Federal Acquisition Regulation; FAR Case 2009-010, American Recovery and Reinvestment Act of 2009 (the Recovery Act)-Publicizing Contract Actions, 14636-14639 [E9-7019]
Download as PDF
<![CDATA[
14636
Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
(B) Has not issued an order within
210 days after the submission of a
complaint in accordance with section
1553 of the Recovery Act, or in the case
of an extension of time in accordance
with section 1553 of the Recovery Act,
within 30 days after the expiration of
the extension of time; or
(C) Decides in accordance with
section 1553 of the Recovery Act not to
investigate or to discontinue an
investigation; and
(ii) There is no showing that such
delay or decision is due to the bad faith
of the complainant.
(2) Such an action shall, at the request
of either party to the action, be tried by
the court with a jury.
(d) Whenever an employer fails to
comply with an order issued under this
section, the head of the agency shall
request the Department of Justice to file
an action for enforcement of such order
in the United States district court for a
district in which the reprisal was found
to have occurred. In any action brought
under this section, the court may grant
appropriate relief, including injunctive
relief, compensatory and exemplary
damages, and attorneys fees and costs.
(e) Any person adversely affected or
aggrieved by an order issued under
paragraph (b) of this subsection may
obtain review of the order’s
conformance with the law, and this
section, in the United States Court of
Appeals for a circuit in which the
reprisal is alleged in the order to have
occurred. No petition seeking such
review may be filed more than 60 days
after issuance of the order by the head
of the agency.
3.907–7
Contract Clause.
(b) The Contractor shall include the
substance of this clause including this
paragraph (b) in all subcontracts.
■
(End of clause)
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
6. Amend section 52.212–4 by
revising the date of the clause and
paragraph (r) to read as follows:
■
*
*
*
*
Contract Terms and Conditions—
Commercial Items (MAR 2009)
*
*
*
*
*
*
*
*
*
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Items) (Mar 2009)
52.212–4 Contract Terms and
Conditions—Commercial Items.
*
8. Amend section 52.213–4 by
revising the date of the clause and
paragraph (a)(2)(vi) to read as follows:
*
(a) * * *
(2) * * *
(vi) 52.244–6, Subcontracts for Commercial
Items. (MAR 2009)
(r) Compliance with laws unique to
Government contracts. The Contractor agrees
to comply with 31 U.S.C. 1352 relating to
limitations on the use of appropriated funds
to influence certain Federal contracts; 18
U.S.C. 431 relating to officials not to benefit;
40 U.S.C. 3701, et seq., Contract Work Hours
and Safety Standards Act; 41 U.S.C. 51–58,
Anti-Kickback Act of 1986; 41 U.S.C. 265 and
10 U.S.C. 2409 relating to whistleblower
protections; Section 1553 of the American
Recovery and Reinvestment Act of 2009
relating to whistleblower protections for
contracts funded under that Act; 49 U.S.C.
40118, Fly American; and 41 U.S.C. 423
relating to procurement integrity.
*
*
*
*
*
(End of clause)
(c)(1) * * *
(ii) 52.203–15, Whistleblower Protections
Under the American Recovery and
Reinvestment Act of 2009 (Section 1553 of
Pub. L. 111–5). Applies to subcontracts
funded under the Act.
*
7. Amend section 52.212–5 by—
a. Revising the date of the clause;
b. Redesignating paragraphs (b)(3)
thru (b)(41) as paragraphs (b)(4) thru
(b)(42), respectively, and adding a new
paragraph (b)(3); and
c. Redesignating paragraphs (e)(1)(iii)
thru (e)(1)(xiii) as paragraphs (e)(1)(iv)
thru (e)(1)(xiv), respectively, and adding
a new paragraph (e)(1)(iii). The revised
and added text reads as follows:
■
*
*
*
*
9. Amend section 52.244–6 by
revising the date of the clause;
redesignating paragraphs (c)(1)(ii) thru
(c)(1)(viii) as paragraphs (c)(1)(iii) thru
(c)(1)(ix), respectively, and adding a
new paragraph (c)(1)(ii).
■
52.244–6
Items.
*
*
Subcontracts for Commercial
*
*
*
Subcontracts for Commercial Items
(Mar 2009)
*
*
*
*
*
*
*
*
(End of clause)
*
*
[FR Doc. E9–7020 Filed 3–30–09; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
Use the clause at 52.203–15,
Whistleblower Protections Under the
American Recovery and Reinvestment
Act of 2009 in all solicitations and
contracts funded in whole or in part
with Recovery Act funds.
