[Federal Register: May 22, 2003 (Volume 68, Number 99)]
[Rules and Regulations]
[Page 28096-28098]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr22my03-25]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 52
[FAC 2001-14; FAR Case 2000-009; Item VII]
RIN 9000-AJ34
Federal Acquisition Regulation; Contract Terms and Conditions
Required To Implement Statute or Executive Orders--Commercial Items
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on a final rule
amending the Federal Acquisition Regulation (FAR) to update the clause
regarding commercial items contract terms and conditions required to
implement statute or Executive orders.
DATES: Effective Date: June 23, 2003.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAC 2001-14, FAR case 2000-009.
SUPPLEMENTARY INFORMATION:
A. Background
Federal Acquisition Regulation Part 12, Acquisition of Commercial
Items, was developed to implement Title VIII of the Federal Acquisition
Streamlining Act of 1994 (FASA) (Pub. L. 103-355). The regulations
became effective on October 1, 1995. Several areas have been identified
that need updating and clarification. This rule addresses some of those
changes.
[[Page 28097]]
The list of contract terms and conditions required to implement
statutes or Executive orders in the clause at FAR 52.212-5, Contract
Terms and Conditions Required to Implement Statutes or Executive
Orders--Commercial Items, is amended to ensure that required statutes
enacted subsequent to FASA that contain civil or criminal penalties or
specifically cite their applicability to commercial items are included
on the list, and to ensure that any post-FASA items that did not meet
this criteria are deleted from the list. In addition, the pre-FASA
clauses and alternates that were inadvertently left off the list are
added. The date of each clause is added to the list to identify what
revision of the listed clause applies when this clause is added to a
contract.
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 67 FR 13076, March 20, 2002. The 60-day comment period
ended May 20, 2002. Two sources submitted comments on the proposed
rule. Both comments suggested revisions to paragraph 52.212-5(e) to
clarify flow-down requirements. Accordingly, paragraph 52.212-5(e) is
revised in the final rule to flow down clauses that are applicable to
the subcontract and required to implement statute or Executive order.
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 rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration 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 a new policy requirement on small entities. The changes made by
the rule update clause references, clarify language, and do not change
existing policy.
C. 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.
3501, et seq.
List of Subjects in 48 CFR Part 52
Government procurement.
Dated: May 13, 2003.
Laura G. Smith,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
1. The authority citation for 48 CFR part 52 is revised 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 52.212-5 by revising the date of the clause and
paragraphs (a), (b), (c), and (e) to read as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
Contract Terms and Conditions Required To Implement Statutes or
Executive Orders--Commercial Items (June 2003)
(a) The Contractor shall comply with the following Federal
Acquisition Regulation (FAR) clause, which is incorporated in this
contract by reference, to implement provisions of law or Executive
orders applicable to acquisitions of commercial items: 52.233-3,
Protest after Award (AUG 1996) (31 U.S.C. 3553).
(b) The Contractor shall comply with the FAR clauses in this
paragraph (b) that the Contracting Officer has indicated as being
incorporated in this contract by reference to implement provisions
of law or Executive orders applicable to acquisitions of commercial
items: [Contracting Officer check as appropriate.]
--(1) 52.203-6, Restrictions on Subcontractor Sales to the
Government (JUL 1995), with Alternate I (OCT 1995) (41 U.S.C. 253g
and 10 U.S.C. 2402).
--(2) 52.219-3, Notice of Total HUBZone Set-Aside (JAN 1999) (15
U.S.C. 657a).
--(3) 52.219-4, Notice of Price Evaluation Preference for
HUBZone Small Business Concerns (JAN 1999) (if the offeror elects to
waive the preference, it shall so indicate in its offer) (15 U.S.C.
657a).
--(4)(i) 52.219-5, Very Small Business Set-Aside (JUNE 2003)
(Pub. L. 103-403, section 304, Small Business Reauthorization and
Amendments Act of 1994).
--(ii) Alternate I (MAR 1999) of 52.219-5.
