[Federal Register: March 19, 2009 (Volume 74, Number 52)]
[Rules and Regulations]
[Page 11829-11832]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr19mr09-21]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 26, 31, and 52
[FAC 2005-31; FAR Case 2008-017; Item V; Docket 2009-0007, Sequence 1]
RIN 9000-AL15
Federal Acquisition Regulation; FAR Case 2008-017, Federal Food
Donation Act of 2008
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Federal Food Donation Act of 2008 (Pub. L. 110-247) which encourages
executive agencies and their contractors, in contracts for the
provision, service, or sale of food, to the maximum extent practicable
and safe, to donate apparently wholesome excess food to nonprofit
organizations that provide assistance to food-insecure people in the
United States.
DATES: Effective Date: March 19, 2009.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before May 18, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-31, FAR case 2008-
017, by any of the following methods:
Regulations.gov: http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov.Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2008-017'' under the heading ``Comment or Submission''. Select the link
``Send a Comment or Submission'' that corresponds with FAR Case 2008-
017. Follow the instructions provided to complete the ``Public Comment
and Submission Form''. Please include your name, company name (if any),
and ``FAR Case 2008-017'' on your attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-31, FAR
case 2008-017, in all correspondence related to this case. All comments
received will be posted without change to http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Michael Jackson, Procurement Analyst,
at (202) 208-4949 for clarification of content. For information
pertaining to status or publication schedules, contact the FAR
Secretariat at (202) 501-4755. Please cite FAR case 2008-017.
SUPPLEMENTARY INFORMATION:
A. Background
The Federal Food Donation Act of 2008 (Pub. L. 110-247) (Act)
encourages Federal agencies and their contractors to donate excess food
to nonprofit organizations serving the needy. The Act requires Federal
contracts above $25,000 for the provision, service, or sale of food in
the United States, to include a clause that encourages, but does not
require, the donation of excess food to nonprofit organizations. The
Act would also extend to the Government and the contractor, when
donating food, the same civil or criminal liability protection provided
to donors of food under the Bill Emerson Good Samaritan Food Donation
Act of 1996.
The interim rule is applicable to contracts above $25,000 (greater
than $25,000) for the provision, service, or sale of food in the United
States (i.e., food supply or food service). The type of solicitations
and contract actions anticipated to be applicable to this law will
mostly be for fixed-price commercial services; however, there may be
circumstances when a noncommercial and/or cost reimbursement
requirement may apply. For example, on an indefinite-delivery,
indefinite-quantity (IDIQ) cost reimbursement contract for logistical
support to be performed in the United States, there may be a task order
needed to provide food service to feed personnel. This FAR change
applies to solicitations issued on or after the effective date of this
interim rule (see FAR 1.108(d)). Agencies will have to update their
automated contract systems to include the clause if the contract calls
for the provision, service, or sale of food in the United States. The
statute instructed that the FAR be revised to cover the lease or rental
of Federal property to a private entity for events at which food is
provided in the United States. However, the FAR covers the acquisition
of supplies and services (FAR 1.104), but does not cover the outlease
of real property. The GSA has jurisdiction over changes to the Federal
Management Regulation (FMR) and we anticipate a change in the FMR to
address this requirement. The proposed revisions are to the FAR parts
26, 31, and 52. The detailed explanation of the interim rule follows:
1. Part 26--Other Socioeconomic Programs: Adds a new Subpart 26.4,
Food Donations to Nonprofit Organizations.
a. The Councils anticipate that the majority of solicitation and
contract actions that may be applicable to this Act are fixed-price
commercial services; therefore, Subpart 26.4 is the most appropriate
place to implement this Act. This subpart applies to all contracts
greater than $25,000 for the provision, service, or sale of food in the
United States. Executive agencies and contractors are encouraged to
donate excess, apparently wholesome food to nonprofit organizations
that provide assistance to food-insecure people in the United States.
Instead of using ``above $25,000'' as stated in the Act, the rule uses
``greater than $25,000'' which is used throughout the FAR.