52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
GENERAL SERVICES
ADMINISTRATION
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items
(Mar 2009)
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
5. Add section 52.203–15 to read as
follows:
■
*
sroberts on PROD1PC70 with RULES
As prescribed in 3.907–7, use the
following clause:
*
Whistleblower Protections Under the
American Recovery and Reinvestment
Act of 2009 (Mar 2009)
(a) The Contractor shall post notice of
employees rights and remedies for
whistleblower protections provided under
section 1553 of the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111–5).
13:57 Mar 30, 2009
Jkt 217001
*
*
*
*
*
*
*
(b) * * *
(3) 52.203–15, Whistleblower Protections
under the American Recovery and
Reinvestment Act of 2009 (Section 1553 of
Pub. L. 111–5).
52.203–15 Whistleblower Protections
Under the American Recovery and
Reinvestment Act of 2009
VerDate Nov<24>2008
*
*
*
*
*
(e)(1) * * *
(iii) 52.203–15, Whistleblower Protections
Under the American Recovery and
Reinvestment Act of 2009 (Section 1553 of
Pub. L. 111–5). Applies to subcontracts
funded under the Act.
*
*
*
*
*
(End of clause)
PO 00000
Frm 00016
Fmt 4701
Sfmt 4700
48 CFR Parts 4, 5, 8, 13, and 16
[FAC 2005–32; FAR Case 2009–010; Item
III; Docket 2009–0010, Sequence 1]
RIN 9000–AL24
Federal Acquisition Regulation; FAR
Case 2009–010, American Recovery
and Reinvestment Act of 2009 (the
Recovery Act)—Publicizing Contract
Actions
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
E:\FR\FM\31MRR2.SGM
31MRR2
sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement the
Office of Management and Budget
(OMB) Guidance M–09–10, dated
February 18, 2009, entitled, ‘‘Initial
Implementing Guidance for the
American Recovery and Reinvestment
Act of 2009’’ (the Recovery Act), with
respect to publicizing contract actions.
DATES: Effective Date: March 31, 2009
Applicability Date: This rule applies
on or after the effective date of this rule
to: (1) Solicitations issued, (2) contracts
awarded, and (3) orders issued under
existing task and delivery order
contracts as defined in the rule.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before June 1,
2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–32, FAR case
2009–010, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2009–010’’ under the heading
‘‘Comment or Submission.’’ Select the
link ‘‘Send a Comment or Submission’’
that corresponds with FAR Case 2009–
010. Follow the instructions provided to
complete the ‘‘Public Comment and
Submission Form.’’ Please include your
name, company name (if any), and
‘‘FAR Case 2009–010’’ on your attached
document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, FAR Secretariat (VPR),
1800 F Street, NW., Room 4041, ATTN:
Hada Flowers, Washington, DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–32, FAR case
2009–010, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Ms.
Millisa Gary, Procurement Analyst, at
(202) 501–0699 for clarification of
content. Please cite FAC 2005–32, FAR
case 2009–010. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements Section
6.2 of the OMB Memorandum M–09–10,
VerDate Nov<24>2008
13:57 Mar 30, 2009
Jkt 217001
14637
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
‘‘Initial Implementing Guidance for the
American Recovery and Reinvestment
Act of 2009,’’ (Pub. L. 111–5) (Recovery
Act). In addition, this rule enables the
Governmentwide Point of Entry (https:
//www.fedbizopps.gov) to be leveraged
for the purpose of fulfilling sections
1526(c)(4) and 1554 of Division A of the
Recovery Act.
On February 17, 2009, the President
signed the Recovery Act. On February
18, 2009, the Director of OMB issued
initial implementing guidance. One of
the provisions of the OMB guidance is
to provide accountability and
transparency relative to publicizing
contract actions. The OMB guidance
requires that the FAR be amended to
reflect:
1. Unique requirements for posting of
presolicitation notices.
2. Unique requirements for
announcing contract awards.
3. Unique requirements for entering
awards into the Federal Procurement
Data System (FPDS).
4. Unique requirements for actions
that are not fixed-price or competitive.