--(iii) Alternate II (JUNE 2003) of 52.219-5.
--(5)(i) 52.219-6, Notice of Total Small Business Set-Aside
(JUNE 2003) (15 U.S.C. 644).
--(ii) Alternate I (OCT 1995) of 52.219-6.
--(6)(i) 52.219-7, Notice of Partial Small Business Set-Aside
(JUNE 2003) (15 U.S.C. 644).
--(ii) Alternate I (OCT 1995) of 52.219-7.
--(7) 52.219-8, Utilization of Small Business Concerns (OCT
2000) (15 U.S.C. 637 (d)(2) and (3)).
--(8)(i) 52.219-9, Small Business Subcontracting Plan (JAN 2002)
(15 U.S.C. 637(d)(4)).
--(ii) Alternate I (OCT 2001) of 52.219-9.
--(iii) Alternate II (OCT 2001) of 52.219-9.
--(9) 52.219-14, Limitations on Subcontracting (DEC 1996) (15
U.S.C. 637(a)(14)).
--(10)(i) 52.219-23, Notice of Price Evaluation Adjustment for
Small Disadvantaged Business Concerns (JUNE 2003) (Pub. L. 103-355,
section 7102, and 10 U.S.C. 2323) (if the offeror elects to waive
the adjustment, it shall so indicate in its offer).
--(ii) Alternate I (JUNE 2003) of 52.219-23.
--(11) 52.219-25, Small Disadvantaged Business Participation
Program--Disadvantaged Status and Reporting (OCT 1999) (Pub. L. 103-
355, section 7102, and 10 U.S.C. 2323).
--(12) 52.219-26, Small Disadvantaged Business Participation
Program--Incentive Subcontracting (OCT 2000) (Pub. L. 103-355,
section 7102, and 10 U.S.C. 2323).
--(13) 52.222-3, Convict Labor (JUNE 2003) (E.O. 11755).
--(14) 52.222-19, Child Labor--Cooperation with Authorities and
Remedies (SEP 2002) (E.O. 13126).
--(15) 52.222-21, Prohibition of Segregated Facilities (FEB
1999).
--(16) 52.222-26, Equal Opportunity (APR 2002) (E.O. 11246).
--(17) 52.222-35, Equal Opportunity for Special Disabled
Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans
(DEC 2001) (38 U.S.C. 4212).
--(18) 52.222-36, Affirmative Action for Workers with
Disabilities (JUN 1998) (29 U.S.C. 793).
--(19) 52.222-37, Employment Reports on Special Disabled
Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans
(DEC 2001) (38 U.S.C. 4212).
--(20)(i) 52.223-9, Estimate of Percentage of Recovered Material
Content for EPA-Designated Products (AUG 2000) (42 U.S.C.
6962(c)(3)(A)(ii)).
--(ii) Alternate I (AUG 2000) of 52.223-9 (42 U.S.C.
6962(i)(2)(C)).
--(21) 52.225-1, Buy American Act--Supplies (JUNE 2003) (41
U.S.C. 10a-10d).
--(22)(i) 52.225-3, Buy American Act--North American Free Trade
Agreement--Israeli Trade Act (JUNE 2003) (41 U.S.C. 10a-10d, 19
U.S.C. 3301 note, 19 U.S.C. 2112 note).
--(ii) Alternate I (MAY 2002) of 52.225-3.
--(iii) Alternate II (MAY 2002) of 52.225-3.
--(23) 52.225-5, Trade Agreements (JUNE 2003) (19 U.S.C. 2501,
et seq., 19 U.S.C. 3301 note).
--(24) 52.225-13, Restrictions on Certain Foreign Purchases
(JUNE 2003) (E.O. 12722, 12724, 13059, 13067, 13121, and 13129).
--(25) 52.225-15, Sanctioned European Union Country End Products
(FEB 2000) (E.O. 12849).
--(26) 52.225-16, Sanctioned European Union Country Services
(FEB 2000) (E.O. 12849).
