[Federal Register: June 16, 2010 (Volume 75, Number 115)]
[Rules and Regulations]
[Page 34291-34293]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr16jn10-29]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2010-0077, Sequence 4]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-42; Small Entity Compliance Guide
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Small Entity Compliance Guide.
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SUMMARY: This document is issued under the joint authority of the
Secretary of Defense, the Administrator of General Services and the
Administrator of the National Aeronautics and Space Administration.
This Small Entity Compliance Guide has been prepared in accordance with
section 212 of the Small Business Regulatory Enforcement Fairness Act
of 1996. It consists of the summaries of the rules appearing in Federal
Acquisition Circular (FAC) 2005-42 which amends the Federal Acquisition
Regulation (FAR). Interested parties may obtain further information
regarding this rule by referring to FAC 2005-42 which precedes this
document. These documents are also available via the Internet at http:/
/www.regulations.gov.
FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the
table below. Please cite FAC 2005-42 and the specific FAR case number.
For information pertaining to status or publication schedules, contact
the FAR Secretariat at (202) 501-4755.
Rules Listed in FAC 2005-42
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Item Subject FAR case Analyst
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I.......... American Recovery and Reinvestment Act 2009-012 Parnell.
(the RecoveryAct) of 2009--Whistleblower
Protections.
II......... Electronic Subcontracting Reporting 2005-040 Cundiff.
System (eSRS).
III........ American Recovery and Reinvestment Act of 2009-010 Jackson.
2009 (the Recovery Act)--Publicizing
Contract Actions.
IV......... Public Disclosure of Justification and 2008-003 Woodson.
Approval Documents for Noncompetitive
Contracts--Section 844 of the National
Defense Authorization Act for Fiscal
Year 2008.
V.......... Additional Requirements for Market 2008-007 Blankenship.
Research (Interim).
VI......... American Recovery and Reinvestment Act of 2009-011 Chambers.
2009 (Recovery Act)--GAO/IG Access.
VII........ New Designated Country--Taiwan........... 2009-014 Sakalos.
VIII....... Nonavailable Articles.................... 2009-013 Davis.
IX......... Disclosure and Consistency of Cost 2009-025 Chambers.
Accounting Practices for Contracts
Awarded to Foreign Concerns (Interim).
X.......... Compensation for Personal Services 2009-026 Chambers.
(Interim).
XI......... Payrolls and Basic Records (Interim)..... 2009-018 Woodson.
[[Page 34292]]
XII........ 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 2005-42 amends the FAR as specified below:
Item I--American Recovery and Reinvestment Act (the Recovery Act) of
2009--Whistleblower Protections (FAR Case 2009-012)
This rule adopts as final, with changes, an interim rule published
in the Federal Register at 74 FR 14633 on March 31, 2009, amending the
FAR to implement the American Recovery and Reinvestment Act of 2009
(the Recovery Act) with respect to section 1553 of Division A,
Protecting State and Local Government and Contractor Whistleblowers.
This rule prohibits non-Federal employers from discharging, demoting,
or discriminating against an employee as a reprisal for disclosing
information.
Item II--Electronic Subcontracting Reporting System (eSRS)(FAR Case
2005-040)
This rule amends the Federal Acquisition Regulation (FAR) to adopt
as final, with changes, an interim FAR rule published in the Federal
Register at 73 FR 21779 on April 22, 2008, amending the FAR to
implement the use of the Electronic Subcontracting Reporting System
(eSRS) to fulfill small business subcontracting reporting requirements.
The eSRS, a web-based system, replaces the Standard Forms 294 and 295
as the mechanism for submitting reports required by the small business
subcontracting program. In addition, this rule adds a new Alternate III
to FAR clause 52.219-9 to recognize that there is a circumstance under
which contractors will need to use SF 294, rather than eSRS, to submit
an Individual Subcontract Report. The contractor will use SF 294 if a
contract is not reported in the Federal Procurement Data System because
reporting it in that system may disclose information that would
compromise national security.