The Councils do not expect this
interim rule to 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
OMB guidance affects only internal
government operations and provides a
strong preference for using small
businesses for the Recovery Act
programs wherever possible. The
interim rule does not impose any
additional requirements on small
businesses. Therefore, an Initial
Regulatory Flexibility Analysis has not
been performed. The Councils will
consider comments from small entities
concerning the affected FAR Parts 4, 5,
8, 13, and 16 in accordance with 5
U.S.C. 610. Interested parties must
submit such comments separately and
should cite 5 U.S.C. 601, et seq., (FAC
2005–32, FAR Case 2009–010) in
correspondence.
B. Discussion
D. Paperwork Reduction Act
In order to implement Section 6.2 of
the OMB Guidance M–09–10, FAR Parts
4, 5, 8, 13, and 16 are amended as
follows:
1. Part 4 requires the contracting
officer to enter data in the Federal
Procurement Data System on any action
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5), in
accordance with the instructions at
https://www.fpds.gov.
2. Subpart 5.7 is added to direct the
contracting officer to use the
Governmentwide Point of Entry
(https://www.fedbizopps.gov) to (a)
identify the action as funded by the
Recovery Act; (b) post pre-award notices
for orders exceeding $25,000 for
‘‘informational purposes only;’’ (c)
describe supplies and services
(including construction) in a narrative
that is clear and unambiguous to the
general public; and (d) provide a
rationale for awarding any action,
including modifications and orders, that
is not both fixed-price and competitive,
and include the rationale for using other
than a fixed-price and/or competitive
approach.
3. Parts 8, 13, and 16 are amended to
reflect the new posting requirements for
orders at Subpart 5.7.
This is a significant regulatory action
and, therefore, was subject to Office of
Management and Budget (OMB) review
under Section 6(b) of Executive Order
12866, Regulatory Planning and Review,
The Paperwork Reduction Act does
not apply because the changes to the
FAR do not impose information
collection requirements that require the
approval of the Office of Management
and Budget under 44 U.S.C. Chapter 35,
et seq.
PO 00000
Frm 00017
Fmt 4701
Sfmt 4700
C. Regulatory Flexibility Act
E. Determination To Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of Defense
(DoD), the Administrator of General
Services (GSA), and the Administrator
of the National Aeronautics and Space
Administration (NASA) that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary because the
Recovery Act became effective upon
enactment, and contracts using funds
appropriated by the Act will soon be
ready to award. However, pursuant to
Public Law 98–577 and FAR 1.501, the
Councils will consider public comments
received in response to this interim rule
in the formation of the final rule.
List of Subjects in 48 CFR Parts 4, 5, 8,
13, and 16
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 4, 5, 8, 13, and 16
as set forth below:
■
E:\FR\FM\31MRR2.SGM
31MRR2
14638
Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
■
1. The authority citation for 48 CFR
parts 4, 5, 8, 13, and 16 continues to
read as follows:
includes Federal Supply Schedule
contracts (including Blanket Purchase
Agreements under Subpart 8.4).
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 42 U.S.C. 2473(c).
5.704
PART 4—ADMINISTRATIVE MATTERS
2. Amend section 4.605 by adding
paragraph (c) to read as follows:
■
4.605
Procedures.
*
*
*
*
*
(c) The contracting officer, when
entering data in FPDS, shall use the
instructions at https://www.fpds.gov to
identify any action funded in whole or
in part by the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111–
5).
PART 5—PUBLICIZING CONTRACT
ACTIONS
■
3. Add Subpart 5.7 to read as follows:
Subpart 5.7—Publicizing Requirements
under the American Recovery and
Reinvestment Act of 2009
Sec.
5.701
5.702
5.703
5.704
5.705
Subpart 5.7—Publicizing Requirements
under the American Recovery and
Reinvestment Act of 2009
5.701
Scope.
This subpart prescribes posting
requirements for presolicitation and
award notices for actions funded in
whole or in part by the American
Recovery and Reinvestment Act of 2009
(Pub. L. 111–5) (Recovery Act). The
requirements of this subpart enhance
transparency to the public.
5.702
Applicability.
This subpart applies to all actions
expected to exceed $25,000 funded in
whole or in part by the Recovery Act.
Unlike subparts 5.2 and 5.3, this subpart
includes additional requirements for
orders and for actions that are not both
fixed-price and competitive.
sroberts on PROD1PC70 with RULES
5.703
Definition.
As used in this subpart—
Task or delivery order contract means
a ‘‘delivery order contract,’’ and a ‘‘task
order contract,’’ as defined in 16.501–1.
