to protect the 
Government's interest and ensure satisfactory completion of the 
contract. However, withholding the entire 10 percent is not required, 
and no withholding is required if the contractor's performance has been 
satisfactory. The changes clarify that retainage is optional and any 
amounts retained should not be held over beyond the satisfactory 
completion of the instant contract.

Item VII--Technical Amendment

    An editorial change has been made at FAR 14.202-4(a)(3).

    Dated: March 15, 2010.
Al Matera,
Director, Acquisition Policy Division.
[FR Doc. 2010-5993 Filed 3-18-10; 8:45 am]