[[Page 11830]]
b. The definition section, FAR 26.401, adds four definitions from
the Act. These definitions are ``apparently wholesome food,'' ``excess
food,'' ``food-insecure'' and ``nonprofit organization''. The
definition for ``apparently wholesome food'' was expanded to
incorporate the language from section (b)(2) of the Bill Emerson Good
Samaritan Food Donation Act.
c. The policy section, FAR 26.402, states that the Government
encourages executive agencies and their contractors, to the maximum
extent practicable and safe, to donate excess apparently wholesome food
to nonprofit organizations that provide assistance to food-insecure
people in the United States.
d. The procedures section, FAR 26.403, provides the details
regarding encouraging donations by the contractor to nonprofit
organizations, costs and liability. For costs, it is stated that the
head of the executive agency shall not assume responsibility of the
related costs for the donation by the contractor to the nonprofit
organization, nor will the Government reimburse any costs incurred by
the contractor for donations of Federal excess food and states that
these costs are unallowable in accordance with the change to FAR
31.205-1(f)(8). Finally, for liability, the section states how the
executive agency and the contractor making donations pursuant to the
Act are exempt from the civil and criminal liability to the extent
provided under subsection (c) of the Bill Emerson Good Samaritan Food
Donation Act (42 U.S.C. 1791).
e. Section FAR 26.404 prescribes that the contracting officer shall
insert the clause in solicitations and contracts greater than $25,000
for the provision, service, or sale of food in the United States (i.e.,
food supply or food service).
2. Subpart 31.2, Contracts with Commercial Organizations: New
language is added to Subpart 31.2 -- Contracts with Commercial
Organizations, section 31.205, Selected Costs, and section FAR 31.205-
1, Public relations and advertising costs. FAR 31.205-1(e) lists
allowable public relations costs in paragraph (3) which includes the
costs of participating in community service activities. Since it is
possible to have a cost type contract that may include food supplies
and/or services and the Act specifically states that the head of the
executive agency shall not assume responsibility for the costs and
logistics of collecting, transporting, maintaining the safety of, or
distributing excess, apparently wholesome food to food-insecure people
in the United States under this Act, section 31.205-1(f), for
unallowable public relations and advertising costs adds paragraph (8)
to state any costs associated with the donation of excess food to
nonprofit organizations are unallowable.
3. Part 52--Solicitation Provisions and Contract clauses: Two
clauses are revised and one new clause is added.
a. FAR 52.212-5, Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Items, is revised.
This clause incorporates by reference only those clauses required to
implement provisions of law or executive orders applicable to the
acquisition of commercial items. Paragraph (c) allows the contracting
officer to indicate which, if any, of the additional clauses are
applicable to the specific acquisition. Paragraph (c)(7) adds the
clause 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations, if applicable, and the remaining clause is renumbered.
Also, in order to incorporate the subcontractor ``Flowdown'' provision
of the clause, paragraph (e) requires the Contractor to flow down
specific FAR clauses in a subcontract for commercial items. Paragraph
(e)(1)(xii) is revised to add the 52.226-6 clause and the remaining
clause is renumbered.
b. FAR 52.213-4, Terms and Conditions--Simplified Acquisitions
(Other Than Commercial Items), is revised. The contracting officer may
use the clause in simplified acquisitions exceeding the micro-purchase
threshold that is for other than commercial items. Paragraph (b)(2) of
the clause lists additional clauses that may apply. Paragraph
(b)(2)(iii) adds the clause 52.226-6, Promoting Excess Food Donation to
Nonprofit Organizations, if applicable, and the remaining clause is
renumbered.
c. FAR 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations, is a new clause.
Basic terms and conditions for 52.226-6: This clause fully
addresses the terms and conditions as the following: when it is
applicable, the contractor is encouraged to donate excess food to
nonprofit organizations; the contractor, including subcontractors,
shall assume all the related costs and support to donate the food and
the contractor will not be reimbursed for any costs incurred or
associated with the donation; that any costs incurred are unallowable;
and the contractor including any subcontractors shall be exempt from
civil and criminal liability to the extent provided under the Bill
Emerson Good Samaritan Food Donation Act (42 U.S.C. 1791).
Additional terms and conditions for 52.226-6: There are two
additional terms and conditions included in the clause that go beyond
the Act. In paragraph (d), Liability, the last sentence is added to
state that nothing in this clause shall be construed to supersede State
or local health regulations. This language was taken from the Bill
Emerson Good Samaritan Act. It makes it clear to the contractor that
they must comply with these regulations, too. In paragraph (e),
``Flowdown'' is added to encourage the subcontractors to participate in
the Federal excess food donation program for actions greater than
$25,000.
