[Federal Register: March 31, 2009 (Volume 74, Number 60)]
[Rules and Regulations]
[Page 14621-14623]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr31mr09-17]
[[Page 14621]]
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Part II
General Services Administration
Department of Defense
National Aeronautics and Space Administration
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48 CFR Parts 1, 3, 4, et al.
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Federal Acquisition Regulations; Federal Acquisition Circular 2005-32;
FAR Case 2008-026; FAR Cases 2009-008, -009, -010, -011, and -012,
American Recovery and Reinvestment Act of 2009 (the Recovery Act);
Final Rules
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR-2009-0001, Sequence 3]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-32; Introduction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of final and interim rules, and technical
amendments and corrections.
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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 in this Federal Acquisition
Circular (FAC) 2005-32. 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://acquisition.gov/far.
DATES: For effective dates and comment dates, see separate documents
which follow.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
the analyst whose name appears in the table below in relation to each
FAR case or subject area. Please cite FAC 2005-32 and specific FAR case
number(s). Interested parties may also visit our Web site at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=http://acquisition.gov/far. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
List of Rules in FAC 2005-32
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Item Subject FAR case Analyst
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I................... American Recovery and Reinvestment Act of 2009 2009-008 Murphy.
(the Recovery Act)--Buy American Requirements
for Construction Material (Interim).
II.................. American Recovery and Reinvestment Act of 2009 2009-012 Parnell.
(the Recovery Act)--Whistleblower Protections
(Interim).
III................. American Recovery and Reinvestment Act of 2009 2009-010 Gary.
(the Recovery Act)--Publicizing Contract
Actions (Interim).
IV.................. American Recovery and Reinvestment Act of 2009 2009-009 Woodson.
(the Recovery Act)--Reporting Requirements
(Interim).
V................... American Recovery and Reinvestment Act of 2009 2009-011 Chambers.
(the Recovery Act)--GAO/IG Access (Interim).
VI.................. GAO Access to Contractor Employees (Interim).... 2008-026 Neurauter.
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SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the
actual revisions and/or amendments to these FAR cases, refer to the
specific item number and subject set forth in the documents following
these item summaries.
FAC 2005-32 amends the FAR as specified below:
Item I--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Buy American Requirements for Construction Material (Interim)
(FAR Case 2009-008)
This interim rule implements the Buy American provision, section
1605, of the American Recovery and Reinvestment Act of 2009. It
prohibits the use of funds appropriated for the Recovery Act for any
project for the construction, alteration, maintenance, or repair of a
public building or public work unless all of the iron, steel, and
manufactured goods used in the project are produced in the United
States. However, section 1605 requires that the Buy American
requirement be applied in a manner consistent with U.S. obligations
under international agreements. Moreover, because Congress intended
that least developed countries be excepted from section 1605, least
developed countries can continue to be treated as designated countries.
Section 1605 also provides for waivers under certain limited
circumstances.
Item II--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Whistleblower Protections (Interim) (FAR Case 2009-012)
Subpart 3.9 of the Federal Acquisition Regulation (FAR) is revised
to add section 3.907. Section 3.907 provides procedures for
whistleblower protection, when using funds appropriated or otherwise
provided by the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5).
Section 3.907 provides that non-Federal employers are prohibited
from discharging, demoting, or discriminating against employees as a
reprisal for disclosing certain covered information to certain
categories of Government officials. This section further provides
definitions relevant to the statute; establishes time periods within
which the Inspector General and the agency head must take action with
regard to a complaint filed by a contractor employee; establishes
procedures for access to investigative files of the Inspector General;
and provides for remedies and enforcement authority.
A new clause 52.203-15 is added to require contractors to post
rights and remedies for whistleblower protections under Section 1553 of
the American Recovery and Reinvestment Act.
