[Federal Register: October 7, 2010 (Volume 75, Number 194)]
[Proposed Rules]
[Page 62069-62070]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr07oc10-26]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 25
[FAR Case 2009-041; Docket 2010-0105, Sequence 1]
RIN 9000-AL65
Federal Acquisition Regulation; Sudan Waiver Process
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (the Councils) are proposing to amend
the Federal Acquisition Regulation (FAR) to revise section 25.702,
Prohibition on contracting with entities that conduct restricted
business operations in Sudan, to add specific criteria that an agency
must address in a waiver request and a waiver consultation process
regarding foreign policy aspects of the waiver request for
consultations. This information will be provided, in a waiver request,
to the President or his appointed designee for consideration on whether
the prohibition on awarding a contract to a contractor that conducts
business in Sudan should be waived.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before December 6, 2010 to be considered
in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAR Case 2009-041 by any of
the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2009-041'' under the heading ``Enter Keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``FAR Case 2009-041.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``FAR Case 2009-041'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2009-
041, in all correspondence related to this case. All comments received
will be posted without change to http://www.regulations.gov, including
any personal and/or business confidential information provided.
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
Regulatory Secretariat at (202) 501-4755. Please cite FAR Case 2009-
041.
SUPPLEMENTARY INFORMATION:
A. Background
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (Councils) published a final rule, FAR Case 2008-
004, Prohibition on Restricted Business Operations in Sudan and Imports
from Burma, in the Federal Register at 74 FR 40463 on August 11, 2009,
amending the FAR to implement section 6 of the Sudan Accountability and
Divestment Act of 2007, Public Law 110-174. Section 6 requires
certification in each contract entered into by an Executive Agency that
the contractor does not conduct certain business operations in Sudan as
described in the act. Additionally, section 6 establishes the
President's authority to waive this requirement, on a case-by-case
basis, if the President determines and certifies in writing to the
appropriate congressional committees that it is in the national
interest to do so.
Section 6 of the Sudan Accountability and Divestment Act of 2007
was implemented in the FAR but did not include a waiver consultation
process and specific criteria for the waiver request. With the addition
of these changes, the FAR will provide consistent guidance on specific
criteria that must be included in the waiver request for consideration;
and establish a consultation process to ensure all waiver request are
reviewed by the appropriate agency experts.
The Councils propose to amend FAR 25.702-4 to add (1) waiver
criteria that agencies must address when requesting a waiver to enter
into a contract with a firm that conducts restricted business
operations in Sudan that will include specific criteria for the waiver
request; and (2) a waiver consultation process that will require all
requests to be submitted through the Office of Federal Procurement
Policy (OFPP) to the President or his appointed designee for
consideration. OFPP will be required to consult with the President's
National Security Council, Office of African Affairs and the Department
of State Sudan Office and Sanctions Office on foreign policy matters
relevant to the waiver request and include this information in the
recommendation to the President. All waiver requests must clearly
explain why the product or service must be procured from the offeror
for which the waiver is requested and why it is in the national
interest to waive the statutory prohibition against contracting with an
offeror that conducts prohibited business operations in Sudan. In
addition, the waiver request must address any humanitarian efforts
engaged in by the offeror, the human rights impact of doing business
with that offeror, and the extent of the offeror's business operations
in Sudan. All of the information required to be included in the waiver
request will be considered in determining whether to recommend that the
President waive the prohibition.
Additionally, individual and class waiver requests will be
considered for a specific contract or class of contracts, as long as
the waiver request has been reviewed and cleared by the agency head
prior to submitting it to OFPP and the request includes the appropriate
waiver information specified at FAR 25.702-4(c)(3). However, a waiver
will not be issued for an indefinite period of time, and may be
cancelled, if warranted.
In accordance with section 6 of the Sudan Accountability and
Divestment Act of 2007, the Administrator of Federal Procurement Policy
is required to submit semiannual reports, on April 15th and October
15th, to Congress, on waivers approved by the President. OFPP has
submitted two reports to Congress since the publication of the first
rule, FAR Case 2008-004, Prohibition on Restricted Business Operations
in Sudan and Imports from Burma, but is proposing to include this
reporting requirement in the FAR to emphasize this waiver process and
reporting requirement.
This is a significant regulatory action and, therefore, was subject
to review under section 6 of Executive Order 12866, Regulatory Planning
and Review,
[[Page 62070]]
dated September 30, 1993. This rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The Councils do not expect this proposed rule 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 the rule does not impose any additional requirements on small
businesses. An Initial Regulatory Flexibility Analysis has, therefore,
not been performed. The Councils invite comments from small business
concerns and other interested parties on the expected impact of this
rule on small entities.
The Councils will also consider comments from small entities
concerning the existing regulations in parts affected by this rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAR Case 2000-041) in
all correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the proposed
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 Part 25
Government procurement.
Dated: September 28, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 25 as
set forth below:
PART 25--FOREIGN ACQUISITION
1. The authority citation for 48 CFR part 25 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).
2. Amend section 25.702-4 by revising paragraph (b), and adding
paragraphs (c) and (d) to read as follows:
25.702-4 Waiver.
* * * * *
(b) An agency seeking waiver of the requirement shall submit the
request through the Administrator of the Office of Federal Procurement
Policy (OFPP), allowing sufficient time for review and approval. Upon
receipt of the waiver request, OFPP shall consult with the President's
National Security Council, Office of African Affairs, and the
Department of State Sudan Office and Sanctions Office to assess foreign
policy aspects of making a national interest recommendation.
(c) Agencies may request a waiver on an individual or class basis;
however, waivers are not indefinite and can be cancelled if warranted.
(1) A class waiver may be requested only when the class of supplies
is not available from any other source and it is in the national
interest.
(2) Prior to submitting the waiver request, the request must be
reviewed and cleared by the agency head.
(3) All waiver requests must include the following information:
(i) Agency name, complete mailing address, and point of contact
name, telephone number, and e-mail address.
(ii) Offeror's name, complete mailing address, and point of contact
name, telephone number, and e-mail address.
(iii) Description/nature of product or service.
(iv) The total cost and length of the contract.
(v) Justification, with market research demonstrating that no other
offeror can provide the product or service and stating why the product
or service must be procured from this offeror, as well as why it is in
the national interest for the President to waive the prohibition on
contracting with this offeror that conducts restricted business
operations in Sudan, including consideration of foreign policy aspects
identified in consultation(s) pursuant to 25.702-4(b).
(vi) Documentation regarding the offeror's past performance and
integrity (see the Past Performance Information Retrieval System
(including the Federal Awardee Performance Information and Integrity
System at http://www.ppirs.gov) and any other relevant information).
(vii) Information regarding the offeror's relationship or
connection with other firms that conduct prohibited business operations
in Sudan.
(viii) Any humanitarian efforts engaged in by the offeror, the
human rights impact of doing business with the offeror for which the
waiver is requested, and the extent of the offeror's business
operations in Sudan.
(d) The consultation in 25.702-4(b) and the information in 25.702-
4(c)(3) will be considered in determining whether to recommend that the
President waive the requirement of subsection 25.702-2. In accordance
with section 6(c) of the Sudan Accountability and Divestment Act of
2007, OFPP will submit a report to Congress, semiannually on April 15th
and October 15th, on the waivers granted.
[FR Doc. 2010-25266 Filed 10-6-10; 8:45 am]
BILLING CODE 6820-EP-P