[Federal Register: December 30, 2010 (Volume 75, Number 250)]
[Proposed Rules]
[Page 82575-82576]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de10-24]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4 and 52
[FAC 2005-48; FAR Case 2009-027; Item II; Docket 2010-0091, Sequence 1]
RIN 9000-AL60
Federal Acquisition Regulation; Personal Identity Verification of
Contractor Personnel
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to provide additional regulatory
coverage to reinforce the requirement of collecting from contractors
all forms of Government-provided identification once they are no longer
needed to support a contract.
DATES: Effective Date: January 31, 2011.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Michael Jackson, Procurement Analyst, at (202) 208-4949. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-48, FAR
Case 2009-027.
SUPPLEMENTARY INFORMATION:
I. Background
DoD Inspector General Audit Report No. D-2009-005, entitled
``Controls Over the Contractor Common Access Card Life Cycle,''
addressed whether Government controls over contractor Common Access
Cards (CAC) were in place and worked as intended. A ``CAC'' is the DoD
term for a Personal Identity Verification (PIV) card. A PIV card is
required in order to gain access to a Federal facility. The most
prevalent issue of the audit report, and the one that DoD, GSA, and
NASA are undertaking to resolve with this case, was that the CACs were
not adequately accounted for after contract performance or completion.
DoD, GSA, and NASA are amending the FAR by inserting new paragraphs
(d)(1) and (d)(2) under FAR 4.1301, Policy. Paragraph (d)(1) provides
policy on recovering PIVs. Paragraph (d)(1) requires that agency
procedures ensure that Government contractors account for all forms of
Government-provided identification issued to Government contractors
under a contract, and return such identification to the issuing agency
at the earliest of any of the following, unless otherwise determined by
the agency: When no longer needed for contract performance; upon
completion of a contractor employee's employment; or upon contract
completion or termination. Paragraph (d)(2) authorizes the contracting
officer to delay final payment under a contract if the contractor fails
to comply with these requirements.
DoD, GSA, and NASA are also modifying FAR clause 52.204-9, Personal
Identity Verification of Contractor Personnel, to be consistent with
FAR part 4.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 75 FR 28771 on May 24, 2010. Three respondents submitted
four comments on the proposed rule, which are addressed below.
Although none of the public comments received caused a change in
the FAR text, the FAR text is changed in the final rule as follows:
FAR 4.1301(d)(1) is revised to clarify that this section
applies to agency procedures related to PIV card return.
FAR 4.1301(d)(1) and 52.204-9(b) are revised to clarify
that the rule applies when PIV cards are issued to contractor
employees.
FAR 52.204-9(d) is revised to clarify that the rule flows
down to all subcontractor employees when they are required to have
access to a Federally-controlled facility and/or routine access to a
Federally-controlled information system.
FAR 52.204-9(d) is also revised to clarify that the prime
contractor is responsible for returning all subcontractor PIV cards
that have been issued by an agency.
II. Discussion of Public Comments
A. Lost Cards
Comment: Two respondents stated that they have concerns over what
happens when a contractor claims to have lost an identity card and
therefore cannot return it.
Response: Each agency will establish policies for control of PIV
cards. Some agencies, for example, may replace a lost card once, but
costs for replacement of any subsequent lost PIV cards may be borne by
the contractor. The respondent may be voicing concern that there is a
potential for misuse and fraud with lost cards. DoD, GSA, and NASA
recommend that agencies program the PIV cards to become inactive if
they have not been used after a prolonged period of time.
B. Timing
Comment: Another respondent expressed concern with waiting until
the closeout period instead of taking care of the PIV cards at contract
completion.
Response: The FAR rule does not authorize waiting until the
closeout period, but instead requires the contractor to take action as
its employees leave, and again at contract completion. If the
contractor fails to take action as its employees leave or at contract
completion and the contracting officer does not follow up, then the
contracting officer must reconcile the matter at contract closeout.
