Miscellaneous Amendments to Acquisition Regulations (AIDAR Circular 2007-02), 53161-53165 [E7-18234]
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Federal Register / Vol. 72, No. 180 / Tuesday, September 18, 2007 / Rules and Regulations
technical standards (e.g., specifications
of materials, performance, design, or
operation; test methods; sampling
procedures; and related management
systems practices) that are developed or
adopted by voluntary consensus
standards bodies. This rule does not use
technical standards. Therefore, we did
not consider the use of voluntary
consensus standards.
L. Environment
We have analyzed this rule under
Commandant Instruction M16475.lD
and Department of Homeland Security
Management Directive 5100.1, which
guide the Coast Guard in complying
with the National Environmental Policy
Act of 1969 (NEPA)(42 U.S.C. 4321–
4370f). There are no factors in this case
that would limit the use of a categorical
exclusion under section 2.B.2 of the
Instruction. Therefore, this rule is
categorically excluded, under figure 2–
1, paragraph (34)(a), of the Instruction,
from further environmental
documentation. Paragraph 34(a) pertains
to minor regulatory changes that are
editorial or procedural in nature. This
rule adjusts rates in accordance with
applicable statutory and regulatory
mandates. A final ‘‘Environmental
Analysis Check List’’ and a final
‘‘Categorical Exclusion Determination’’
are available in the docket where
indicated under ADDRESSES.
List of Subjects in 46 CFR Part 401
Administrative practice and
procedure, Great Lakes, Navigation
(water), Penalties, Reporting and
recordkeeping requirements, Seamen.
I For the reasons set forth in the
preamble, the Coast Guard adopts as
final without change the interim rule
published at 72 FR 8115, February 23,
2007.
Dated: September 10, 2007.
J.G. Lantz,
Acting Assistant Commandant for Prevention,
U.S. Coast Guard.
[FR Doc. E7–18306 Filed 9–17–07; 8:45 am]
BILLING CODE 4910–15–P
AGENCY FOR INTERNATIONAL
DEVELOPMENT
48 CFR Parts 727, 742, and 752
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RIN 0412–AA30
Miscellaneous Amendments to
Acquisition Regulations (AIDAR
Circular 2007–02)
U.S. Agency for International
Development.
ACTION: Final Rule.
AGENCY:
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SUMMARY: This final rule amends the
USAID acquisition regulation to add
two new parts and four new sections in
existing parts of the regulation, as more
fully discussed in the Supplementary
Information. USAID proposed these
amendments in the proposed rule
published on November 4, 1998, as
AIDAR Notice 98–2.
DATES: Effective Date: October 18, 2007.
FOR FURTHER INFORMATION CONTACT: M/
OAA/P, Ms. Diane M. Howard, Room
7.08–31, 1300 Pennsylvania Ave., NW.,
U.S. Agency for International
Development, Washington, DC 20523–
7801. Telephone (202) 712–0206;
Internet: dhoward@usaid.gov.
SUPPLEMENTARY INFORMATION:
A. Background
AIDAR Notice 98–2 (63 FR 59501,
November 4, 1998) proposed four
separate items to amend the USAID
Acquisition Regulations (48 CFR
Chapter 7), or AIDAR. The AIDAR is
USAID’s supplement to the Federal
Acquisition Regulation (48 CFR Chapter
1), the FAR. The following summarizes
each item and the final action USAID is
taking for each.
1. Item A of AIDAR Notice 98–2
proposed a new Part 712, specifically
section 712.101, ‘‘Policy,’’ to address a
potential conflict between an existing
AIDAR clause, (48 CFR) 752.7008 ‘‘Use
of Government Facilities or Personnel
(APR 1984)’’ and the policy stated in (48
CFR) FAR Part 12. The latter states that
the government will follow customary
commercial practice when acquiring
commercial items. The AIDAR clause
prohibits the use of Government
facilities or personnel in the
performance of the contract. The AIDAR
clause does not recognize situations in
which the customary commercial
practice may be for the purchaser to
provide facilities or personnel to the
vendor. At the time we proposed this
new part, we considered the possibility
that USAID may provide Government
facilities, such as office space and
equipment, to contractor employees
providing commercial services such as
IT support or secretarial/clerical
services in USAID facilities. If
commercial clients typically provide
facilities and equipment for vendors
providing similar services in the private
sector, then that customary commercial
practice would be inconsistent with the
policy stated in (48 CFR) AIDAR
752.7008. The proposed part 712 would
have required the contracting officer to
comply with customary commercial
practice unless he or she obtains a
waiver in accordance with (48 CFR)
FAR 12.302. However, the Agency
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53161
received no comments on this proposed
rule and we have no indication that if
providing facilities and equipment is a
common commercial practice, it has
ever been a problem in a USAID
commercial contract. Therefore, we are
withdrawing the proposed new part.
2. Item B of the Notice proposed
removing (48 CFR) Chapter 7 (AIDAR)
Appendix I, ‘‘USAID’s Academic
Publication Policy’’ and adding a new
part 727 and subpart 727.4 ‘‘Rights in
Data and Copyrights.’’ The intent of this
item of the proposed rule was to address
four issues: (1) To make the clause at (48
CFR) FAR 52.227–14, ‘‘Rights in Data—
General’’ apply to USAID’s contracts
performed overseas and awarded to U.S.
organizations, (2) to provide an alternate
paragraph to add to this FAR clause to
reserve USAID’s right to restrict release
of data when release may have a
negative impact on the Government’s
development or diplomatic relationship
with the cooperating country, (3) to
provide guidance on Rights in Data
coverage for overseas contracts with
non-U.S. entities, and (4) to incorporate
some of the policies and procedures in
Appendix I that would be removed with
the Appendix but that should be
retained, as being in the Agency’s best
interests.
We are withdrawing the parts of Item
B that affected Appendix I and retaining
the current (48 CFR) Chapter 7,
Appendix I in its present form. USAID
is developing a separate internal policy
and regulation on intellectual property.
If this policy and regulation affects
USAID contracts, we will determine
how the AIDAR should implement it
and take the appropriate action at that
time.
We are, however, finalizing other
sections of the proposed (48 CFR)
subpart 727.4, but we are amending the
language from what appeared in the
proposed rule. The only commenter on
the proposed rule pointed out several
instances where the wording was
unclear about the intent of the proposed
revision, so we have clarified the
wording to address this comment.
We are finalizing the new subpart to
address certain FAR requirements that
must be met in order for USAID to place
limits on release of data under our
contracts, as originally explained in the
Supplementary Information in the
proposed rule.
