[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37698-37700]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-14621]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2013-0078; Sequence 3]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-67; Small Entity Compliance Guide
AGENCY: 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 DOD, GSA,
and NASA. 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 the rule
appearing in Federal Acquisition Circular (FAC) 2005-67, which amends
the Federal Acquisition Regulation (FAR). An asterisk (*) next to a
rule indicates that a regulatory flexibility analysis has been
prepared. Interested parties may obtain further information regarding
this rule by referring to FAC 2005-67, which precedes this document.
These documents are also available via the Internet at http://www.regulations.gov.
DATES: June 21, 2013.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
the analyst whose name appears in the table below. Please cite FAC
2005-67 and the FAR case number. For information pertaining to status
or publication schedules, contact the Regulatory Secretariat at 202-
501-4755.
List of Rules in FAC 2005-67
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Item Subject FAR case Analyst
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* I........... Contractors 2011-029 Jackson.
Performing Private
Security Functions
Outside the United
States.
II............ Contracting 2013-004 Jackson.
Officer's
Representative.
III........... System for Award 2012-033 Glover.
Management Name
Change, Phase 1
Implementation.
* IV.......... Interagency 2012-010 Corrigan.
Acquisitions:
Compliance by
Nondefense
Agencies with
Defense
Procurement
Requirements.
* V........... Terms of Service 2013-005 Petrusek.
and Open-Ended
Indemnification,
and
Unenforceability
of Unauthorized
Obligations
(Interim).
* VI.......... Price Analysis 2012-018 Chambers.
Techniques.
* VII......... Contracting with 2013-010 Morgan.
Women-owned Small
Business Concerns
(Interim).
VIII.......... Deletion of Report 2013-008 Davis.
to Congress on
Foreign-
Manufactured
Products.
IX............ Free Trade 2012-027 Davis.
Agreement (FTA)-
Panama.
X............. Updated 2011-019 Chambers.
Postretirement
Benefit (PRB)
References.
XI............ Technical
Amendments.
------------------------------------------------------------------------
[[Page 37699]]
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 numbers and subjects set forth in the documents
following these item summaries. FAC 2005-67 amends the FAR as specified
below:
Item I--Contractors Performing Private Security Functions Outside the
United States (FAR Case 2011-029)
DoD, GSA, and NASA are issuing a final rule amending the FAR to
implement Governmentwide requirements contained in section 862 of the
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008
(Pub. L. 110-181), as amended by section 853 of the NDAA for FY 2009
(Pub. L. 110-417) and sections 831 and 832 of the NDAA for FY 2011
(Pub. L. 111-383). See 10 U.S.C. 2302 Note. These statutes establish
minimum processes and requirements for the selection, accountability,
training, equipping, and conduct of personnel performing private
security functions outside the United States.
Item II--Contracting Officer's Representative (FAR Case 2013-004)
This final rule amends the FAR to improve contract surveillance by
clarifying the contracting officer's representative (COR)
responsibilities in FAR 1.602-2(d). In addition, a corresponding change
is also made at FAR 7.104(e). This case originated from a Department of
Defense (DoD) Panel on Contracting Integrity recommendation. The DoD
Panel on Contracting Integrity, an internal DoD panel, consists of
senior-level DoD officials from across DoD working to review progress
made by DoD to eliminate areas of vulnerability of the defense
contracting system that allow fraud, waste, and abuse to occur, and
recommend changes in law, regulations, and policy to eliminate the
areas of vulnerability. In order to improve the contracting
environment, this rule provides additional explanation in the FAR to
ensure that CORs understand their duties and responsibilities to survey
contractor performance. This final rule is not required to be published
for public comment because it only involves internal Government
procedures regarding the appointment of CORs and the clarification of
COR responsibilities, and has neither a significant effect beyond the
internal operation procedures of the agency issuing the policy,
regulation, procedure or form, nor has a significant cost or
administrative impact on contractors or offerors.
Item III--System for Award Management Name Change, Phase 1
Implementation (FAR Case 2012-033)
This final rule amends the FAR by updating references and names to
conform to the System for Award Management (SAM) designation. The SAM
is a Federal Government owned and operated free Web site that
consolidates the capabilities in certain legacy systems that are used
by Federal officials in the procurement and awards process. This rule
incorporates language that will transition the Central Contractor
Registration (CCR) database, the Excluded Parties List System (EPLS),
and the Online Representations and Certifications Application (ORCA) to
the SAM designation. This final rule also makes a number of minor
additional conforming changes, such as updates to definitions.
Item IV--Interagency Acquisitions: Compliance by Nondefense Agencies
With Defense Procurement Requirements (FAR Case 2012-010)
This final rule adopts with minor changes an interim rule published
in the Federal Register at 77 FR 69720 on November 20, 2012. The
interim rule amended the FAR to implement section 801 of Pub. L. 110-
181, as amended (10 U.S.C. 2304 Note). Section 801 requires compliance
certifications by nondefense agencies that purchase on behalf of the
Department of Defense (DoD), and clarifies which DoD laws and
regulations apply. The agencies must comply with new FAR subpart 17.7,
in addition to complying with FAR subpart 17.5. To provide
clarification for small business and contracting officers, existing
policy for small business goal credit for assisted acquisitions was
added by the interim rule to section FAR 4.603(c).
