[Federal Register: October 14, 2009 (Volume 74, Number 197)]
[Rules and Regulations]
[Page 52851-52852]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc09-13]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 12 and 52
[FAC 2005-37; FAR Case 2008-026; Item III; Docket 2009-0013, Sequence
1]
RIN 9000-AL25
Federal Acquisition Regulation; FAR Case 2008-026, GAO Access to
Contractor Employees
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 adopted as final,
without change, an interim rule amending the Federal Acquisition
Regulation (FAR) to implement section 871 of the Duncan Hunter National
Defense Authorization Act for Fiscal Year 2009 (NDAA) which allows the
Government Accountability Office to interview current contractor
employees during the audit of the contractor's records.
DATES: Effective Date: October 14, 2009.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Mr. Edward Loeb, Director, Contract Policy Division at (202) 501-0650.
For information pertaining to status or publication schedules, contact
the Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-37,
FAR case 2008-026.
SUPPLEMENTARY INFORMATION:
A. Background
Section 871 of the Duncan Hunter National Defense Authorization Act
for Fiscal Year 2009 (NDAA) (Pub. L. 110-417) added language allowing
the Comptroller General to interview current employees regarding
transactions being examined during an audit of contracting records. The
Act revises 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1) by inserting
before the period: ``and to interview any current employee regarding
such transactions''. To implement the Act, FAR clauses 52.215-2, Audit
and Records--Negotiation, and 52.214-26, Audit and Records--Sealed
Bidding, were amended to add the required statutory language. The
statute did not specify that section 871 apply to commercial item
contracts and therefore was not applied to FAR clause 52.212-5,
Contract Terms and Conditions Required to Implement Statutes or
Executive Order--Commercial Items. Section 34 of the Office of Federal
Procurement Policy Act (OFPP), 41 U.S.C. 430, exempts commercial item
acquisitions from new provisions of law, such as section 871, unless
(1) the law provides criminal or civilian penalties, (2) the law
expressly refers to 41 U.S.C. 430 and states that it applies to
commercial item contracts, or (3) the FAR Council makes a written
determination that it would not be in the best interest of the Federal
Government to exempt commercial item contracts. Thus, this new
provision was added to the list of inapplicable laws at FAR 12.503(a).
DoD, GSA, and NASA published an interim rule with a request for
comments in the Federal Register at 74 FR 14649 on March 31, 2009. No
comments were received. The interim rule is converted to a final rule
without change.
This is a significant regulatory action and, therefore, was subject
to review under section 6(b) of Executive Order 12886, 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 only a small number of
small businesses are audited by the Government Accountability Office
(GAO). Currently
[[Page 52852]]
many GAO audits of small business contractors include contractor
employee interviews. This Act is designed to cover those incidents in
which the contractor does not voluntarily make the contractor employees
available for interviews. Therefore, it is not anticipated that
interviewing any current employee regarding such contract transactions
will have a significant impact.
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.
List of Subjects in 48 CFR Parts 12 and 52
Government procurement.
Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.
Interim Rule Adopted as Final Without Change
0
Accordingly, the interim rule amending 48 CFR parts 12 and 52, which
was published in the Federal Register at 74 FR 14649 on March 31, 2009,
is adopted as a final rule without change.
[FR Doc. E9-24568 Filed 10-13-09; 8:45 am]
BILLING CODE 6820-EP-S