First, 48 CFR (FAR) § 27.404(g)(3)
states, ‘‘* * * agencies may, to the
extent provided in their FAR
supplements, place limitations or
restrictions on the contractor’s right to
use, release to others, reproduce,
distribute, or publish any data first
produced in the performance of the
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contract, including a requirement to
assign copyright to the Government or
another party, either by adding a
paragraph (d)(3) to the Rights in Data—
General clause at 52.227–14, or by
express limitations or restrictions in the
contract.’’ Pursuant to (48 CFR)
27.404(g)(3), the final rule also includes
new language, at (48 CFR) 727.404(g)
and (48 CFR) 752.227–14(d)(3), under
which USAID asserts the right to require
contractors to assign copyright to the
Government or another party. USAID
contracting officers will only assert such
a right in accordance with the principles
as stated in (48 CFR) 27.402.
Second, the prescription for the FAR
Rights in Data—General clause (48 CFR
52.227–14) does not require its use in
contracts ‘‘to be performed outside the
United States, its possessions, and
Puerto Rico, in which cases agencies
may prescribe different clauses (see
paragraph (n) of this section.’’ 48 CFR
27.409(a)(1)(ii). Paragraph (n) states,
‘‘Agencies may prescribe in their
procedures, as appropriate, a clause
consistent with the policy of 27.402 in
contracts to be performed outside the
United States, its possessions, and
Puerto Rico.’’ 48 CFR 27.409(n). Most
USAID contracts are, in fact, performed
overseas. USAID’s FAR supplement, the
AIDAR, does not address either of these
requirements.
The proposed rule’s new subpart, (48
CFR) 727.4, was intended to address
these deficiencies in the AIDAR. The
commenter pointed out that the wording
of the proposed (48 CFR) 727.409(a)
appeared to restrict USAID contracting
officers to using only (48 CFR) FAR
52.227–14, even if another clause, such
as (48 CFR) FAR 52.227–17 ‘‘Rights in
Data—Special Works,’’ may apply.
Since the proposed rule’s intent was not
to impose this kind of limitation,
§ 727.409 in the final rule more clearly
states that contracting officers are to use
whichever FAR ‘‘Rights in Data’’ clause
best applies.
The prescriptions in the proposed
rule also made distinctions between
U.S. entities and non-U.S. entities, in
that the proposed rule authorized
contracting officers to adapt the FAR
clause as necessary in contracts with the
latter and performed overseas, to
comply with applicable laws in the
country of performance. The final rule
removes any distinctions between U.S.
entities and non-U.S. entities, and
applies the FAR prescriptions to all
contracts. The final rule constitutes
Agency procedures pursuant to (48 CFR)
FAR 27.409(n).
When the contracting officer
incorporates (48 CFR) FAR 52.227–14,
and if release, reproduction,
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distribution, or publication of data first
produced or specifically used by the
contractor may be sensitive to U.S.
Government relations with the
cooperating country, the new subpart
also prescribes an AIDAR clause
contracting officers must use. This new
clause, at (48 CFR) 752.227–14, replaces
the FAR clause’s paragraph (d) and
requires contracting officer approval
before the contractor may release or
reproduce such data.
3. Item C proposed a new section (48
CFR) 742.1170, ‘‘Performance
monitoring and progress reporting’’ and
clause at (48 CFR) 752.242–70, entitled
‘‘Periodic Progress Reports.’’ As
explained in the supplementary
information in the proposed rule, the
purpose of the proposed sections was to
provide USAID cognizant technical
officers (CTOs) with a means to tailor
contractors’ progress reporting
requirements so that the CTOs can best
ensure that contractors are performing
in accordance with the contract’s
requirements and achieving planned
results. These AIDAR sections
supplement (48 CFR) FAR Subpart
42.11 and internal Agency policies and
procedures for monitoring the results of
our implementing partners.
The Agency implemented these new
sections after approving a class
deviation to the AIDAR, through
issuance of an internal directive, a
Contract Information Bulletin (CIB) 98–
21, ‘‘Contractor Progress Reports—New
AIDAR Coverage,’’ on August 12, 1998.
Since then, we have identified some
areas where the language can be
improved for clarity. We also received
several comments on this item of the
proposed rule, so this final rule includes
a few non-substantive wording changes
from the proposed rule.
One non-substantive comment asked
that we ensure that the language in
§ 742.1170 and the clause at § 752.242–
70 are consistent with each other and
that the clause itself clearly states the
Government’s rights. Another
commenter pointed out that in
§ 742.1170–4(b), the cognizant technical
officer must advise the contracting
officer of any ‘‘required’’ action, and
recommended changing ‘‘required’’ to
‘‘recommended’’ to be consistent with
the next sentence. We agree with this
recommendation. The same commenter
went on to point out that in the same
section, the cognizant technical officer
must provide recommendations to the
contracting officer in sufficient time for
the contracting officer to take necessary
action, but the regulation doesn’t
include a definition of what is a
reasonable timeframe, and
recommended that we add a definition.
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We are including additional language to
establish a typical (but non-binding)
timeframe. In the same sentence, we
also changed ‘‘necessary’’ to
‘‘appropriate’’ to more accurately reflect
the nature of the kinds of
recommendations that are likely to
result from this report (the last sentence
of this section makes clear that the
contractor must comply with other
notification requirements in the
contract).
Finally, the same commenter
recommended adding language to
paragraph (b) in the new clause at
§ 752.242–70 to make clear that any
withholding due to contractor delay in
furnishing a progress report also ends
when the contractor submits the report.
We accept this recommendation.
Because none of these changes are
substantive, we are finalizing the rule
with minor editorial changes reflecting
the above comments, as well as other
minor changes from passive to active
voice and for clarity.
4. Item D proposed revisions to (48
CFR) § 752.232–7, ‘‘Payments under
Time-and-Materials and Labor-Hour
Contracts.’’ The current version of this
AIDAR clause is a preamble to the FAR
clause of the same name, at (48 CFR)
§ 52.232–7. We proposed to revise the
AIDAR section to (a) clarify certain
terms used in the FAR clause and (b)
revise the clause to allow for a different
withholding methodology than the FAR
clause at the time allowed. Task orders
were and continue to be issued by
USAID contracting officers around the
world and are paid by paying offices
also located around the world. Because
the Agency’s financial management and
contracting systems at that time were
not able to easily support the
coordinated tracking of cumulative
withholdings per contract among
several task order contracting officers
and their respective paying offices, we
determined that a new withholding
methodology was in the Agency’s best
interests. The new methodology
proposed limited the withholding to one
percent per task order up to a maximum
of $50,000 per task order, but with no
limit for the basic contract. We received
no comments about this proposed
revision during the comment period, but
we have received comments about the
ambiguity of the existing AIDAR clause,
both before and after we published the
proposed rule.