--(27) 52.232-29, Terms for Financing of Purchases of Commercial
Items (FEB 2002) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).
--(28) 52.232-30, Installment Payments for Commercial Items (OCT
1995) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).
[[Page 28098]]
--(29) 52.232-33, Payment by Electronic Funds Transfer--Central
Contractor Registration (MAY 1999) (31 U.S.C. 3332).
--(30) 52.232-34, Payment by Electronic Funds Transfer--Other
than Central Contractor Registration (MAY 1999) (31 U.S.C. 3332).
--(31) 52.232-36, Payment by Third Party (MAY 1999) (31 U.S.C.
3332).
--(32) 52.239-1, Privacy or Security Safeguards (AUG 1996) (5
U.S.C. 552a).
--(33)(i) 52.247-64, Preference for Privately Owned U.S.-Flag
Commercial Vessels (APR 2003) (46 U.S.C. Appx 1241 and 10 U.S.C.
2631).
--(ii) Alternate I (APR 1984) of 52.247-64.
(c) The Contractor shall comply with the FAR clauses in this
paragraph (c), applicable to commercial services, that the
Contracting Officer has indicated as being incorporated in this
contract by reference to implement provisions of law or Executive
orders applicable to acquisitions of commercial items: [Contracting
Officer check as appropriate.]
--(1) 52.222-41, Service Contract Act of 1965, as Amended (MAY
1989) (41 U.S.C. 351, et seq.).
--(2) 52.222-42, Statement of Equivalent Rates for Federal Hires
(MAY 1989) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).
--(3) 52.222-43, Fair Labor Standards Act and Service Contract
Act--Price Adjustment (Multiple Year and Option Contracts) (MAY
1989) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).
--(4) 52.222-44, Fair Labor Standards Act and Service Contract
Act--Price Adjustment (February 2002) (29 U.S.C. 206 and 41 U.S.C.
351, et seq.).
--(5) 52.222-47, SCA Minimum Wages and Fringe Benefits
Applicable to Successor Contract Pursuant to PreDecemberessor
Contractor Collective Bargaining Agreements (CBA) (May 1989) (41
U.S.C. 351, et seq.).
* * * * *
(e)(1) Notwithstanding the requirements of the clauses in
paragraphs (a), (b), (c), and (d) of this clause, the Contractor is
not required to flow down any FAR clause, other than those in
paragraphs (i) through (vi) of this paragraph in a subcontract for
commercial items. Unless otherwise indicated below, the extent of
the flow down shall be as required by the clause--
(i) 52.219-8, Utilization of Small Business Concerns (October
2000) (15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer
further subcontracting opportunities. If the subcontract (except
subcontracts to small business concerns) exceeds $500,000
($1,000,000 for construction of any public facility), the
subcontractor must include 52.219-8 in lower tier subcontracts that
offer subcontracting opportunities.
(ii) 52.222-26, Equal Opportunity (April 2002) (E.O. 11246).
(iii) 52.222-35, Equal Opportunity for Special Disabled
Veterans, Veterans of the Vietnam Era, and Other Eligible Veterans
(December 2001) (38 U.S.C. 4212).
(iv) 52.222-36, Affirmative Action for Workers with Disabilities
(June 1998) (29 U.S.C. 793).
(v) 52.222-41, Service Contract Act of 1965, as Amended (May
1989), flow down required for all subcontracts subject to the
Service Contract Act of 1965 (41 U.S.C. 351, et seq.).
(vi) 52.247-64, Preference for Privately Owned U.S.-Flag
Commercial Vessels (April 2003) (46 U.S.C. Appx 1241 and 10 U.S.C.
2631). Flow down required in accordance with paragraph (d) of FAR
clause 52.247-64.
(2) While not required, the contractor May include in its
subcontracts for commercial items a minimal number of additional
clauses necessary to satisfy its contractual obligations.
(End of clause)
* * * * *
[FR Doc. 03-12307 Filed 5-21-03; 8:45 am]