For example, it includes
Governmentwide Acquisition Contracts
(GWACs), multi-agency contracts
(MACs), and other indefinite-delivery/
indefinite-quantity contracts, whether
single award or multiple award. It also
VerDate Nov<24>2008
13:57 Mar 30, 2009
Jkt 217001
(2) A contract is
awarded that is not
fixed-price..
(3) A contract is
awarded without
competition..
(4) An order is issued
under a new or existing single award
IDIQ contract.
(5) An order is issued
under a new or existing multiple
award IDIQ contract.
Publicizing-post-award.
Follow usual publication procedures
at 5.301, except that the following
supersede the exceptions at 5.301(b)(3)
through (8):
(a) For any contract action exceeding
$500,000, including all modifications
and orders under task or delivery order
contracts, publicize the award notice
and ensure that the description required
by 5.207(a)(16) includes a narrative of
the products and services (including
construction) that is clear and
unambiguous to the general public.
(b) Regardless of dollar value, if the
contract action, including all
modifications and orders under task or
delivery order contracts, is not both
fixed-price and competitively awarded,
publicize the award notice and include
in the description the rationale for using
other than a fixed-priced and/or
competitive approach. These notices
and the rationale will be available to the
public at the GPE, so do not include any
proprietary information or information
that would compromise national
security. The following table provides
examples for when a rationale is
required.
POSTING OF RATIONALE—EXAMPLES
Description of
contract action
(1) A contract is competitively awarded
and is fixed-price.
PO 00000
Description of
contract action
Publicizing-preaward.
(a)(1) Follow the publication
procedures at 5.201.
(2) In addition, notices of proposed
contract actions are required for orders
of $25,000 or more, funded in whole or
in part by the Recovery Act, which are
issued under task or delivery order
contracts. These notices are for
‘‘informational purposes only,’’
therefore, 5.203 does not apply.
Contracting officers should concurrently
use their usual solicitation practice (e.g.,
e-Buy).
(b) Contracting officers shall use the
instructions at the Governmentwide
Point of Entry (GPE) (https://
www.fedbizopps.gov) to identify
proposed contract actions funded in
whole or in part by the Recovery Act.
(c) Ensure that the description
required by 5.207(a)(16) includes a
narrative of the products and services
(including construction) that is clear
and unambiguous to the general public.
5.705
Scope.
Applicability.
Definitions.
Publicizing-preaward.
Publicizing-post-award.
POSTING OF RATIONALE—EXAMPLES—
Continued
Frm 00018
Fmt 4701
Posting rationale on
special section of
recovery.gov
Not Required.
Sfmt 4700
(6) A modification is
issued.
(7) A contract or
order is awarded
pursuant to a small
business contracting authority
(e.g., SBA’s section
8(a) program).
Posting rationale on
special section of
recovery.gov
Required
Required
Required if order is
made under a contract described in
(2) or (3).
Required if one or
both of the following conditions
exist:
(i) The order is not
fixed-price.
(ii) The order is
awarded pursuant
to an exception to
the competition requirements applicable to the underlying vehicle (e.g.,
award is made pursuant to an exception to the fair opportunity process).
Required if modification is made:
(i) To a contract described in (2) or (3)
above; or
(ii) To an order requiring posting as described in (4) or (5)
above.
Required if one or
both of the following conditions
exist:
(i) The contract or
order is not fixedprice;
(ii) The contract or
order was not
awarded using
competition (e.g., a
non-competitive
8(a) award).
(c) Contracting officers shall use the
instructions at the Governmentwide
Point of Entry (GPE) (https://
www.fedbizopps.gov) to identify actions
funded in whole or in part by the
Recovery Act.
PART 8—REQUIRED SOURCES OF
SUPPLIES AND SERVICES
4. Amend section 8.404 by revising
the last sentence in paragraph (a); and
by adding a new paragraph (e) to read
as follows:
■
E:\FR\FM\31MRR2.SGM
31MRR2
Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
8.404
Use of Federal Supply Schedules.
(a) General.* * * Therefore, when
establishing a BPA (as authorized by
13.303–2(c)(3)), or placing orders under
Federal Supply Schedule contracts
using the procedures of 8.405, ordering
activities shall not seek competition
outside of the Federal Supply Schedules
or synopsize the requirement; but see
paragraph (e) of this section for orders
(including orders issued under BPAs)
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5).