The corresponding section of the
FAR, (48 CFR) 52.232–7 was revised in
August 2005 (Federal Acquisition
Circular 2005–05, 70 FR 43580, Item III
‘‘Payment Withholding’’). After
considering the discussion in the
supplementary information for this Item
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of FAC 2005–05, we concluded that the
need for withholding per task order is
no longer necessary. Any withholding
should be the exception, not the rule,
and done only when the contracting
officer must take this step to protect the
Government’s interests. Also, the
Agency has a worldwide financial
management system and is in the
process of acquiring a new contracting
system, and these systems are better
able to track withholding at the contract
level, regardless of where task orders are
issued or paid. For these reasons, we
determined this item in the proposed
rule to be unnecessary.
Further, we now consider the existing
AIDAR section to be unnecessary as a
supplementary preamble to the FAR
clause, since the prescription for the
FAR clause addresses how USAID has
traditionally used this clause for
payments under time-and-material and
labor-hour contracts. We are therefore
removing the existing AIDAR clause
through this final rule.
B. Regulatory Planning and Review
This is not a significant regulatory
action and, therefore, is subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
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C. Regulatory Flexibility Act
The U.S. Agency for International
Development certifies 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 costs on either small or large
businesses; therefore, an Initial
Regulatory Flexibility Analysis has not
been performed. This final rule revises
(48 CFR) AIDAR parts 712, 727, 742,
and 752 to require contracting officers to
comply with customary commercial
practice or to obtain a waiver pursuant
to (48 CFR) FAR Part 12 in order to
prohibit contractors from using
government facilities or personnel in a
commercial services contract; allows
contracting officers to require
contractors to obtain contracting officer
approval before releasing or publishing
data first produced in the performance
of the contract, if the release or
publication may have a negative effect
on the Government’s development
objectives or diplomatic relationship
with the cooperating country; and to
specify progress reporting requirements
in contracts.
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D. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
AIDAR do not impose any additional
information collection requirements that
require the approval of the Office of
Management and Budget under 44
U.S.C. 3501, et seq. AIDAR Subpart 742
and the clause at § 752.242–70
supplement the progress reporting
requirements already included in (48
CFR) FAR Subpart 42.11 and are
consistent with any information
collection requirements in the FAR.
List of Subjects, in 48 CFR Parts 727,
742, and 752.
Government procurement.
For the reasons set forth in the
Preamble, 48 CFR Chapter 7 is amended
as set forth below.
I 1. Add part 727 to subchapter E to
read as follows:
I
PART 727—PATENTS, DATA, AND
COPYRIGHTS
Subpart 727.4—Rights in Data and
Copyrights
Sec.
727.404 Basic Rights in Data Clause.
727.409 Solicitation provisions and
contract clauses.
Authority: Sec. 621, Pub. L. 87–195, 75
Stat. 445, (22 U.S.C. 2381) as amended; E.O.
12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
Subpart 727.4—Rights in Data and
Copyrights
727.404
Basic Rights in Data Clause.
(a) through (f) [Reserved]
(g) When the contract includes a
requirement for the contractor to assign
copyright to the government or another
party, the contracting officer shall
incorporate (48 CFR) 752.227–14 and/or
include an express limitation or
restriction in the contract. USAID
contracting officers will assert such a
right in limited circumstances in
accordance with the principles as stated
in (48 CFR) 27.402.
727.409 Solicitation provisions and
contract clauses.
(a) When the contracting officer
incorporates (48 CFR) FAR 52.227–14,
and if the release or publication of data
first produced in the performance of the
contract may be sensitive to U.S.
Government relations with the
cooperating country, the contracting
officer must use the clause at (48 CFR)
752.227–14.
(b) through (m) [Reserved]
(n) The prescriptions for provisions
and clauses in (48 CFR) FAR 27.409
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53163
apply to all USAID contracts regardless
of place of performance.
PART 742—CONTRACT
ADMINISTRATION
2. The authority citation for part 742
continues to read as follows:
I
Authority: Sec. 621, Pub. L. 87–195, 75
Stat. 445, (22 U.S.C. 2381) as amended; E.O.
12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
3. Add subpart 742.11 to read as
follows:
I
Subpart 742.11—Production, Surveillance,
and Reporting
Sec.
742.1170 Performance monitoring and
progress reporting.
742.1170–1 General.
742.1170–2 Applicability.
742.1170–3 Policy.
742.1170–4 Progress reporting requirements
and contract clause.
Subpart 742.11—Production,
Surveillance, and Reporting
742.1170 Performance monitoring and
progress reporting.
742.1170–1
General.
Performance monitoring is a function
of contract administration used to
determine contractor progress towards
achieving the goals and objectives of the
contract and to identify any factors that
may delay or prevent the
accomplishment of those goals and
objectives. Performance monitoring
requires USAID personnel, particularly
the cognizant technical officer, to
maintain adequate knowledge of the
contractor’s activities and progress in
order to ensure that USAID’s objectives,
as stated in the contract’s Statement of
Work, will be achieved.
742.1170–2
Applicability.
(a) This section applies to USAID
non-personal, professional/technical
services contracts exceeding the
simplified acquisition threshold, but
may be applied to other USAID
contracts, if the contracting officer and
requiring office determine that doing so
is in the best interests of the Agency.
The contracting officer must ensure that
this determination is documented in the
contract file. This section does not
apply to personal services contracts.
(b) The underlying principles of FAR
48 CFR subpart 42.11 apply to USAID
contracts and are inherent to this
section. However, not all of the specific
requirements and terminology in FAR
48 CFR subpart 42.11 are compatible
with the types of technical assistance
contracts usually awarded by USAID.
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Therefore, this section 742.1170 applies
when the requirements of FAR 48 CFR
subpart 42.11 do not meet USAID
requirements or are otherwise not
appropriate.
(c) The progress reports discussed in
this section are separate from the
performance evaluation reports
prepared in accordance with FAR 48
CFR subpart 42.15 and internal Agency
procedures, although they may be used
by USAID personnel or their authorized
representatives when evaluating the
contractor’s performance. Furthermore,
the policies, procedures, and limitations
of this section do not apply to technical
reports, studies, papers, etc., the
acquisition of which may be part of or
even the sole purpose of the contract.
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742.1170–3
Policy.
(a) The contractor is responsible for
timely contract performance.
Performance monitoring by USAID does
not obviate this responsibility.
(b) The requiring office, particularly
the cognizant technical officer and the
contracting officer, will determine how
to monitor the contractor’s performance
to protect the Government’s interests, by
considering:
(1) The contract requirements for
reporting progress;
(2) The contract performance
schedule;
(3) The contractor’s implementation
plan or workplan;
(4) The contractor’s history of contract
performance;
(5) The contractor’s experience with
the services or supplies being provided
under the contract;
(6) The contractor’s financial
capability;
(7) Any other factors the requiring
office, particularly the cognizant
technical officer and the contracting
officer, considers appropriate and
necessary to adequately monitor
contractor performance (for example,
the day-to-day working proximity of the
cognizant technical officer or
contracting officer to the contractor’s
place of performance).
