[Federal Register: October 14, 2009 (Volume 74, Number 197)]
[Rules and Regulations]
[Page 52845-52847]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr14oc09-10]
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Part II
Department of Defense
General Services Administration
National Aeronautics and Space Administration
48 CFR Chapter 1, Parts 2, 4, 5, et al.
Federal Acquisition Regulation; 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 8]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-37; Introduction
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Summary presentation of rules.
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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) 2005-37. 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://www.regulations.gov.
DATES: For effective dates and comment dates, see separate documents,
which follow.
FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the
table below in relation to each FAR case. Please cite FAC 2005-37 and
the specific FAR case numbers. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
List of Rules in FAC 2005-37
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Item Subject FAR case Analyst
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I.............. Registry of Disaster Response Contractors 2008-035 Loeb.
(Interim).
II............. Limiting Length of Noncompetitive Contracts 2007-008 Woodson.
in ``Unusual and Compelling Urgency''
Circumstances.
III............ GAO Access to Contractor Employees........... 2008-026 Loeb.
IV............. Use of Commercial Services Item Authority 2008-034 Chambers.
(Interim).
V.............. Limitations on Pass-Through Charges (Interim) 2008-031 Chambers.
VI............. Award Fee Language Revision (Interim)........ 2008-008 Chambers.
VII............ National Response Framework.................. 2009-003 Loeb.
VIII........... Technical Amendments......................... ....................... .......................
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SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the
actual revisions and/or amendments made by these FAR cases, refer to
the specific item number and subject set forth in the documents
following these item summaries.
FAC 2005-37 amends the FAR as specified below:
Item I--Registry of Disaster Response Contractors (FAR Case 2008-035)
(Interim)
This interim rule amends the FAR at parts 2, 4, 7, 10, 13, 18, 26,
and 52 to implement the Registry of Disaster Response Contractors
provision, section 697 of the Department of Homeland Security (DHS)
Appropriations Act, 2007 (6 U.S.C. 796).
The Act requires that the Federal Emergency Management Agency
(FEMA) establish and maintain this registry. It also requires that the
registry include business information consistent with the data that is
currently required in the Central Contractor Registration (CCR) with
two additional categories added to reflect the area served by the
business, and the bonding level of the business concern. The CCR has
been updated to include these changes. In addition, the FEMA website
has been updated with a link to the CCR search feature which provides
access to the disaster response registry. Contracting officers will be
required to consult this registry during market research and
acquisition planning.
Item II--Limiting Length of Noncompetitive Contracts in ``Unusual and
Compelling Urgency'' Circumstances (FAR Case 2007-008)
This final rule amends the FAR to require that contracts awarded
under the authority of FAR 6.302-2, Unusual and compelling urgency, may
not exceed the time necessary to meet the unusual and compelling
requirements, may not exceed the time for the agency to enter into
another contract for the required goods and services through the use of
competitive procedures, and may not exceed one year unless the head of
the agency entering into the contract determines that exceptional
circumstances apply. The determination may be made after contract award
when making the determination prior to award would unnecessarily delay
the award. The rule applies to any contract in an amount greater than
the simplified acquisition threshold. The rule implements the
requirements of section 862 of the Duncan Hunter National Defense
Authorization Act (NDAA) for Fiscal Year 2009 (Pub. L. 110-417). The
rule is intended to strengthen Federal acquisition competition
policies.
Item III--GAO Access to Contractor Employees (FAR Case 2008-026)
This final rule converts the interim rule published in the Federal
Register at 74 FR 14649, March 31, 2009, to a final rule without
change. The interim rule amended FAR 52.215-2, Audits and Records--
Negotiation, and FAR 52.214-26, Audit and Records--Sealed Bidding, to
allow the Government Accountability Office to interview current
contractor employees when conducting audits. The rule does not apply to
the acquisition of commercial items; therefore, FAR 12.503 was amended
to add the exemption of this rule. This change implemented section 871
of the Duncan Hunter NDAA for Fiscal Year 2009 (Pub. L. 110-417).