*
*
*
*
*
(e) Publicizing contract actions
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5):
(1) Notices of proposed MAS orders
(including orders issued under BPAs)
that are for ‘‘informational purposes
only’’ exceeding $25,000 shall follow
the procedures in 5.704 for posting
orders.
(2) Award notices for MAS orders
(including orders issued under BPAs)
shall follow the procedures in 5.705.
PART 13—SIMPLIFIED ACQUISITION
PROCEDURES
5. Amend section 13.105 by adding
paragraph (d) to read as follows:
■
13.105 Synopsis and posting
requirements.
*
*
*
*
*
(d) When publicizing contract actions
funded in whole or in part by the
American Recovery and Reinvestment
Act of 2009 (Pub. L. 111–5):
(1) Notices of proposed contract
actions shall follow the procedures in
5.704 for posting orders.
(2) Award notices shall follow the
procedures in 5.705.
PART 16—TYPES OF CONTRACTS
6. Amend section 16.505 by revising
paragraph (a)(1); and adding paragraph
(a)(10) to read as follows:
■
sroberts on PROD1PC70 with RULES
16.505
Ordering.
(a) * * *
(1) In general, the contracting officer
does not synopsize orders under
indefinite-delivery contracts; but see
16.505(a)(10) for orders funded in whole
or in part by the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111–
5).
*
*
*
*
*
(10) Publicize orders funded in whole
or in part by the American Recovery and
Reinvestment Act of 2009 (Pub. L. 111–
5) as follows:
VerDate Nov<24>2008
13:57 Mar 30, 2009
Jkt 217001
(i) Notices of proposed orders shall
follow the procedures in 5.704 for
posting orders.
(ii) Award notices for orders shall
follow the procedures in 5.705.
*
*
*
*
*
[FR Doc. E9–7019 Filed 3–30–09; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 4 and 52
[FAC 2005–32; FAR Case 2009–009; Item
IV; Docket 2009–0011, Sequence 1]
RIN 9000–AL21
Federal Acquisition Regulation; FAR
Case 2009–009, American Recovery
and Reinvestment Act of 2009 (the
Recovery Act)—Reporting
Requirements
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council (the
Councils) are issuing an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement section
1512 of Division A of the American
Recovery and Reinvestment Act of 2009,
which requires contractors to report on
their use of Recovery Act funds.
DATES: Effective Date: March 31, 2009
Applicability Date: The rule applies to
solicitations issued and contracts
awarded on or after the effective date of
this rule. Contracting officers shall
modify, on a bilateral basis, in
accordance with FAR 1.108(d)(3),
existing contracts to include the FAR
clause if Recovery Act funds will be
used. In the event that a contractor
refuses to accept such a modification,
the contractor will not be eligible for
receipt of Recovery Act funds.
Comment Date: Interested parties
should submit written comments to the
FAR Secretariat on or before June 1,
2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–32, FAR case
2009–009, by any of the following
methods:
PO 00000
Frm 00019
Fmt 4701
Sfmt 4700
14639
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2009–009’’ under
the heading ‘‘Comment or Submission’’.
Select the link ‘‘Send a Comment or
Submission’’ that corresponds with FAR
Case 2009–009. Follow the instructions
provided to complete the ‘‘Public
Comment and Submission Form’’.
Please include your name, company
name (if any), and ‘‘FAR Case 2009–
009’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, FAR Secretariat (VPR),
1800 F Street, NW., Room 4041, Attn:
Hada Flowers, Washington, DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–32, FAR case
2009–009, in all correspondence related
to this case. All comments received will
be posted without change to https://
www.regulations.gov, including any
personal and/or business confidential
information provided.
FOR FURTHER INFORMATION CONTACT: Mr.
Ernest Woodson, Procurement Analyst,
at (202) 501–3775 for clarification of
content. Please cite FAC 2005–32, FAR
case 2009–009. For information
pertaining to status or publication
schedules, contact the FAR Secretariat
at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
On February 17, 2009, the President
signed Public Law 111–5, the American
Recovery and Reinvestment Act of 2009
(the ‘‘Recovery Act’’), including a
number of provisions to be
implemented in Federal Government
contracts. This interim rule implements
section 1512, which is also known as
the ‘‘Jobs Accountability Act.’’