(c) In monitoring contractor
performance, the requiring office
(particularly the cognizant technical
officer and contracting officer) must
utilize any of the contractor’s existing
systems or processes for monitoring
progress, provided that doing so is not
contrary to the terms of the contract.
The requiring officer or cognizant
technical officer must not require
anything from the contractor that is
outside the scope or terms of the
contract or may result in claims of
waivers, of changes, or of other contract
modifications. Further, progress reports
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shall not require information already
available from other sources.
742.1170–4 Progress reporting
requirements and contract clause.
(a) When the requiring office needs
information on contract performance
status on a regular basis, the contracting
officer may require the contractor to
submit periodic progress reports,
tailored to address specific contract
requirements but limited to only that
information essential to USAID’s needs
in monitoring the contractor’s progress.
(b) Because the cognizant technical
officer is the individual most familiar
with the contractor’s performance, the
contractor must submit the progress
reports directly to the cognizant
technical officer. The cognizant
technical officer must review the reports
and advise the contracting officer, in
writing, of any recommended action,
including any action needed to address
potential or actual delays in
performance. The cognizant technical
officer must so advise the contracting
officer in sufficient time, typically thirty
days, for him or her to take any action
that the contracting officer determines is
appropriate. The requirements of this
paragraph do not relieve the contractor
of notification requirements identified
elsewhere in the contract.
(c) The contracting officer must insert
the clause at 752.242–70, Periodic
Progress Reports, in solicitations and
contracts that require progress reporting,
as specified in this section. The
contracting officer must include specific
reporting instructions in the Schedule.
PART 752—SOLICITATION
PROVISIONS AND CONTRACT
CLAUSES
4. The authority citation for Part 752
continues to read as follows:
I
Authority: Sec. 621, Pub. L. 87–195, 75
Stat. 445, (22 U.S.C. 2381) as amended; E.O.
12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
5. Add section 752.227–14 to read as
follows:
I
752.227–14
Rights in Data—General.
As prescribed in 727.409(b), insert the
following clause:
Rights in Data—
General (OCT 2007)
The following paragraph (d) replaces
paragraph (d) of (48 CFR) FAR 52.227–14
Rights in Data—General.
(d) Release, publication and use of data.
(1) For all data first produced or
specifically used by the Contractor in the
performance of this contract in the United
States, its territories, or Puerto Rico, the
Contractor shall have the right to use, release
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to others, reproduce, distribute, or publish
such data, except to the extent such data may
be subject to the Federal export control or
national security laws or regulations, or
unless otherwise provided in this paragraph
of this clause or expressly set forth in this
contract [see paragraph (d)(3) for limitations
on contracts performed outside of the US].
(2) The Contractor agrees that to the extent
it receives or is given access to data necessary
for the performance of this contract which
contain restrictive markings, the Contractor
shall treat the data in accordance with such
markings unless otherwise specifically
authorized in writing by the Contracting
Officer.
(3) For all data first produced or
specifically used by the Contractor in the
overseas performance of this contract, the
Contractor shall not release, reproduce,
distribute, or publish such data without the
written permission of the Contracting Officer.
The government also may require the
contractor to assign copyright to the
government or another party as
circumstances warrant or as specifically
stated elsewhere in the contract.
752.232–7
I
[Removed]
6. Remove section 752.232–7.
7. Add section 752.242–70 to read as
follows:
I
752.242–70
Periodic progress reports.
As prescribed in 742.1170–3(c), insert
the following clause in contracts for
which periodic progress reports are
required from the contractor. The term
‘‘contract’’ shall be interpreted as ‘‘task
order’’ or ‘‘delivery order’’ when this
clause is used in an indefinite-delivery
contract.
Periodic Progress Reports (OCT 2007)
(a) The contractor shall prepare and
submit progress reports as specified in
the contract schedule. These reports are
separate from the interim and final
performance evaluation reports
prepared by USAID in accordance with
FAR 42.15 and internal Agency
procedures, but they may be used by
USAID personnel or their authorized
representatives when evaluating the
contractor’s performance.
(b) During any delay in furnishing a
progress report required under this
contract, the contracting officer may
withhold from payment an amount not
to exceed US$25,000 (or local currency
equivalent) or 5 percent of the amount
of this contract, whichever is less, until
such time as the contractor submits the
report or the contracting officer
determines that the delay no longer has
a detrimental effect on the
E:\FR\FM\18SER1.SGM
18SER1
Federal Register / Vol. 72, No. 180 / Tuesday, September 18, 2007 / Rules and Regulations
Government’s ability to monitor the
contractor’s progress.
Lynn Kopala,
Acting Procurement Executive.
[FR Doc. E7–18234 Filed 9–17–07; 8:45 am]
BILLING CODE 6116–01–P
SUPPLEMENTARY INFORMATION:
DEPARTMENT OF COMMERCE
Electronic Access
National Oceanic and Atmospheric
Administration
This final rule also is accessible via
the Internet at the Office of the Federal
Register’s website at https://
www.gpoaccess.gov/fr/.
Background information and documents
are available at the website of the Pacific
Fishery Management Council (Council)
at https://www.pcouncil.org.
50 CFR Part 660
[Docket No.070830493–7496–01; I.D.
082806B]
RIN 0648–AV95
Magnuson-Stevens Act Provisions;
Fisheries Off West Coast States;
Pacific Coast Groundfish Fishery;
Biennial Specifications and
Management Measures; Correction
Background
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Final rule; correction.
AGENCY:
SUMMARY: NMFS announces corrections
to Federal regulations for the West Coast
groundfish fishery. This action corrects
the latitude/longitude coordinates for
the Salmon Troll and South Coast
Recreational Yelloweye Rockfish
Conservation Areas (RCAs) so that they
are published in the proper sequence.
This action correctly announces the
2007 tribal allocation amount of Pacific
whiting. This action clarifies the
application of the Ocean Salmon
Conservation Zone in the Pacific
whiting fishery. This action corrects
some coordinates of the depth contour
line approximations that are used to
define the RCAs. This action is intended
to eliminate any confusion for the
public that may have occurred as a
result of prior incorrect NMFS
publications.
Effective September 18, 2007.
Comments on this rule will be accepted
through October 18, 2007.
ADDRESSES: You may submit comments,
identified by 0648–AV95 by any of the
following methods:
• E-mail: Correction.nwr@noaa.gov.