Item III--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Publicizing Contract Actions (Interim) (FAR Case 2009-010)
This interim rule implements the Office of Management and Budget's
Guidance, M-09-10, ``Initial Implementing Guidance for the American
Recovery and Reinvestment Act of 2009,'' dated February 18, 2009,
section 6.2. Federal Acquisition Regulation (FAR) Part 4 requires the
contracting officer to enter data in the Federal Procurement Data
System on any action funded in whole or in part by the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), in accordance
with the instructions at http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fpds.gov. Subpart 5.7 is added to
direct the contracting officer to use the Governmentwide Point of Entry
(http://frwebgate.access.gpo.gov/cgi-bin/leaving.cgi?from=leavingFR.html&log=linklog&to=https://www.fedbizopps.gov) to (1) Identify the action as funded by
the Recovery Act; (2) post pre-award notices for orders exceeding
$25,000 for ``informational purposes only;'' (3) describe supplies and
services (including construction) in a narrative that is clear and
unambiguous to the general public; and (4) provide a rationale for
awarding any action, including modifications and orders, that is not
both fixed-price and competitive,
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and include the rationale for using other than a fixed-price and/or
competitive approach. Parts 8, 13, and 16 are amended to reflect the
new posting requirements for orders at Subpart 5.7.
Item IV--American Recovery and Reinvestment Act of 2009 (The Recovery
Act)--Reporting Requirements (Interim) (FAR Case 2009-009)
This interim rule implements section 1512 of Division A of the
American Recovery and Reinvestment Act of 2009, which requires
contractors to report on their use of Recovery Act funds. The rule adds
a new subpart 4.15, and a new clause, 52.204-11. Contracting officers
must include the new clause in solicitations and contracts funded in
whole or in part with Recovery Act funds, except classified
solicitations and contracts. This clause applies to Commercial item
contracts and Commercially-Available-Off-The-Shelf (COTS) item
contracts as well as actions under the Simplified Acquisition
Threshold.
Contracting officers who wish to use Recovery Act funds on existing
contracts should modify those contracts to add the clause.
Reports from contractors for all work funded, in whole or in part,
by the Recovery Act, and for which an invoice is submitted prior to
June 30, 2009, are due no later than July 10, 2009. Thereafter, reports
shall be submitted no later than the 10th day after the end of each
calendar quarter.
Item V--American Recovery and Reinvestment Act of 2009 (The Recovery
Act)--GAO/IG Access (Interim) (FAR Case 2009-011)
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils) are issuing an interim rule amending the
Federal Acquisition Regulation (FAR) to implement Sections 902, 1514,
and 1515 of the American Recovery and Reinvestment Act of 2009.
Collectively, these Sections provide for the audit and review of both
contracts and subcontracts, and the ability to interview such
contractor and subcontractor personnel under contracts containing
Recovery Act funds.
These Recovery Act provisions are implemented in new alternate
clauses to 52.212-5, ``Contract Terms and Conditions Required to
Implement Statutes orExecutive Orders--Commercial Items'', 52-214-26,
``Audit and Records--Sealed Bidding,'' and 52.215-2, ``Audit and
Records--Negotiation''. For the Comptroller General these alternate
clauses provide specific authority to audit contracts and subcontracts
and to interview contractor and subcontractor employees under contracts
using Recovery Act funds. Agency inspector generals receive the same
authorities, with the exception of interviewing subcontractor
employees.
Item VI--GAO Access to Contractor Employees (Interim) (FAR Case 2008-
026)
This interim rule amends the Federal Acquisition Regulation (FAR)
Parts 12 and 52. Clauses 52.215-2, Audit and Records--Negotiation and
52.214-26, Audit and Records--Sealed Bidding are being modified to
allow the Government Accountability Office to interview current
contractor employees when conducting audits. The rule will not apply to
the acquisition of commercial items; therefore, FAR 12.503 will be
amended to add the exemption of this rule. This change implements
Section 871 of the Duncan Hunter National Defense Authorization Act for
Fiscal Year 2009 (NDAA) (Pub. L. 110-417).
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Federal Acquisition Circular
Federal Acquisition Circular (FAC) 2005-32 is issued under the
authority of the Secretary of Defense, the Administrator of General
Services, and the Administrator for the National Aeronautics and Space
Administration.
Unless otherwise specified, all Federal Acquisition Regulation
(FAR) and other directive material contained in FAC 2005-32 is
effective March 31, 2009.
Dated: March 24, 2009.
Shay D. Assad,
Director, Defense Procurement And Acquisition Policy.
Dated: March 24, 2009.
Rodney P. Lantier,
Acting Senior Procurement Executive & Acting Deputy Chief
Acquisition Officer Office of the Chief Acquisition Officer U.S.
General Services Administration.
Dated: March 24, 2009.
William P. McNally,
Assistant Administrator for Procurement, National Aeronautics and
Space Administration.
[FR Doc. E9-7027 Filed 3-30-09; 8:45 am]
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