Item III--American Recovery and Reinvestment Act of 2009 (the Recovery
Act)--Publicizing Contract Actions (FAR Case 2009-010)
This rule adopts as final, with minor changes, the interim rule
published in the Federal Register at 74 FR 14636 on March 31, 2009. The
interim rule amended the FAR to implement section 6.2 of the Office of
Management and Budget (OMB) Memorandum M-09-10, dated February 18,
2009, entitled ``Initial Implementing Guidance for the American
Recovery and Reinvestment Act of 2009'' (the Recovery Act). Section 6.2
of the OMB guidance mandates accountability and transparency relative
to publicizing contract actions. The OMB guidance requires that the FAR
be amended to reflect--
1. Unique requirements for posting of pre-solicitation notices;
2. Unique requirements for announcing contract awards;
3. Unique requirements for entering awards into the Federal
Procurement Data System (FPDS); and
4. Unique requirements for actions that are not fixed-price or
competitive.
OMB Memorandum M-09-15, dated April 3, 2009, entitled ``Updated
Implementing Guidance for the American Recovery and Reinvestment Act of
2009,'' supplements, amends, and clarifies the initial guidance in OMB
Memorandum M-09-10. The final rule makes the following amendments:
FAR 5.704(a)(2) to clarify that modifications of orders
are not required to be publicized at the preaward stage.
FAR 5.704(b) to require contracting officers to identify
proposed contract actions, funded in whole or in part by the Recovery
Act, by using the instructions that are at FAR 5.704(b) and available
in the Recovery FAQs at the GPE https://www.fedbizopps.gov.
FAR 5.704(c) and 5.705(a) to ensure that the description
required by FAR 5.207(a)(16) clearly defines the elements of the
requirement to the general public.
FAR 5.705(b) to require contracting officers to include in
the description of the contract action a statement specifically noting
if the action was not awarded competitively, or was not fixed-price, or
was neither competitive nor fixed-price.
Item IV--Public Disclosure of Justification and Approval Documents for
Noncompetitive Contracts--Section 844 of the National Defense
Authorization Act for Fiscal Year 2008 (FAR Case 2008-003)
This final rule adopts, with changes, an interim rule published in
the Federal Register at 74 FR 2731 on January 15, 2009. The rule amends
the FAR to implement the requirements of Section 844 of the National
Defense Authorization Act for Fiscal Year 2008. The interim rule
required the head of an executive agency to make certain justification
and approval documents relating to the use of noncompetitive procedures
in Federal contracting be posted on the website of an agency and
through FedBizOpps. The final rule requires that if the justification
is a brand name justification under FAR 6.302-1(c) then it must be
posted with the solicitation. Justifications must remain posted for a
minimum of 30 days. The final rule clarifies that posting the
justification does not apply if it would disclose the executive
agency's needs and disclosure of such needs would compromise national
security or create other security risks. The final rule also
establishes procedures at FAR 13.501 similar to procedures at FAR
6.305. The rule is intended to enhance competition in Federal
contracting and provide greater transparency to the taxpayer.
Item V--Additional Requirements for Market Research (FAR Case 2008-007)
(Interim)
This interim rule amends the FAR at parts 10, 44, and 52 by adding
market research requirements. This change implements Section 826 of
Pub. L. 110-181, the National Defense Authorization Act for Fiscal Year
2008 (FY08 NDAA). As a matter of policy, this provision of law is
applied to contracts awarded by all executive agencies. This rule
requires that market research must be accomplished before an agency
places an indefinite-delivery/indefinite-quantity (ID/IQ) task or
delivery order in excess of the simplified acquisition threshold. In
addition, a prime contractor with a contract in excess of $5 million
for the procurement of items other than commercial items is required to
conduct market research before making purchases that exceed the
[[Page 34293]]
simplified acquisition threshold when the contractor is acting as a
purchasing agent for the Government. This interim rule is applicable to
any solicitations issued and contracts (to include any subcontracts
issued under such contracts) awarded on or after the effective date of
the rule.
Item VI--American Recovery and Reinvestment Act of 2009 (Recovery
Act)--GAO/IG Access (FAR Case 2009-011)
This final rule adopts, with changes, the interim rule published in
the Federal Register at 74 FR 14646 on March 31, 2009. This final rule
amends the FAR to implement sections 902, 1514, and 1515 of the
American Recovery and Reinvestment Act of 2009 (Recovery Act).
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 FAR 52.212-5 ``Contract Terms and Conditions Required to
Implement Statutes or Executive Orders--Commercial Items'' and FAR
52.214-26 ``Audit and Records--Sealed Bidding,'' and by amending FAR
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.