Subsection (c) of section 1512 requires
contractors that receive awards (or
modifications to existing awards)
funded, in whole or in part, by the
Recovery Act to report quarterly on the
use of the funds.
This FAR case adds a new subpart
4.15, and a new clause, 52.204–11.
Contracting officers must include the
new clause in solicitations and contracts
funded in whole or in part with
Recovery Act funds, except classified
solicitations and contracts. Commercial
item contracts and Commercially
Available Off-The-Shelf (COTS) item
contracts are covered, as well as actions
under the simplified acquisition
threshold.
Contracting officers who obligate
Recovery Act funds on existing
contracts or orders must modify those
contracts to add the new clause.
E:\FR\FM\31MRR2.SGM
31MRR2
]]>Agencies
[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14636-14639]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7019]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 5, 8, 13, and 16
[FAC 2005-32; FAR Case 2009-010; Item III; Docket 2009-0010, Sequence
1]
RIN 9000-AL24
Federal Acquisition Regulation; FAR Case 2009-010, American
Recovery and Reinvestment Act of 2009 (the Recovery Act)--Publicizing
Contract Actions
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Interim rule with request for comments.
-----------------------------------------------------------------------
[[Page 14637]]
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement the
Office of Management and Budget (OMB) Guidance M-09-10, dated February
18, 2009, entitled, ``Initial Implementing Guidance for the American
Recovery and Reinvestment Act of 2009'' (the Recovery Act), with
respect to publicizing contract actions.
DATES: Effective Date: March 31, 2009
Applicability Date: This rule applies on or after the effective
date of this rule to: (1) Solicitations issued, (2) contracts awarded,
and (3) orders issued under existing task and delivery order contracts
as defined in the rule.
Comment Date: Interested parties should submit written comments to
the FAR Secretariat on or before June 1, 2009 to be considered in the
formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2009-
010, by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2009-010'' under the heading ``Comment or Submission.''
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2009-010. Follow the instructions provided to complete the
``Public Comment and Submission Form.'' Please include your name,
company name (if any), and ``FAR Case 2009-010'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, FAR Secretariat
(VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington,
DC 20405.
Instructions: Please submit comments only and cite FAC 2005-32, FAR
case 2009-010, in all correspondence related to this case. All comments
received will be posted without change to https://www.regulations.gov,
including any personal and/or business confidential information
provided.
FOR FURTHER INFORMATION CONTACT: Ms. Millisa Gary, Procurement Analyst,
at (202) 501-0699 for clarification of content. Please cite FAC 2005-
32, FAR case 2009-010. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements Section 6.2 of the OMB Memorandum M-
09-10, ``Initial Implementing Guidance for the American Recovery and
Reinvestment Act of 2009,'' (Pub. L. 111-5) (Recovery Act). In
addition, this rule enables the Governmentwide Point of Entry (https://www.fedbizopps.gov) to be leveraged for the purpose of fulfilling
sections 1526(c)(4) and 1554 of Division A of the Recovery Act.
On February 17, 2009, the President signed the Recovery Act. On
February 18, 2009, the Director of OMB issued initial implementing
guidance. One of the provisions of the OMB guidance is to provide
accountability and transparency relative to publicizing contract
actions. The OMB guidance requires that the FAR be amended to reflect:
1. Unique requirements for posting of presolicitation notices.
2. Unique requirements for announcing contract awards.
3. Unique requirements for entering awards into the Federal
Procurement Data System (FPDS).
4. Unique requirements for actions that are not fixed-price or
competitive.
B. Discussion
In order to implement Section 6.2 of the OMB Guidance M-09-10, FAR
Parts 4, 5, 8, 13, and 16 are amended as follows:
1. Part 4 requires the contracting officer to enter data in the
Federal Procurement Data System on any action funded in whole or in
part by the American Recovery and Reinvestment Act of 2009 (Pub. L.
111-5), in accordance with the instructions at https://www.fpds.gov.
2. Subpart 5.7 is added to direct the contracting officer to use
the Governmentwide Point of Entry (https://www.fedbizopps.gov) to (a)
identify the action as funded by the Recovery Act; (b) post pre-award
notices for orders exceeding $25,000 for ``informational purposes
only;'' (c) describe supplies and services (including construction) in
a narrative that is clear and unambiguous to the general public; and
(d) provide a rationale for awarding any action, including
modifications and orders, that is not both fixed-price and competitive,
and include the rationale for using other than a fixed-price and/or
competitive approach.