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 interim rule is not expected to 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 this
rule is not mandatory for contractors, including small businesses.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. The Councils will consider comments from small entities
concerning the affected FAR Parts 26, 31, and 52 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 2008-017), in
all correspondence.
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.
Chapter 35, et seq.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the provision of the Federal Food Donation Act of
2008 was enacted on June 20, 2008. The Act requires that the FAR be
revised to implement this Act no later
[[Page 11831]]
than 180 days after the date of enactment. The Councils believe that
the interim rule in the FAR will provide the Contracting Officer the
relevant regulatory guidance needed when addressing requirements
outlined in this rule. This interim rule is applicable to all
solicitations and contracts greater than $25,000 for the provision,
service, or sale of food in the United States issued on or after the
effective date of the rule. However, pursuant to Pub. L. 98-577 and FAR
1.501, the Councils will consider public comments received in response
to this interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 26, 31, and 52
Government procurement.
Dated: March 13, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 26, 31, and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 26, 31, 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 26--OTHER SOCIOECONOMIC PROGRAMS
0
2. Add Subpart 26.4 to read as follows:
Subpart 26.4--Food Donations to Nonprofit Organizations
Sec.
26.400 Scope of subpart.
26.401 Definitions.
26.402 Policy.
26.403 Procedures.
26.404 Contract clause.
26.400 Scope of subpart.
This section implements the Federal Food Donation Act of 2008 (Pub.
L. 110-247).
26.401 Definitions.
As used in this subpart--
Apparently wholesome food means food that meets all quality and
labeling standards imposed by Federal, State, and local laws and
regulations even though the food may not be readily marketable due to
appearance, age, freshness, grade, size, surplus, or other conditions,
in accordance with (b)(2)of the Bill Emerson Good Samaritan Food
Donation Act (42 U.S.C. 1791(b)).
Excess food means food that--
(1) Is not required to meet the needs of the executive agencies;
and
(2) Would otherwise be discarded.
Food-insecure means inconsistent access to sufficient, safe, and
nutritious food.
Nonprofit organization means any organization that is--
(1) Described in section 501(c) of the Internal Revenue Code of
1986; and
(2) Exempt from tax under section 501(a) of that Code.
26.402 Policy.
The Government encourages executive agencies and their contractors,
to the maximum extent practicable and safe, to donate excess apparently
wholesome food to nonprofit organizations that provide assistance to
food-insecure people in the United States.
26.403 Procedures.
(a) In accordance with the Federal Food Donation Act of 2008 (Pub.
L. 110-247) an executive agency shall comply with the following:
(1) Encourage donations. In the applicable contracts stated at
section 26.404, encourage contractors, to the maximum extent
practicable and safe, to donate apparently wholesome excess food to
nonprofit organizations that provide assistance to food-insecure people
in the United States.
(2) Costs. (i) In any case in which a contractor enters into a
contract with an executive agency under which apparently wholesome food
is donated to food-insecure people in the United States, the head of
the executive agency shall not assume responsibility for the costs and
logistics of collecting, transporting, maintaining the safety of, or
distributing excess, apparently wholesome food to food-insecure people
in the United States under this Act.
(ii) The Government will not reimburse any costs incurred by the
contractor against this contract or any other contract for the donation
of Federal excess foods. Any costs incurred for Federal excess food
donations are not considered allowable public relations costs in
accordance with 31.205-1(f)(8).
(3) Liability. An executive agency (including an executive agency
that enters into a contract with a contractor) and any contractor
making donations pursuant to this Act shall be exempt from civil and
criminal liability to the extent provided under the Bill Emerson Good
Samaritan Food Donation Act (42 U.S.C. 1791).
26.404 Contract clause.
Insert the clause at 52.226-6, Promoting Excess Food Donation to
Nonprofit Organizations, in solicitations and contracts greater than
$25,000 for the provision, service, or sale of food in the United
States.
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
0
3. Amend section 31.205-1 by revising paragraph (e)(3); and adding
paragraph (f)(8) to read as follows:
31.205-1 Public Relations and advertising costs.