Include 0648–AV95 in the subject line
of the message.
• Federal eRulemaking Portal: https://
www.regulations.gov. Follow the
instructions for submitting comments.
• Fax: 206–526–6736, Attn: Gretchen
Arentzen
• Mail: D. Robert Lohn,
Administrator, Northwest Region,
mstockstill on PROD1PC66 with RULES
DATES:
VerDate Aug<31>2005
18:27 Sep 17, 2007
Jkt 211001
NMFS, 7600 Sand Point Way NE,
Seattle, WA 98115–0070, Attn: Gretchen
Arentzen.
FOR FURTHER INFORMATION CONTACT:
Gretchen Arentzen (Northwest Region,
NMFS), phone: 206–526–6147; fax: 206–
526–6736 and; e-mail:
gretchen.arentzen@noaa.gov.
The Pacific Coast Groundfish FMP
and its implementing regulations at title
50 in the Code of Federal Regulations
(CFR), part 660, subpart G, regulate
fishing for over 90 species of groundfish
off the coasts of Washington, Oregon,
and California. Groundfish
specifications and management
measures are developed by the Pacific
Fishery Management Council (Council),
and are implemented by NMFS. On
September 29, 2006, NMFS published a
proposed rule (71 FR 57764) to
implement Amendment 16–4 to the
Pacific Coast Groundfish FMP and to
establish the 2007–2008 harvest
specifications and management
measures for groundfish taken in the
EEZ off the coasts of Washington,
Oregon, and California. NMFS accepted
public comment on the proposed rule
and responded to these comments in the
preamble to the final rule, which
published in the Federal Register on
December 29, 2006 (71 FR 78638).
The 2007–2008 groundfish harvest
specifications and management
measures added a new potential closed
area, the Ocean Salmon Conservation
Zone (OSCZ), in the whiting fishery that
could be implemented inseason through
automatic action. Regulations at
§ 660.373(c)(3) define the OSCZ as a
closed area applying to the whiting
fishery; however, it does not state in this
part that the OSCZ is closed only
through automatic action when NMFS
projects the whiting fishery may take in
excess of 11,000 Chinook salmon within
a calendar year. The process for
implementation of this closed area is
properly described in § 660.370(d). A
cross-reference to this automatic action
section is added to the whiting
regulations defining the OSCZ to clarify
that the OSCZ is only closed after NMFS
initiates an automatic management
PO 00000
Frm 00065
Fmt 4700
Sfmt 4700
53165
action to implement this closed area
based on the projected take of Chinook
salmon.
A range of Pacific whiting (whiting)
harvest specifications and management
measures was adopted in the 2007–2008
harvest specifications and management
measures for groundfish, and final 2007
specifications and management
measures for whiting were adopted in
March 2007. NMFS published a final
rule establishing the 2007 whiting
harvest specifications and management
measures on April 18, 2007 (72 FR
19390), which included the level of the
acceptable biological catch (ABC),
optimum yield (OY), tribal allocation,
and allocations for the nontribal
commercial whiting sectors. The final
2007 tribal allocation was set according
to an abundance-based sliding scale
method, where the tribal allocation
varies with the U.S. whiting optimum
yield (OY) ranging from 14 percent (or
less) of the U.S. OY when OY levels are
above 250,000 mt, to 17.5 percent of the
U.S. OY when the OY level is at or
below 145,000 mt. NMFS had explained
this method in the preamble to the
proposed rule for the 2007–2008
groundfish harvest specifications and
management measures. The tribal
allocation was correctly expressed in
the preamble to that final rule as 32,500
mt, however NMFS did not publish that
amount in § 660.385(e), leaving the
outdated 2006 tribal whiting allocation
of 35,000 mt in current regulations. This
rule corrects 660.385(e) by inserting the
2007 tribal allocation.
The preambles to the proposed and
final rules for the 2007–2008 groundfish
harvest specifications and management
measures described the Yelloweye
Rockfish Conservation Areas (YRCAs),
closed areas intended to protect
overfished species; however, the
regulatory text published the latitude
and longitude coordinates defining the
Salmon Troll YRCA and the South Coast
Recreational YRCA in the incorrect
sequence, resulting in closed areas that
are not the same size or shape as those
analyzed by NMFS, recommended by
the Council, and discussed in the
preamble to the final rule. This
correction re-publishes the YRCA
latitude and longitude coordinates in
the correct sequence to form the closed
areas intended to protect yelloweye
rockfish.
The 2007–2008 groundfish harvest
specifications and management
measures added a new Rockfish
Conservation Area (RCA) boundary line
approximating the 180–fm (32–m) depth
contour off California with
modifications to allow fishing for
petrale sole. After publication of the
E:\FR\FM\18SER1.SGM
18SER1
]]>Agencies
[Federal Register Volume 72, Number 180 (Tuesday, September 18, 2007)]
[Rules and Regulations]
[Pages 53161-53165]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E7-18234]
=======================================================================
-----------------------------------------------------------------------
AGENCY FOR INTERNATIONAL DEVELOPMENT
48 CFR Parts 727, 742, and 752
RIN 0412-AA30
Miscellaneous Amendments to Acquisition Regulations (AIDAR
Circular 2007-02)
AGENCY: U.S. Agency for International Development.
ACTION: Final Rule.
-----------------------------------------------------------------------
SUMMARY: This final rule amends the USAID acquisition regulation to add
two new parts and four new sections in existing parts of the
regulation, as more fully discussed in the Supplementary Information.
USAID proposed these amendments in the proposed rule published on
November 4, 1998, as AIDAR Notice 98-2.
DATES: Effective Date: October 18, 2007.
FOR FURTHER INFORMATION CONTACT: M/OAA/P, Ms. Diane M. Howard, Room
7.08-31, 1300 Pennsylvania Ave., NW., U.S. Agency for International
Development, Washington, DC 20523-7801. Telephone (202) 712-0206;
Internet: dhoward@usaid.gov.
SUPPLEMENTARY INFORMATION:
A. Background
AIDAR Notice 98-2 (63 FR 59501, November 4, 1998) proposed four
separate items to amend the USAID Acquisition Regulations (48 CFR
Chapter 7), or AIDAR. The AIDAR is USAID's supplement to the Federal
Acquisition Regulation (48 CFR Chapter 1), the FAR. The following
summarizes each item and the final action USAID is taking for each.
1. Item A of AIDAR Notice 98-2 proposed a new Part 712,
specifically section 712.101, ``Policy,'' to address a potential
conflict between an existing AIDAR clause, (48 CFR) 752.7008 ``Use of
Government Facilities or Personnel (APR 1984)'' and the policy stated
in (48 CFR) FAR Part 12. The latter states that the government will
follow customary commercial practice when acquiring commercial items.