3. Parts 8, 13, and 16 are amended to reflect the new posting
requirements for orders at Subpart 5.7.
This is a significant regulatory action and, therefore, was subject
to Office of Management and Budget (OMB) 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 Councils do not expect this interim rule to 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 OMB guidance affects only internal government operations
and provides a strong preference for using small businesses for the
Recovery Act programs wherever possible. The interim rule does not
impose any additional requirements on small businesses. Therefore, an
Initial Regulatory Flexibility Analysis has not been performed. The
Councils will consider comments from small entities concerning the
affected FAR Parts 4, 5, 8, 13, and 16 in accordance with 5 U.S.C. 610.
Interested parties must submit such comments separately and should cite
5 U.S.C. 601, et seq., (FAC 2005-32, FAR Case 2009-010) in
correspondence.
D. Paperwork Reduction Act
The Paperwork Reduction Act does not apply because the changes to
the FAR do not impose information collection requirements that require
the approval of the Office of Management and Budget under 44 U.S.C.
Chapter 35, et seq.
E. Determination To Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense (DoD), the Administrator of General Services (GSA), and the
Administrator of the National Aeronautics and Space Administration
(NASA) that urgent and compelling reasons exist to promulgate this
interim rule without prior opportunity for public comment. This action
is necessary because the Recovery Act became effective upon enactment,
and contracts using funds appropriated by the Act will soon be ready to
award. However, pursuant to Public Law 98-577 and FAR 1.501, the
Councils will consider public comments received in response to this
interim rule in the formation of the final rule.
List of Subjects in 48 CFR Parts 4, 5, 8, 13, and 16
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 5, 8, 13, and 16 as
set forth below:
[[Page 14638]]
0
1. The authority citation for 48 CFR parts 4, 5, 8, 13, and 16
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).
PART 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.605 by adding paragraph (c) to read as follows:
4.605 Procedures.
* * * * *
(c) The contracting officer, when entering data in FPDS, shall use
the instructions at https://www.fpds.gov to identify any action funded
in whole or in part by the American Recovery and Reinvestment Act of
2009 (Pub. L. 111-5).
PART 5--PUBLICIZING CONTRACT ACTIONS
0
3. Add Subpart 5.7 to read as follows:
Subpart 5.7--Publicizing Requirements under the American Recovery
and Reinvestment Act of 2009
Sec.
5.701 Scope.
5.702 Applicability.
5.703 Definitions.
5.704 Publicizing-preaward.
5.705 Publicizing-post-award.
Subpart 5.7--Publicizing Requirements under the American Recovery
and Reinvestment Act of 2009
5.701 Scope.
This subpart prescribes posting requirements for presolicitation
and award notices for actions funded in whole or in part by the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act). The requirements of this subpart enhance transparency
to the public.
5.702 Applicability.
This subpart applies to all actions expected to exceed $25,000
funded in whole or in part by the Recovery Act. Unlike subparts 5.2 and
5.3, this subpart includes additional requirements for orders and for
actions that are not both fixed-price and competitive.
5.703 Definition.
As used in this subpart--
Task or delivery order contract means a ``delivery order
contract,'' and a ``task order contract,'' as defined in 16.501-1. For
example, it includes Governmentwide Acquisition Contracts (GWACs),
multi-agency contracts (MACs), and other indefinite-delivery/
indefinite-quantity contracts, whether single award or multiple award.
It also includes Federal Supply Schedule contracts (including Blanket
Purchase Agreements under Subpart 8.4).
5.704 Publicizing-preaward.
(a)(1) Follow the publication procedures at 5.201.
(2) In addition, notices of proposed contract actions are required
for orders of $25,000 or more, funded in whole or in part by the
Recovery Act, which are issued under task or delivery order contracts.
These notices are for ``informational purposes only,'' therefore, 5.203
does not apply. Contracting officers should concurrently use their
usual solicitation practice (e.g., e-Buy).
(b) Contracting officers shall use the instructions at the
Governmentwide Point of Entry (GPE) (https://www.fedbizopps.gov) to
identify proposed contract actions funded in whole or in part by the
Recovery Act.
(c) Ensure that the description required by 5.207(a)(16) includes a
narrative of the products and services (including construction) that is
clear and unambiguous to the general public.
