[Federal Register: November 2, 2011 (Volume 76, Number 212)]
[Rules and Regulations]
[Page 68037-68039]
From the Federal Register Online via GPO Access [wais.access.gpo.gov]
[DOCID:fr02no11-23]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 25
[FAC 2005-54; FAR Case 2009-041; Item VII; 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: Final rule.
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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the
Federal Acquisition Regulation (FAR) to revise the prohibition on
contracting with entities that conduct restricted business operations
in Sudan. This rule adds specific criteria including foreign policy
aspects that an agency must address when applying to the President or
his appointed designee for a waiver of the prohibition on awarding a
contract to a contractor that conducts restricted business operations
in Sudan. The rule also describes the consultation process that will be
used by the Office of Federal Procurement Policy (OFPP) in support of
the waiver request review.
DATES: Effective Date: December 2, 2011.
FOR FURTHER INFORMATION CONTACT: Cecelia L. Davis, Procurement Analyst,
at (202) 219-0202, for clarification of content. For information
pertaining to status or publication schedules, contact the FAR
Secretariat at (202) 501-4755. Please cite FAC 2005-54, FAR Case 2009-
041.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA published a proposed rule in the Federal
Register at 75 FR 62069 on October 7, 2010, to revise FAR 25.702,
Prohibition on contracting with entities that conduct restricted
business operations in Sudan, to add specific criteria including
foreign policy aspects that an agency must address when applying to the
President or his appointed designee for a waiver of the prohibition on
awarding a contract to a contractor that conducts restricted business
operations in Sudan. The rule also describes the consultation process
that will be used by OFPP in support of the waiver review. No comments
were received by the close of
[[Page 68038]]
the public comment period on December 6, 2010.
DoD, GSA, and NASA 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 (the Act), Public Law 110-174.
Section 6(a) of the Act requires that each contract entered into by
an Executive agency include a certification that the contractor does
not conduct certain business operations in Sudan as described in
section 3(d) of the Act. Pursuant to section 6(c), the President may
waive this certification requirement on a case-by-case basis if the
President determines and certifies to the appropriate congressional
committees that it is in the national interest to do so.
Section 6 of the Act 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 requests are reviewed by the appropriate agency
experts.
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
restricted 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 Act, the Administrator of OFPP
is required to submit semiannual reports, on April 15th and October
15th, to Congress, on waivers approved by the President.
II. Executive Orders 12866 and 13563
Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess
all costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). E.O.
13563 emphasizes the importance of quantifying both costs and benefits,
of reducing costs, of harmonizing rules, and of promoting flexibility.
This is a significant regulatory action and, therefore, was subject to
review under section 6(b) of E.O. 12866, Regulatory Planning and Review
dated September 30, 1993. This rule is not a major rule under 5 U.S.C.
804.
III. Regulatory Flexibility Act
The Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not 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.
IV. Paperwork Reduction Act
The final rule does not contain any information collection
requirements that require the approval of the Office of Management and
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).
List of Subjects in 48 CFR Part 25
Government procurement.
Dated: October 21, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
Therefore, DoD, GSA, and NASA amend 48 CFR part 25 as set forth
below:
PART 25--FOREIGN ACQUISITION
0
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).
0
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 to 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 email address;
(ii) Offeror's name, complete mailing address, and point of contact
name, telephone number, and email 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
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other firms that conduct prohibited business operations in Sudan; and
(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 semiannually submit a report to Congress, on April 15th
and October 15th, on the waivers granted.
[FR Doc. 2011-27788 Filed 11-1-11; 8:45 am]
BILLING CODE 6820-EP-P