Item V--Terms of Service and Open-Ended Indemnification, and
Unenforceability of Unauthorized Obligations (FAR Case 2013-005)
(Interim)
This interim rule amends the FAR to address concerns raised in an
opinion from the U.S. Department of Justice Office of Legal Counsel
that determined the Anti-Deficiency Act is violated when a Government
contracting officer or other employee with the authority to bind the
Government agrees, without statutory authorization or other exception,
to an open-ended, unrestricted indemnification clause. This rule
clarifies for the public that an End User License Agreement (EULA),
Terms of Service (TOS), or similar agreement, containing an
indemnification provision, is unenforceable and nonbinding against the
Government and Government--authorized end-users. The rule contains a
new clause that applies to all solicitations and contracts and
automatically applies to micro-purchases, including those made with the
Governmentwide purchase card.
Item VI--Price Analysis Techniques (FAR Case 2012-018)
This final rule amends the FAR to clarify a reference used in FAR
15.404-1(b)(2)(i). FAR 15.404-1(b)(2) delineates the various price
analysis techniques (to ensure a fair and reasonable price) with
15.404-1(b)(2)(i) being the comparison of proposed prices received from
multiple offerors in response to a solicitation. The current reference
in this section (FAR 15.403-1(c)(1)) was too broad; thus, this final
rule changes this reference to 15.403-1(c)(1)(i), which precisely
aligns the price analysis technique of comparing proposed prices in
15.404-1(b)(2)(i) with the adequate price competition standard (for
exceptions from certified cost or pricing data requirements) of
comparing proposed prices from multiple offerors. Small businesses are
not impacted by this final rule because this rule merely clarifies the
reference, changing it to cite FAR 15.403-1(c)(1)(i) (rather than the
more generalized 15.403-1(c)(1)) at 15.404-1(b)(2)(i), which describes
the use of the price analysis technique of comparing proposed prices
from multiple offerors in order to establish a fair and reasonable
price.
Item VII--Contracting With Women-Owned Small Business Concerns (FAR
Case 2013-010) (Interim)
This interim rule amends FAR 19.1505 to remove the dollar
limitation for set-asides for economically disadvantaged women-owned
small business (EDWOSB) concerns or women-owned small business (WOSB)
concerns eligible under the Women-owned Small Business (WOSB) Program.
This change implements section 1697 of the NDAA for FY 2013, Public Law
112-239, which amended section 8(m) of the Small Business Act, (15
U.S.C. 637(m)).
As a result, contracting officers may set aside acquisitions for
competition restricted to EDWOSB concerns or WOSB concerns eligible
under the WOSB Program at any dollar level above the micro-purchase
threshold, provided the other requirements for a set-aside under the
WOSB Program are met.
[[Page 37700]]
Item VIII--Deletion of Report to Congress on Foreign-Manufactured
Products (FAR Case 2013-008)
This final rule amends the FAR to eliminate an obsolete
Congressional reporting requirement imposed by the United States Troops
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability
Appropriations Act, 2007 (41 U.S.C. 8302(b)(1)).
This Act required these reports to Congress for Fiscal Year 2007
through Fiscal Year 2011 on acquisitions of end products manufactured
outside the United States. This report to Congress is no longer
required but the collection of the data in Federal Procurement Data
System is still required (see FAR 52.225-18, Place of Manufacture).
This final rule only affects the internal operating procedures of the
Government.
Item IX--Free Trade Agreement (FTA)--Panama (FAR Case 2012-027)
This final rule adopts without change an interim rule published
November 20, 2012, which implemented a new Free Trade Agreement with
Panama (see the United States-Panama Trade Promotion Agreement
Implementation Act (Pub. L. 112-43) (19 U.S.C. 3805 note).
This Trade Promotion Agreement is a free trade agreement that
provides for mutually non-discriminatory treatment of eligible products
and services from Panama. This final rule is not expected to have a
significant economic impact on a substantial number of small entities.
Item X--Updated Postretirement Benefit (PRB) References (FAR Case 2011-
019)
This final rule amends FAR 31.205-6(o)(2)(iii)(A)(1) to remove
references to paragraphs 110, 112, and 113 of the now superseded
Financial Accounting Standard (FAS) 106, which were deleted in the
Financial Accounting Standards Board's (FASB's) Accounting Standards
Codification (ASC) of generally accepted accounting principles (GAAP)
and replaces them with explicit criteria that are their functional
equivalent. The FAR referenced GAAP to provide criteria for determining
the allowability of the transition obligation, when converting from
pay-as-you-go accounting for postretirement benefits (PRBs) to an
accrual method of accounting for the purposes of Government contract
cost accounting.
This final rule will have a minimal economic impact on small
businesses because it does not change the FAR substantively.
Item XI--Technical Amendments
Editorial changes are made at FAR 8.703, 8.714, 52.204-8, and
52.204-10.
Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2013-14621 Filed 6-20-13; 8:45 am]
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