5.705 Publicizing-post-award.
Follow usual publication procedures at 5.301, except that the
following supersede the exceptions at 5.301(b)(3) through (8):
(a) For any contract action exceeding $500,000, including all
modifications and orders under task or delivery order contracts,
publicize the award notice and ensure that the description required by
5.207(a)(16) includes a narrative of the products and services
(including construction) that is clear and unambiguous to the general
public.
(b) Regardless of dollar value, if the contract action, including
all modifications and orders under task or delivery order contracts, is
not both fixed-price and competitively awarded, publicize the award
notice and include in the description the rationale for using other
than a fixed-priced and/or competitive approach. These notices and the
rationale will be available to the public at the GPE, so do not include
any proprietary information or information that would compromise
national security. The following table provides examples for when a
rationale is required.
Posting of Rationale--Examples
------------------------------------------------------------------------
Posting rationale on special
Description of contract action section ofrecovery.gov
------------------------------------------------------------------------
(1) A contract is competitively awarded Not Required.
and is fixed-price.
(2) A contract is awarded that is not Required
fixed-price..
(3) A contract is awarded without Required
competition..
(4) An order is issued under a new or Required if order is made
existing single award IDIQ contract. under a contract described
in (2) or (3).
(5) An order is issued under a new or Required if one or both of
existing multiple award IDIQ contract. the following conditions
exist:
(i) The order is not fixed-
price.
(ii) The order is awarded
pursuant to an exception to
the competition
requirements applicable to
the underlying vehicle
(e.g., award is made
pursuant to an exception to
the fair opportunity
process).
(6) A modification is issued.............. Required if modification is
made:
(i) To a contract described
in (2) or (3) above; or
(ii) To an order requiring
posting as described in (4)
or (5) above.
(7) A contract or order is awarded Required if one or both of
pursuant to a small business contracting the following conditions
authority (e.g., SBA's section 8(a) exist:
program). (i) The contract or order is
not fixed-price;
(ii) The contract or order
was not awarded using
competition (e.g., a non-
competitive 8(a) award).
------------------------------------------------------------------------
(c) Contracting officers shall use the instructions at the
Governmentwide Point of Entry (GPE) (https://www.fedbizopps.gov) to
identify actions funded in whole or in part by the Recovery Act.
PART 8--REQUIRED SOURCES OF SUPPLIES AND SERVICES
0
4. Amend section 8.404 by revising the last sentence in paragraph (a);
and by adding a new paragraph (e) to read as follows:
[[Page 14639]]
8.404 Use of Federal Supply Schedules.
(a) General.* * * Therefore, when establishing a BPA (as authorized
by 13.303-2(c)(3)), or placing orders under Federal Supply Schedule
contracts using the procedures of 8.405, ordering activities shall not
seek competition outside of the Federal Supply Schedules or synopsize
the requirement; but see paragraph (e) of this section for orders
(including orders issued under BPAs) funded in whole or in part by the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5).
* * * * *
(e) Publicizing contract actions funded in whole or in part by the
American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
(1) Notices of proposed MAS orders (including orders issued under
BPAs) that are for ``informational purposes only'' exceeding $25,000
shall follow the procedures in 5.704 for posting orders.
(2) Award notices for MAS orders (including orders issued under
BPAs) shall follow the procedures in 5.705.
PART 13--SIMPLIFIED ACQUISITION PROCEDURES
0
5. Amend section 13.105 by adding paragraph (d) to read as follows:
13.105 Synopsis and posting requirements.
* * * * *
(d) When publicizing contract actions funded in whole or in part by
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5):
(1) Notices of proposed contract actions shall follow the
procedures in 5.704 for posting orders.
(2) Award notices shall follow the procedures in 5.705.
PART 16--TYPES OF CONTRACTS
0
6. Amend section 16.505 by revising paragraph (a)(1); and adding
paragraph (a)(10) to read as follows:
16.505 Ordering.
(a) * * *
(1) In general, the contracting officer does not synopsize orders
under indefinite-delivery contracts; but see 16.505(a)(10) for orders
funded in whole or in part by the American Recovery and Reinvestment
Act of 2009 (Pub. L. 111-5).
* * * * *
(10) Publicize orders funded in whole or in part by the American
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5) as follows:
(i) Notices of proposed orders shall follow the procedures in 5.704
for posting orders.
(ii) Award notices for orders shall follow the procedures in 5.705.
* * * * *
[FR Doc. E9-7019 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P
