[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]
[DOCID:fr13de10-7]
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Part III
Department of Defense
General Services Administration
National Aeronautics and Space Administration
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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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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
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.
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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-
4755.
List of Rules in FAC 2005-47
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Item Subject FAR case Analyst
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I..................................... Notification of Employee 2010-006 McFadden.
Rights Under the National
Labor Relations Act
(Interim).
II.................................... HUBZone Program Revisions... 2006-005 Morgan.
III................................... Preventing Abuse of 2008-032 Sakalos.
Interagency Contracts
(Interim).
IV.................................... Small Disadvantaged Business 2009-019 Morgan.
Self-Certification (Interim).
V..................................... Uniform Suspension and 2009-036 Gary.
Debarment Requirement
(Interim).
VI.................................... Limitation on Pass-Through 2008-031 Chambers.
Charges.
VII................................... Technical Amendments.........
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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
acquisitions--
(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
Secretary.
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)
(Interim)
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
changes.
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
10.002.
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
Administration.
[FR Doc. 2010-30558 Filed 12-10-10; 8:45 am]
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