The changes to the interim rule clarify its application to
supplemental agreements, and orders under task- or delivery-order
contracts, involving Recovery Act funds.
Item VII--New Designated Country--Taiwan (FAR Case 2009-014)
This final rule adopts as final, without change, an interim rule
implementing the designation of Taiwan under the World Trade
Organization Agreement on Government Procurement, which took effect on
July 15, 2009. This FAR change allows contracting officers to purchase
goods and services made in Taiwan without application of the Buy
American Act if the acquisition is covered by the World Trade
Organization Agreement on Government Procurement.
Item VIII--Nonavailable Articles (FAR Case 2009-013)
This final rule amends FAR 25.104(a) to add certain items to the
list of articles not available from domestic sources in sufficient and
reasonably available commercial quantities of a satisfactory quality.
This case is based on extensive market research by the Defense
Logistics Agency. Unless the contracting officer learns before the time
designated for receipt of bids in sealed bidding or final offers in
negotiation that an article on the list is available domestically in
sufficient and reasonably available quantities of a satisfactory
quality, the Buy American Act does not apply to acquisition of these
items as end products, and the contracting officer may treat foreign
components of the same class or kind as domestic components.
Item IX--Disclosure and Consistency of Cost Accounting Practices for
Contracts Awarded to Foreign Concerns (FAR Case 2009-025) (Interim)
This interim rule amends the FAR to align the existing FAR clause
52.230-4 with the changes made in Cost Accounting Standards (CAS) Board
clause, Disclosure and Consistency of Cost Accounting Practices--
Foreign Concerns.
On March 26, 2008, the CAS Board published, without change from the
proposed rule (72 FR 32829, June 14, 2007), a final rule in the Federal
Register at 73 FR 15939 to utilize the clause, Disclosure and
Consistency of Cost Accounting Practices--Foreign Concerns, in CAS-
covered contracts and subcontracts awarded to foreign concerns. This
rule is necessary in order to maintain consistency between CAS and FAR
in matters relating to the administration of CAS.
Item X--Compensation for Personal Services (FAR Case 2009-026)
(Interim)
This interim rule amends the FAR to align the existing FAR
31.205(q)(2)(i) and (ii) with the changes made in Cost Accounting
Standards (CAS) Board Standards 412, ``Cost Accounting Standard for
composition and measurement of pension cost,'' and 415, ``Accounting
for the cost of deferred compensation.'' Formerly, the applicable CAS
standard for measuring, assigning, and allocating the costs of Employee
Stock Ownership Plans (ESOPs) depended on whether the ESOP met the
definition of a pension plan at FAR 31.001. Costs for ESOPs meeting the
definition of a pension plan at FAR 31.001 were covered by CAS 412,
while the costs for ESOPs not meeting the definition of a pension plan
at FAR 31.001 were covered by CAS 415. Now, regardless of whether an
ESOP meets the definitions of a pension plan at FAR 31.001, all costs
of ESOPs are covered by CAS 415.
Item XI--Payrolls and Basic Records (FAR Case 2009-018) (Interim)
This interim rule implements changes that the Department of Labor
(DOL) instituted regarding the submission of payroll data in their
final rule, Protecting the Privacy of Workers: Labor Standards
Provisions Applicable to Contracts Covering Federally Financed and
Assisted Construction, published in the Federal Register at 73 FR 77504
on December 19, 2008. The rule revises FAR 52.222-8, Payrolls and Basic
Records, to delete the requirement for submission of full social
security numbers and home addresses of individual workers, prime
contractor, on weekly payroll transmittals as required on covered
construction contracts. The rule requires contractors and
subcontractors to maintain the full social security number and current
address of each covered worker, and shall provide them upon request to
the contracting officer, the contractor, or the Wage and Hour Division
of the DOL for purposes of an investigation or audit of compliance with
prevailing wage requirements. The rule recognizes DOL's finding that
complete social security numbers and home addresses for individual
workers is personal information to the worker and that any unnecessary
disclosure and submittal of such information creates an exposure to
identity theft and the invasion of privacy for workers.
Item XII--Technical Amendments
Editorial changes have been made at FAR 31.205-6, 31.205-16,
49.505, and 52.222-34.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
[FR Doc. 2010-14186 Filed 6-15-10; 8:45 am]
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