[Federal Register: March 19, 2009 (Volume 74, Number 52)]
[Rules and Regulations]
[Page 11827-11828]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr09-19]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 22
[FAC 2005-31; FAR Case 2008-014; Item III; Docket 2009-0006; Sequence
1]
RIN 9000-AL17
Federal Acquisition Regulation; FAR Case 2008-014, Amendments to
Incorporate New Wage Determinations
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 preclude a
possible scenario where a contracting officer has to unnecessarily
reevaluate proposals already eliminated from a competition.
DATES: Effective Date: April 20, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Ernest Woodson, Procurement Analyst, at (202) 501-3775. For
information pertaining to status or publication schedules, contact the
FAR Secretariat at (202) 501-4755. Please cite FAC 2005-31, FAR case
2008-014.
SUPPLEMENTARY INFORMATION:
A. Background
The Department of Labor (DOL) regulations set forth at 29 CFR
1.6(c)(2) and (3) require that, when contracting by negotiation, the
contracting agencies must place modified wage determinations (WDs) into
solicitations and contracts if the WDs are received before contract
award. FAR 22.404-6(c) establishes that when contracting by
negotiation, all written actions modifying WDs received by the
contracting agency before contract award, or modifications to general
WDs published on the Wage Determination Online (WDOL) before award,
shall be incorporated into the solicitation. If an effective WD is
received by the contracting officer before award, the contracting
officer shall follow the procedures in FAR 22.404-5(c)(3) or (4). FAR
22.404-5(c)(3) covers contracting by negotiation when the closing date
has passed; and it requires that a new WD with a changed wage rate must
be furnished as an amendment to all prospective offerors that submitted
proposals. There is an apparent inconsistency between this and FAR
15.206(c) which requires that amendments issued after closing shall be
issued to all offerors that have not been eliminated from the
competition.
This final rule amends the Federal Acquisition Regulation to
correct the inconsistency at FAR 22.404-5(c)(3) by changing the
language to indicate a contracting officer shall amend solicitations to
incorporate new wage determinations and furnish the wage rate
information to all offerors that have not been eliminated from the
competition, if the closing date for receipt of offers has already
passed.
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 Regulatory Flexibility Act does not apply to this rule. This
final rule does not constitute a significant FAR revision within the
meaning of FAR 1.501 and Public Law 98-577, and publication for public
comments is not required. However, the Councils will consider comments
from small entities concerning the affected FAR Part 22 in accordance
with 5 U.S.C. 610. Interested parties must submit such comments
separately and should cite 5 U.S.C. 601, et seq. (FAC 2005-31, FAR case
2008-014), in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply, because the final rule
does not impose information collection requirements that require the
approval of the Office of Management and Budget under 44 U.S.C. Chapter
35, et seq.
List of Subjects in 48 CFR Part 22
Government procurement.
Dated: March 13, 2009.
Al Matera,
Director, Office of Acquisition Policy.
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Therefore, DoD, GSA, and NASA amend 48 CFR part 22 as set forth below:
PART 22--APPLICATION OF LABOR LAWS TO GOVERNMENT ACQUISITION
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1. The authority citation for 48 CFR part 22 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).
[[Page 11828]]
22.404-5 [Amended]
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2. Amend section 22.404-5 in paragraph (c)(3) by removing ``submitted
proposals'' and adding ``have not been eliminated from the
competition'' in its place.
[FR Doc. E9-5873 Filed 3-17-09; 8:45 am]
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