(e) * * *
(3) Costs of participation in community service activities (e.g.,
blood bank drives, charity drives, savings bond drives, disaster
assistance, etc.) (But see paragraph (f)(8) of this section.)
* * * * *
(f) * * *
(8) Costs associated with the donation of excess food to nonprofit
organizations in accordance with the Federal Food Donation Act of 2008
(Pub. L. 110-247)(see FAR subpart 26.4).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraph (c)(7) as paragraph (c)(8); and adding a new
paragraph (c)(7); and
0
c. Redesignating paragraph (e)(1)(xii) as paragraph (e)(1)(xiii) and
adding a new paragraph (e)(1)(xii).
The revised and added text reads 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 (MAR 2009)
* * * * *
(c) * * *
(7) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations. (MAR 2009) (Pub. L. 110-247).
* * * * *
(e)(1) * * *
(xii) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations. (MAR 2009) (Pub. L. 110-247). Flow down required in
accordance with paragraph (e) of FAR clause 52.226-6.
* * * * *
0
5. Amend section 52.213-4 by--
0
a. Revising the date of the clause; and
0
b. Redesignating paragraphs (b)(2)(iii) and (b)(2)(iv) as paragraphs
(b)(2)(iv) and (b)(2)(v), respectively; and adding a new paragraph
(b)(2)(iii).
The revised and added text reads as follows:
[[Page 11832]]
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
TERMS AND CONDITIONS--SIMPLIFIED ACQUISITIONS (OTHER THAN
COMMERCIAL ITEMS) (MAR 2009)
* * * * *
(b) * * *
(2) * * *
(iii) 52.226-6, Promoting Excess Food Donation to Nonprofit
Organizations. (MAR 2009) (Pub. L. 110-247) (Applies to contracts
greater than $25,000 that provide for the provision, the service, or
the sale of food in the United States.)
* * * * *
0
6. Add section 52.226-6 to read as follows:
52.226-6 Promoting Excess Food Donation to Nonprofit Organizations.
As prescribed in 26.404, insert the following clause:
PROMOTING EXCESS FOOD DONATION TO NONPROFIT ORGANIZATIONS(MAR
2009)
(a) Definitions. As used in this clause--
Apparently wholesome food means food that meets all quality and
labeling standards imposed by Federal, State, and local laws and
regulations even though the food may not be readily marketable due
to appearance, age, freshness, grade, size, surplus, or other
conditions.
Excess food means food that--
(1) Is not required to meet the needs of the executive agencies;
and
(2) Would otherwise be discarded.
Food-insecure means inconsistent access to sufficient, safe, and
nutritious food.
Nonprofit organization means any organization that is--
(1) Described in section 501(c) of the Internal Revenue Code of
1986; and
(2) Exempt from tax under section 501(a) of that Code.
(b) In accordance with the Federal Food Donation Act of 2008
(Pub. L. 110-247), the Contractor is encouraged, to the maximum
extent practicable and safe, to donate excess, apparently wholesome
food to nonprofit organizations that provide assistance to food-
insecure people in the United States.
(c) Costs. (1) The Contractor, including any subcontractors,
shall assume the responsibility for all the costs and the logistical
support to collect, transport, maintain the safety of, or distribute
the excess, apparently wholesome food to the nonprofit
organization(s) that provides assistance to food-insecure people.
(2) The Contractor will not be reimbursed for any costs incurred
or associated with the donation of excess foods. Any costs incurred
for excess food donations are unallowable.
(d) Liability. The Government and the Contractor, including any
subcontractors, shall be exempt from civil and criminal liability to
the extent provided under the Bill Emerson Good Samaritan Food
Donation Act (42 U.S.C. 1791). Nothing in this clause shall be
construed to supersede State or local health regulations (subsection
(f) of 42 U.S.C. 1791).
(e) Flowdown. The Contractor shall insert this clause in all
contracts, task orders, delivery orders, purchase orders, and other
similar instruments greater than $25,000 with its subcontractors or
suppliers, at any tier, who will perform, under this contract, the
provision, service, or sale of food in the United States.
(End of clause)
[FR Doc. E9-5861 Filed 3-18-09; 8:45 am]
BILLING CODE 6820-EP-S