The AIDAR clause prohibits the use of Government facilities or
personnel in the performance of the contract. The AIDAR clause does not
recognize situations in which the customary commercial practice may be
for the purchaser to provide facilities or personnel to the vendor. At
the time we proposed this new part, we considered the possibility that
USAID may provide Government facilities, such as office space and
equipment, to contractor employees providing commercial services such
as IT support or secretarial/clerical services in USAID facilities. If
commercial clients typically provide facilities and equipment for
vendors providing similar services in the private sector, then that
customary commercial practice would be inconsistent with the policy
stated in (48 CFR) AIDAR 752.7008. The proposed part 712 would have
required the contracting officer to comply with customary commercial
practice unless he or she obtains a waiver in accordance with (48 CFR)
FAR 12.302. However, the Agency received no comments on this proposed
rule and we have no indication that if providing facilities and
equipment is a common commercial practice, it has ever been a problem
in a USAID commercial contract. Therefore, we are withdrawing the
proposed new part.
2. Item B of the Notice proposed removing (48 CFR) Chapter 7
(AIDAR) Appendix I, ``USAID's Academic Publication Policy'' and adding
a new part 727 and subpart 727.4 ``Rights in Data and Copyrights.'' The
intent of this item of the proposed rule was to address four issues:
(1) To make the clause at (48 CFR) FAR 52.227-14, ``Rights in Data--
General'' apply to USAID's contracts performed overseas and awarded to
U.S. organizations, (2) to provide an alternate paragraph to add to
this FAR clause to reserve USAID's right to restrict release of data
when release may have a negative impact on the Government's development
or diplomatic relationship with the cooperating country, (3) to provide
guidance on Rights in Data coverage for overseas contracts with non-
U.S. entities, and (4) to incorporate some of the policies and
procedures in Appendix I that would be removed with the Appendix but
that should be retained, as being in the Agency's best interests.
We are withdrawing the parts of Item B that affected Appendix I and
retaining the current (48 CFR) Chapter 7, Appendix I in its present
form. USAID is developing a separate internal policy and regulation on
intellectual property. If this policy and regulation affects USAID
contracts, we will determine how the AIDAR should implement it and take
the appropriate action at that time.
We are, however, finalizing other sections of the proposed (48 CFR)
subpart 727.4, but we are amending the language from what appeared in
the proposed rule. The only commenter on the proposed rule pointed out
several instances where the wording was unclear about the intent of the
proposed revision, so we have clarified the wording to address this
comment.
We are finalizing the new subpart to address certain FAR
requirements that must be met in order for USAID to place limits on
release of data under our contracts, as originally explained in the
Supplementary Information in the proposed rule.
First, 48 CFR (FAR) Sec. 27.404(g)(3) states, ``* * * agencies
may, to the extent provided in their FAR supplements, place limitations
or restrictions on the contractor's right to use, release to others,
reproduce, distribute, or publish any data first produced in the
performance of the
[[Page 53162]]
contract, including a requirement to assign copyright to the Government
or another party, either by adding a paragraph (d)(3) to the Rights in
Data--General clause at 52.227-14, or by express limitations or
restrictions in the contract.'' Pursuant to (48 CFR) 27.404(g)(3), the
final rule also includes new language, at (48 CFR) 727.404(g) and (48
CFR) 752.227-14(d)(3), under which USAID asserts the right to require
contractors to assign copyright to the Government or another party.
USAID contracting officers will only assert such a right in accordance
with the principles as stated in (48 CFR) 27.402.
Second, the prescription for the FAR Rights in Data--General clause
(48 CFR 52.227-14) does not require its use in contracts ``to be
performed outside the United States, its possessions, and Puerto Rico,
in which cases agencies may prescribe different clauses (see paragraph
(n) of this section.'' 48 CFR 27.409(a)(1)(ii). Paragraph (n) states,
``Agencies may prescribe in their procedures, as appropriate, a clause
consistent with the policy of 27.402 in contracts to be performed
outside the United States, its possessions, and Puerto Rico.'' 48 CFR
27.409(n). Most USAID contracts are, in fact, performed overseas.
USAID's FAR supplement, the AIDAR, does not address either of these
requirements.
The proposed rule's new subpart, (48 CFR) 727.4, was intended to
address these deficiencies in the AIDAR. The commenter pointed out that
the wording of the proposed (48 CFR) 727.409(a) appeared to restrict
USAID contracting officers to using only (48 CFR) FAR 52.227-14, even
if another clause, such as (48 CFR) FAR 52.227-17 ``Rights in Data--
Special Works,'' may apply. Since the proposed rule's intent was not to
impose this kind of limitation, Sec. 727.409 in the final rule more
clearly states that contracting officers are to use whichever FAR
``Rights in Data'' clause best applies.
The prescriptions in the proposed rule also made distinctions
between U.S. entities and non-U.S. entities, in that the proposed rule
authorized contracting officers to adapt the FAR clause as necessary in
contracts with the latter and performed overseas, to comply with
applicable laws in the country of performance. The final rule removes
any distinctions between U.S. entities and non-U.S. entities, and
applies the FAR prescriptions to all contracts. The final rule
constitutes Agency procedures pursuant to (48 CFR) FAR 27.409(n).
When the contracting officer incorporates (48 CFR) FAR 52.227-14,
and if release, reproduction, distribution, or publication of data
first produced or specifically used by the contractor may be sensitive
to U.S. Government relations with the cooperating country, the new
subpart also prescribes an AIDAR clause contracting officers must use.
This new clause, at (48 CFR) 752.227-14, replaces the FAR clause's
paragraph (d) and requires contracting officer approval before the
contractor may release or reproduce such data.
3. Item C proposed a new section (48 CFR) 742.1170, ``Performance
monitoring and progress reporting'' and clause at (48 CFR) 752.242-70,
entitled ``Periodic Progress Reports.'' As explained in the
supplementary information in the proposed rule, the purpose of the
proposed sections was to provide USAID cognizant technical officers
(CTOs) with a means to tailor contractors' progress reporting
requirements so that the CTOs can best ensure that contractors are
performing in accordance with the contract's requirements and achieving
planned results. These AIDAR sections supplement (48 CFR) FAR Subpart
42.11 and internal Agency policies and procedures for monitoring the
results of our implementing partners.
The Agency implemented these new sections after approving a class
deviation to the AIDAR, through issuance of an internal directive, a
Contract Information Bulletin (CIB) 98-21, ``Contractor Progress
Reports--New AIDAR Coverage,'' on August 12, 1998. Since then, we have
identified some areas where the language can be improved for clarity.
We also received several comments on this item of the proposed rule, so
this final rule includes a few non-substantive wording changes from the
proposed rule.