Item IV--Use of Commercial Services Item Authority (FAR Case 2008-034)
(Interim)
This interim rule amends the FAR to implement section 868 of the
Duncan Hunter NDAA for Fiscal Year 2009 (Pub. L. 110-417). Section 868
provides that the FAR shall be amended with respect to the procurement
of commercial services that are not offered and sold competitively in
substantial quantities in the commercial marketplace, but are of a type
offered and sold competitively in substantial quantities in the
commercial marketplace. Such services may be considered commercial
items
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only if the contracting officer has determined in writing that the
offeror has submitted sufficient information to evaluate, through price
analysis, the reasonableness of the price for these services.
The rule details the information the contracting officer may
consider in order to make this determination. The rule further details,
when this determination cannot be made, the information which may be
requested to determine price reasonableness.
Item V--Limitations on Pass-Through Charges (FAR Case 2008-031)
(Interim)
This interim rule implements section 866 of the Duncan Hunter NDAA
for Fiscal Year 2009 (Pub. L. 110-417) and section 852 of the John
Warner NDAA for Fiscal Year 2007 (Pub. L. 109-364). Section 866
requires the Councils to amend the FAR to minimize excessive pass-
through charges by contractors from subcontractors, or of tiers of
subcontractors, that add no or negligible value, and to ensure that
neither a contractor nor a subcontractor receives indirect costs or
profit/fee (i.e., pass-through charges) on work performed by a lower-
tier subcontractor to which the higher-tier contractor or subcontractor
adds no, or negligible, value.
To enable agencies to ensure that pass-through charges are not
excessive, this interim rule includes a solicitation provision and a
contract clause requiring offerors and contractors to identify the
percentage of work that will be subcontracted, and when subcontract
costs will exceed 70 percent of the total cost of work to be performed,
to provide information on indirect costs and profit/fee and value added
with regard to the subcontract work.
Item VI--Award Fee Language Revision (FAR Case 2008-008) (Interim)
This interim rule amends the FAR to implement section 814 of the
John Warner NDAA of Fiscal Year 2007 (Pub. L. 109-364) and section 867
of the Duncan Hunter NDAA of Fiscal Year 2009 (Pub. L. 110-417). This
rule requires agencies to--
(1) Link award fees to acquisition objectives in the areas of cost,
schedule, and technical performance;
(2) Clarify that a base fee amount greater than zero may be
included in a cost plus award fee type contract at the discretion of
the contracting officer;
(3) Prescribe narrative ratings that will be utilized in award fee
evaluations;
(4) Prohibit the issuance of award fees for a rating period if the
contractor's performance is judged to be below satisfactory;
(5) Conduct a risk and cost benefit analysis and consider the
results of the analysis when determining whether to use an award-fee
type contract or not;
(6) Include specific content in the award-fee plans; and
(7) Prohibit the rolling over of unearned award fees to subsequent
rating periods.
This FAR change will integrate where appropriate, FAR part 7,
Acquisition Planning, and FAR part 16, Contract Types, to improve
agency use and decision making when using incentive contracts.
Item VII--National Response Framework (FAR Case 2009-003)
This final rule amends the FAR part 18 to remove all references to
the National Response Plan (NRP) and Incidents of National
Significance. In January 2008, FEMA, a component within the DHS,
reissued the NRP as the National Response Framework (NRF). With the
reissuance, the term ``Incidents of National Significance'' was
eliminated. The changes became effective on March 22, 2008. Both the
NRP and the term ``Incidents of National Significance'' are now
obsolete.
This rule is informational and represents minor updates for
consistency with FEMA references.
FEMA provides a link at their website for Frequently Asked
Questions that explain the rationale for and the changes to the NRF.
This rule does not have a significant impact on Government or any
automated systems.
Item VIII--Technical Amendments
Editorial changes are made at FAR 5.102, 52.213-4, and 52.244-6.
Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.
Federal Acquisition Circular
Federal Acquisition Circular (FAC) 2005-37 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 2005-37 is
effective October 14, 2009, except for Item VII, which is effective
November 13, 2009.
Dated: October 5, 2009.
Shay D. Assad,
Director, Defense Procurement and Acquisition Policy.
Dated: October 2, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, U.S.
General Services Administration.
Dated: October 6, 2009.
Leigh Pomponio,
Procurement Analyst, National Aeronautics and Space Administration.
[FR Doc. E9-24551 Filed 10-13-09; 8:45 am]
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