C. Contractor Involvement in Issuance Process
Comment: Another respondent stated that contractor companies are
not typically involved in the PIV card issuance process. Further,
contractor responsibility for PIV card retrieval could be improved
through involving the contractor/subcontractor in the PIV card issuance
process.
Response: The Defense Acquisition Regulation Council and the
Civilian Agency Acquisition Council agree that PIV card retrieval could
be improved if the contractor was notified when an employee is issued a
PIV card. DoD, GSA, and NASA recommend that agencies amend their PIV
card procedures, if they are not doing so already, to notify the
contractor company when an agency issues a PIV card to a contractor
employee. In addition, the rule has been revised to state that the
prime contractor is responsible for the return of all PIV cards that
have been issued to the subcontractor's employees by the agency.
D. Withholding Payment
Comment: The same respondent had concerns about how long the
Government may withhold payment for non-compliance. The respondent
stated that the period of time that final payment may be delayed should
be specified, e.g., ``not to exceed 30 days'' or ``pending satisfactory
resolution of the non-compliance.''
Response: It would be unwise to state a specific date such as ``not
to exceed 30 days'' because the contractor may need a longer time to
return the PIV card. Adding language like ``pending satisfactory
resolution of the non-compliance'' is superfluous, as it is a given
that the Government would only
[[Page 82576]]
hold final payment until the non-compliance has been resolved.
III. Executive Order 12866
This is not a significant regulatory action and, therefore, is 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.
IV. Regulatory Flexibility Act
DoD, GSA, and NASA 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 requirements of the actions required and the clause
are not significantly burdensome. Currently, it is a common business
practice to have procedures in place to revoke and return PIV cards
when no longer in use by the contractor.
V. 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.
chapter 35.
List of Subjects in 48 CFR Parts 4 and 52
Government procurement.
Dated: December 22, 2010.
Millisa Gary,
Acting Director, Federal Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 4 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 4-ADMINISTRATIVE MATTERS
0
2. Amend section 4.1301 by adding paragraph (d) to read as follows:
4.1301 Policy.
* * * * *
(d)(1) Agency procedures for the return of Personal Identity
Verification (PIV) products shall ensure that Government contractors
account for all forms of Government-provided identification issued to
Government contractor employees under a contract, i.e., the PIV cards
or other similar badges, and shall ensure that contractors return such
identification to the issuing agency as soon as any of the following
occurs, unless otherwise determined by the agency:
(i) When no longer needed for contract performance.
(ii) Upon completion of a contractor employee's employment.
(iii) Upon contract completion or termination.
(2) The contracting officer may delay final payment under a
contract if the contractor fails to comply with these requirements.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 52.204-9 by revising the date of the clause;
redesignating paragraph (b) as paragraph (d); adding a new paragraph
(b); adding paragraph (c); and revising newly redesignated paragraph
(d) to read as follows:
52.204-9 Personal Identity Verification of Contractor Personnel.
* * * * *
Personal Identity Verification of Contractor Personnel (JAN 2011)
* * * * *
(b) The Contractor shall account for all forms of Government-
provided identification issued to the Contractor employees in
connection with performance under this contract. The Contractor
shall return such identification to the issuing agency at the
earliest of any of the following, unless otherwise determined by the
Government:
(1) When no longer needed for contract performance.
(2) Upon completion of the Contractor employee's employment.
(3) Upon contract completion or termination.
(c) The Contracting Officer may delay final payment under a
contract if the Contractor fails to comply with these requirements.
(d) The Contractor shall insert the substance of this clause,
including this paragraph (d), in all subcontracts when the
subcontractor`s employees are required to have routine physical
access to a Federally-controlled facility and/or routine access to a
Federally-controlled information system. It shall be the
responsibility of the prime Contractor to return such identification
to the issuing agency in accordance with the terms set forth in
paragraph (b) of this section, unless otherwise approved in writing
by the Contracting Officer.
(End of Clause)
[FR Doc. 2010-32895 Filed 12-29-10; 8:45 am]
BILLING CODE 6820-EP-P