One non-substantive comment asked that we ensure that the language
in Sec. 742.1170 and the clause at Sec. 752.242-70 are consistent
with each other and that the clause itself clearly states the
Government's rights. Another commenter pointed out that in Sec.
742.1170-4(b), the cognizant technical officer must advise the
contracting officer of any ``required'' action, and recommended
changing ``required'' to ``recommended'' to be consistent with the next
sentence. We agree with this recommendation. The same commenter went on
to point out that in the same section, the cognizant technical officer
must provide recommendations to the contracting officer in sufficient
time for the contracting officer to take necessary action, but the
regulation doesn't include a definition of what is a reasonable
timeframe, and recommended that we add a definition. We are including
additional language to establish a typical (but non-binding) timeframe.
In the same sentence, we also changed ``necessary'' to ``appropriate''
to more accurately reflect the nature of the kinds of recommendations
that are likely to result from this report (the last sentence of this
section makes clear that the contractor must comply with other
notification requirements in the contract).
Finally, the same commenter recommended adding language to
paragraph (b) in the new clause at Sec. 752.242-70 to make clear that
any withholding due to contractor delay in furnishing a progress report
also ends when the contractor submits the report. We accept this
recommendation.
Because none of these changes are substantive, we are finalizing
the rule with minor editorial changes reflecting the above comments, as
well as other minor changes from passive to active voice and for
clarity.
4. Item D proposed revisions to (48 CFR) Sec. 752.232-7,
``Payments under Time-and-Materials and Labor-Hour Contracts.'' The
current version of this AIDAR clause is a preamble to the FAR clause of
the same name, at (48 CFR) Sec. 52.232-7. We proposed to revise the
AIDAR section to (a) clarify certain terms used in the FAR clause and
(b) revise the clause to allow for a different withholding methodology
than the FAR clause at the time allowed. Task orders were and continue
to be issued by USAID contracting officers around the world and are
paid by paying offices also located around the world. Because the
Agency's financial management and contracting systems at that time were
not able to easily support the coordinated tracking of cumulative
withholdings per contract among several task order contracting officers
and their respective paying offices, we determined that a new
withholding methodology was in the Agency's best interests. The new
methodology proposed limited the withholding to one percent per task
order up to a maximum of $50,000 per task order, but with no limit for
the basic contract. We received no comments about this proposed
revision during the comment period, but we have received comments about
the ambiguity of the existing AIDAR clause, both before and after we
published the proposed rule.
The corresponding section of the FAR, (48 CFR) 52.232-7 was revised
in August 2005 (Federal Acquisition Circular 2005-05, 70 FR 43580, Item
III ``Payment Withholding''). After considering the discussion in the
supplementary information for this Item
[[Page 53163]]
of FAC 2005-05, we concluded that the need for withholding per task
order is no longer necessary. Any withholding should be the exception,
not the rule, and done only when the contracting officer must take this
step to protect the Government's interests. Also, the Agency has a
worldwide financial management system and is in the process of
acquiring a new contracting system, and these systems are better able
to track withholding at the contract level, regardless of where task
orders are issued or paid. For these reasons, we determined this item
in the proposed rule to be unnecessary.
Further, we now consider the existing AIDAR section to be
unnecessary as a supplementary preamble to the FAR clause, since the
prescription for the FAR clause addresses how USAID has traditionally
used this clause for payments under time-and-material and labor-hour
contracts. We are therefore removing the existing AIDAR clause through
this final rule.
B. Regulatory Planning and Review
This is not a significant regulatory action and, therefore, is
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
C. Regulatory Flexibility Act
The U.S. Agency for International Development certifies 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 costs on either small or large businesses; therefore, an
Initial Regulatory Flexibility Analysis has not been performed. This
final rule revises (48 CFR) AIDAR parts 712, 727, 742, and 752 to
require contracting officers to comply with customary commercial
practice or to obtain a waiver pursuant to (48 CFR) FAR Part 12 in
order to prohibit contractors from using government facilities or
personnel in a commercial services contract; allows contracting
officers to require contractors to obtain contracting officer approval
before releasing or publishing data first produced in the performance
of the contract, if the release or publication may have a negative
effect on the Government's development objectives or diplomatic
relationship with the cooperating country; and to specify progress
reporting requirements in contracts.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the AIDAR do not impose any additional information collection
requirements that require the approval of the Office of Management and
Budget under 44 U.S.C. 3501, et seq. AIDAR Subpart 742 and the clause
at Sec. 752.242-70 supplement the progress reporting requirements
already included in (48 CFR) FAR Subpart 42.11 and are consistent with
any information collection requirements in the FAR.
List of Subjects, in 48 CFR Parts 727, 742, and 752.
Government procurement.
0
For the reasons set forth in the Preamble, 48 CFR Chapter 7 is amended
as set forth below.
0
1. Add part 727 to subchapter E to read as follows:
PART 727--PATENTS, DATA, AND COPYRIGHTS
Subpart 727.4--Rights in Data and Copyrights
Sec.
727.404 Basic Rights in Data Clause.
727.409 Solicitation provisions and contract clauses.
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
Subpart 727.4--Rights in Data and Copyrights
727.404 Basic Rights in Data Clause.
(a) through (f) [Reserved]
(g) When the contract includes a requirement for the contractor to
assign copyright to the government or another party, the contracting
officer shall incorporate (48 CFR) 752.227-14 and/or include an express
limitation or restriction in the contract. USAID contracting officers
will assert such a right in limited circumstances in accordance with
the principles as stated in (48 CFR) 27.402.
727.409 Solicitation provisions and contract clauses.
(a) When the contracting officer incorporates (48 CFR) FAR 52.227-
14, and if the release or publication of data first produced in the
performance of the contract may be sensitive to U.S. Government
relations with the cooperating country, the contracting officer must
use the clause at (48 CFR) 752.227-14.
(b) through (m) [Reserved]
(n) The prescriptions for provisions and clauses in (48 CFR) FAR
27.409 apply to all USAID contracts regardless of place of performance.
PART 742--CONTRACT ADMINISTRATION
0
2. The authority citation for part 742 continues to read as follows:
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
0
3. Add subpart 742.11 to read as follows:
Subpart 742.11--Production, Surveillance, and Reporting
Sec.
742.1170 Performance monitoring and progress reporting.
742.1170-1 General.
742.1170-2 Applicability.
742.1170-3 Policy.
742.1170-4 Progress reporting requirements and contract clause.
Subpart 742.11--Production, Surveillance, and Reporting
742.1170 Performance monitoring and progress reporting.
742.1170-1 General.
Performance monitoring is a function of contract administration
used to determine contractor progress towards achieving the goals and
objectives of the contract and to identify any factors that may delay
or prevent the accomplishment of those goals and objectives.
