[Federal Register: December 13, 2010 (Volume 75, Number 238)]
[Rules and Regulations]
[Page 77745-77747]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr13de10-15]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2010-0077, Sequence 9]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-47; 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 a summary of rules appearing in Federal
Acquisition Circular (FAC) 2005-47, which amend the FAR. An asterisk
(*) next to a rule indicates that a regulatory flexibility analysis has
been performed. Interested parties may obtain further information
regarding these rules by referring to FAC 2005-47, which precedes this
document. These documents are also available via the Internet at http:/
/www.regulations.gov.
DATES: For effective dates see separate documents, which follow.
FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the
table below. Please cite FAC 2005-47 and the specific FAR case number.
For information pertaining to status or publication schedules, contact
the Regulatory Secretariat at (202) 501-4755.
[[Page 77746]]
List of Rules in FAC 2005-47
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Item Subject FAR Case Analyst
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I..................................... Notification of Employee 2010-006 McFadden.
Rights Under the National
Labor Relations Act
(Interim).
*II................................... HUBZone Program Revisions.... 2006-005 Morgan.
III................................... Preventing Abuse of 2008-032 Sakalos.
Interagency Contracts
(Interim).
IV.................................... Small Disadvantaged Business 2009-019 Morgan.
Self-Certification (Interim).
V..................................... Uniform Suspension and 2009-036 Gary.
Debarment Requirement
(Interim).
VI.................................... Limitation on Pass-Through 2008-031 Chambers.
Charges.
VII................................... 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 2005-47 amends the FAR as specified below:
Item I--Notification of Employee Rights Under the National Labor
Relations Act (FAR Case 2010-006) (Interim)
This interim rule amends the Federal Acquisition Regulation (FAR)
to implement Executive Order 13496, Notification of Employee Rights
Under Federal Labor Laws, as implemented by the Department of Labor
(DoL). The Executive order requires contractors and subcontractors to
post a notice that includes employee rights under the National Labor
Relations Act, 29 U.S.C. 151 et seq. This Act encourages collective
bargaining, and protects the exercise by employees of their freedom to
associate, to self organize and to designate representatives of their
own choosing for the purpose of negotiating the terms and conditions of
their employment. This FAR interim rule establishes a new subpart
22.16, Notification of Employee Rights under the National Labor
Relations Act. The rule also creates a new FAR clause 52.222-40,
Notification of Employee Rights under the National Labor Relations Act.
In addition, this rule revises the FAR clauses at 52.212-5, Contract
Terms and Conditions Required to Implement Statutes or Executive
Orders--Commercial Items, and 52.244-6, Subcontracts for Commercial
Items, to include the requirements of the new FAR clause 52.222-40. The
required employee notice, ``Notification of Employee Rights Under the
National Labor Relations Act,'' may be obtained from the DoL;
downloaded from a DoL Web site; provided by the Federal contracting
agency, if requested; or reproduced and used as exact duplicate copies
of the DoL's official poster (see FAR 52.222-40(c)). Contracting
officers shall insert the clause at FAR 52.222-40, Notification of
Employee Rights under the National Labor Relations Act, in all
solicitations and contracts, including acquisitions for commercial
items and commercially available off-the-shelf items, except
acquisitions--
(1) Under the simplified acquisition threshold. For indefinite-
quantity contracts, include the clause only if the value of orders in
any calendar year of the contract is expected to exceed the simplified
acquisition threshold;
(2) For work performed exclusively outside the United States; or
(3) Covered (in their entirety) by an exemption granted by the
Secretary.
A contracting agency may modify the clause at FAR 52.222-40, if
necessary, to reflect an exemption granted by the Secretary of the
Department of Labor (see 22.1603(b)).
