[Federal Register: December 30, 2010 (Volume 75, Number 250)]
[Proposed Rules]
[Page 82576-82577]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr30de10-25]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 49
[FAC 2005-48; FAR Case 2009-031; Item III; Docket 2010-0090, Sequence
1]
RIN 9000-AL56
Federal Acquisition Regulation; Terminating Contracts
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 clarify the applicability of
procedures regarding the termination of contracts to the acquisition of
commercial items.
DATES: Effective Date: January 31, 2011.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Jeritta Parnell, at (202) 501-4082. For information pertaining to
status or publication schedules, contact the Regulatory Secretariat at
(202) 501-4755. Please cite FAC 2005-48, FAR Case 2009-031.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule with request for
comments in the Federal Register on May 20, 2010 (75 FR 28228). This
rule clarifies that FAR part 49, Termination of Contracts, does not
apply to the acquisition of commercial items when using FAR part 12
procedures.
Discussion of Public Comments
One respondent provided two comments. A discussion of the comments
and the changes made to the proposed rule are summarized as follows:
1. Comment: The respondent recommended clarifying the coverage at
FAR 49.501 by moving the existing language to FAR 49.002. This language
clarifies that FAR part 49 does not apply to commercial item contracts
awarded using FAR part 12 procedures.
Response: The Defense Acquisition Regulation Council and the
Civilian Agency Acquisition Council (Councils) agree. The language at
FAR 49.501, pertaining to the applicability of FAR part 49 to
commercial item contracts has
[[Page 82577]]
been relocated to FAR 49.002. FAR 49.002(a) is reformatted by adding
``(1)'' to existing language for sequencing. Additionally, new language
was added in (a)(2) to clarify that FAR part 49 does not apply to the
acquisition of commercial items when using procedures at FAR part 12.
2. Comment: The respondent recommends simplifying FAR 49.502(a) by
removing and relocating the reference to the exceptions for FAR 52.212-
4 and 52.213-4 to FAR 49.002.
Response: The Councils agree. The language pertaining to FAR
52.212-4 was relocated to FAR 49.002 as addressed under the first
comment. Reference to FAR 52.213-4 remains in FAR 49.501.
II. Executive Order 12866
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This is not a
major rule under 5 U.S.C. 804.
III. 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 rule does not impose any additional requirements on
small entities. The rule merely clarifies that FAR part 49 does not
apply to the acquisition of commercial items when using procedures in
FAR part 12.
IV. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 49
Government procurement.
Dated: December 22, 2010.
Millisa Gary,
Acting Director, Federal Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 49 as set forth below:
PART 49--TERMINATION OF CONTRACTS
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1. The authority citation for 48 CFR part 49 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).
0
2. Amend section 49.002 by revising paragraph (a) to read as follows:
49.002 Applicability.
(a)(1) This part applies to contracts that provide for termination
for the convenience of the Government or for the default of the
contractor (see also 12.403 and 13.302-4).
(2) This part does not apply to commercial item contracts awarded
using part 12 procedures. See 12.403 for termination policies for
contracts for the acquisition of commercial items. However, for
contracts for the acquisition of commercial items, this part provides
administrative guidance which may be followed unless it is inconsistent
with the requirements and procedures in 12.403, Termination, and the
clause at 52.212-4, Contract Terms and Conditions--Commercial Items.
* * * * *
0
3. Revise section 49.501 to read as follows:
49.501 General.
This subpart prescribes the principal contract termination clauses.
This subpart does not apply to contracts that use the clause at 52.213-
4, Terms and Conditions--Simplified Acquisitions (Other Than Commercial
Items). In appropriate cases, agencies may authorize the use of special
purpose clauses, if consistent with this chapter.
[FR Doc. 2010-32893 Filed 12-29-10; 8:45 am]
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