Performance monitoring requires USAID personnel, particularly the
cognizant technical officer, to maintain adequate knowledge of the
contractor's activities and progress in order to ensure that USAID's
objectives, as stated in the contract's Statement of Work, will be
achieved.
742.1170-2 Applicability.
(a) This section applies to USAID non-personal, professional/
technical services contracts exceeding the simplified acquisition
threshold, but may be applied to other USAID contracts, if the
contracting officer and requiring office determine that doing so is in
the best interests of the Agency. The contracting officer must ensure
that this determination is documented in the contract file. This
section does not apply to personal services contracts.
(b) The underlying principles of FAR 48 CFR subpart 42.11 apply to
USAID contracts and are inherent to this section. However, not all of
the specific requirements and terminology in FAR 48 CFR subpart 42.11
are compatible with the types of technical assistance contracts usually
awarded by USAID.
[[Page 53164]]
Therefore, this section 742.1170 applies when the requirements of FAR
48 CFR subpart 42.11 do not meet USAID requirements or are otherwise
not appropriate.
(c) The progress reports discussed in this section are separate
from the performance evaluation reports prepared in accordance with FAR
48 CFR subpart 42.15 and internal Agency procedures, although they may
be used by USAID personnel or their authorized representatives when
evaluating the contractor's performance. Furthermore, the policies,
procedures, and limitations of this section do not apply to technical
reports, studies, papers, etc., the acquisition of which may be part of
or even the sole purpose of the contract.
742.1170-3 Policy.
(a) The contractor is responsible for timely contract performance.
Performance monitoring by USAID does not obviate this responsibility.
(b) The requiring office, particularly the cognizant technical
officer and the contracting officer, will determine how to monitor the
contractor's performance to protect the Government's interests, by
considering:
(1) The contract requirements for reporting progress;
(2) The contract performance schedule;
(3) The contractor's implementation plan or workplan;
(4) The contractor's history of contract performance;
(5) The contractor's experience with the services or supplies being
provided under the contract;
(6) The contractor's financial capability;
(7) Any other factors the requiring office, particularly the
cognizant technical officer and the contracting officer, considers
appropriate and necessary to adequately monitor contractor performance
(for example, the day-to-day working proximity of the cognizant
technical officer or contracting officer to the contractor's place of
performance).
(c) In monitoring contractor performance, the requiring office
(particularly the cognizant technical officer and contracting officer)
must utilize any of the contractor's existing systems or processes for
monitoring progress, provided that doing so is not contrary to the
terms of the contract. The requiring officer or cognizant technical
officer must not require anything from the contractor that is outside
the scope or terms of the contract or may result in claims of waivers,
of changes, or of other contract modifications. Further, progress
reports shall not require information already available from other
sources.
742.1170-4 Progress reporting requirements and contract clause.
(a) When the requiring office needs information on contract
performance status on a regular basis, the contracting officer may
require the contractor to submit periodic progress reports, tailored to
address specific contract requirements but limited to only that
information essential to USAID's needs in monitoring the contractor's
progress.
(b) Because the cognizant technical officer is the individual most
familiar with the contractor's performance, the contractor must submit
the progress reports directly to the cognizant technical officer. The
cognizant technical officer must review the reports and advise the
contracting officer, in writing, of any recommended action, including
any action needed to address potential or actual delays in performance.
The cognizant technical officer must so advise the contracting officer
in sufficient time, typically thirty days, for him or her to take any
action that the contracting officer determines is appropriate. The
requirements of this paragraph do not relieve the contractor of
notification requirements identified elsewhere in the contract.
(c) The contracting officer must insert the clause at 752.242-70,
Periodic Progress Reports, in solicitations and contracts that require
progress reporting, as specified in this section. The contracting
officer must include specific reporting instructions in the Schedule.
PART 752--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. The authority citation for Part 752 continues to read as follows:
Authority: Sec. 621, Pub. L. 87-195, 75 Stat. 445, (22 U.S.C.
2381) as amended; E.O. 12163, Sept. 29, 1979, 44 FR 56673; 3 CFR
1979 Comp., p. 435.
0
5. Add section 752.227-14 to read as follows:
752.227-14 Rights in Data--General.
As prescribed in 727.409(b), insert the following clause:
Rights in Data--
General (OCT 2007)
The following paragraph (d) replaces paragraph (d) of (48 CFR)
FAR 52.227-14 Rights in Data--General.
(d) Release, publication and use of data.
(1) For all data first produced or specifically used by the
Contractor in the performance of this contract in the United States,
its territories, or Puerto Rico, the Contractor shall have the right
to use, release to others, reproduce, distribute, or publish such
data, except to the extent such data may be subject to the Federal
export control or national security laws or regulations, or unless
otherwise provided in this paragraph of this clause or expressly set
forth in this contract [see paragraph (d)(3) for limitations on
contracts performed outside of the US].
(2) The Contractor agrees that to the extent it receives or is
given access to data necessary for the performance of this contract
which contain restrictive markings, the Contractor shall treat the
data in accordance with such markings unless otherwise specifically
authorized in writing by the Contracting Officer.
(3) For all data first produced or specifically used by the
Contractor in the overseas performance of this contract, the
Contractor shall not release, reproduce, distribute, or publish such
data without the written permission of the Contracting Officer. The
government also may require the contractor to assign copyright to
the government or another party as circumstances warrant or as
specifically stated elsewhere in the contract.
752.232-7 [Removed]
0
6. Remove section 752.232-7.
0
7. Add section 752.242-70 to read as follows:
752.242-70 Periodic progress reports.
As prescribed in 742.1170-3(c), insert the following clause in
contracts for which periodic progress reports are required from the
contractor. The term ``contract'' shall be interpreted as ``task
order'' or ``delivery order'' when this clause is used in an
indefinite-delivery contract.
Periodic Progress Reports (OCT 2007)
(a) The contractor shall prepare and submit progress reports as
specified in the contract schedule. These reports are separate from the
interim and final performance evaluation reports prepared by USAID in
accordance with FAR 42.15 and internal Agency procedures, but they may
be used by USAID personnel or their authorized representatives when
evaluating the contractor's performance.
(b) During any delay in furnishing a progress report required under
this contract, the contracting officer may withhold from payment an
amount not to exceed US$25,000 (or local currency equivalent) or 5
percent of the amount of this contract, whichever is less, until such
time as the contractor submits the report or the contracting officer
determines that the delay no longer has a detrimental effect on the
[[Page 53165]]
Government's ability to monitor the contractor's progress.
Lynn Kopala,
Acting Procurement Executive.
[FR Doc. E7-18234 Filed 9-17-07; 8:45 am]
BILLING CODE 6116-01-P