Item II--HUBZone Program Revisions (FAR Case 2006-005)
This FAR final rule implements the Small Business Administration
(SBA) final rule published in the Federal Register at 69 FR 29411 on
May 24, 2004, and an interim rule published in the Federal Register at
70 FR 51243 on August 30, 2005, amending its HUBZone regulations at 13
CFR part 126 to implement the Small Business Reauthorization Act of
2000, the Consolidated Appropriations Act of 2005, and other various
policy changes. The FAR is amended to--
(1) Require a HUBZone small business concern to be a HUBZone small
business concern both at the time of its initial offer and at the time
of contract award;
(2) Require that HUBZone concerns provide to the contracting
officer a copy of the notice required by 13 CFR 126.501 if material
changes occur before award that could affect its HUBZone eligibility.
(3) Allow waiver of the 50 percent requirement. In accordance with
13 CFR 126.700, for general construction or construction by special
trade contractors, a HUBZone small business concern must spend at least
50 percent of the cost of contract performance incurred for personnel
on its own employees or subcontract employees of other HUBZone small
business concerns. This final rule amends FAR clause 52.219-3, Notice
of Total HUBZone Set-Aside, and FAR clause 52.219-4, Notice of Price
Evaluation Preference for HUBZone Small Business Concerns, to include
an Alternate I, to be used to waive the 50 percent requirement only
after determining that at least two HUBZone small business concerns
cannot meet the requirement. However, the HUBZone small business prime
contractor must still meet the performance of work requirements set
forth in 13 CFR 125.6(c).
Item III--Preventing Abuse of Interagency Contracts (FAR Case 2008-032)
(Interim)
This interim rule implements section 865 of the Duncan Hunter
National Defense Authorization Act (NDAA) for Fiscal Year 2009. FAR
subpart 17.5 now addresses all interagency acquisitions, not just those
made under the Economy Act authority. A new subsection 17.502-1 is
added to require that all interagency acquisitions include a
determination of best procurement approach. For an assisted acquisition
between the servicing agency and the requesting agency, this subsection
now requires a written agreement that establishes the general terms and
conditions governing the relationship between the parties. Subsection
17.502-2 contains business-case analysis requirements when an agency
wishes to establish a contract that would be used by other agencies.
There is a statutory exception included in subpart 17.5 for orders of
$500,000 or less issued against Federal Supply Schedules.
Item IV--Small Disadvantaged Business Program Self-Certification of
Subcontractors (FAR Case 2009-019) (Interim)
This interim rule amends the FAR by allowing small disadvantaged
businesses (SDBs) to self-represent their SDB status to prime
contractors in good faith when seeking Federal subcontracting
opportunities. This change implements revisions made by
[[Page 77747]]
the Small Business Administration (SBA) to its SDB regulations. This
case only addresses the subcontracting status portion of the SBA final
rule for Small Disadvantaged Business certification. The Small
Disadvantaged Business certification for prime contracts will be
addressed in a future rule. This change removes a cost of compliance
burden on SDB subcontractors seeking SBA certification.
Item V--Uniform Suspension and Debarment Requirement (FAR Case 2009-
036) (Interim)
This interim rule amends the FAR at parts 9 and 52 to implement
section 815 of the National Defense Authorization Act for Fiscal Year
2010, Public Law 111-84. The law requires that suspension and debarment
requirements flow down to all subcontracts except contracts for the
acquisition of commercially available off-the-shelf items, and in the
case of contracts for the acquisition of commercial items, first-tier
subcontracts only.
This requirement will protect the Government against contracting
with entities at any tier who are suspended, debarred or proposed for
debarment. This rule does not have a significant impact on the
Government, contractors or any automated systems.
Item VI--Limitations on Pass-Through Charges (FAR Case 2008-031)
This final rule adopts the interim rule published in the Federal
Register at 74 FR 52853, October 14, 2009, as a final rule with minor
changes.
The interim rule amended the FAR to implement section 866 of the
Duncan Hunter National Defense Authorization Act (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). This legislation required the
Councils to amend the FAR to minimize excessive pass-through charges by
contractors from subcontractors, or from 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, the interim rule included 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 VII--Technical Amendments
Editorial changes are made at FAR 3.104-1, 5.601, 7.105, and
10.002.
Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
[FR Doc. 2010-30568 Filed 12-10-10; 8:45 am]
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