Federal Acquisition Regulation; Federal Acquisition Circular 2005-32; Small Entity Compliance Guide, 14651-14652 [E9-7024]

Download as PDF 14651 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. Amend section 52.214–26 by revising the date of the clause and paragraph (c) to read as follows: ■ 52.214–26 Bidding. Audit and Records—Sealed * * * * * * * * * * * * * * * [FR Doc. E9–7030 Filed 3–30–09; 8:45 am] BILLING CODE 6820–EP–P * (c) Comptroller General. In the case of pricing any modification, the Comptroller General of the United States, or an authorized representative, shall have the same rights as specified in paragraph (b) of this clause and also the right to interview any current employee regarding such transactions. * * (End of clause) Audit and Records-Sealed Bidding (MAR 2009) * (d) Comptroller General. (1) The Comptroller General of the United States, or an authorized representative, shall have access to and the right to examine any of the Contractor’s directly pertinent records involving transactions related to this contract or a subcontract hereunder and to interview any current employee regarding such transactions. DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION * (End of clause) 4. Amend section 52.215–2 by revising the date of the clause and paragraph (d)(1) to read as follows: 48 CFR Chapter 1 52.215–2 Federal Acquisition Regulation; Federal Acquisition Circular 2005–32; Small Entity Compliance Guide ■ * * [Docket FAR–2009–0002, Sequence 3] Audit and Records—Negotiation. * * * Audit and Records—Negotiation (MAR 2009) * * * * AGENCIES: Department of Defense (DoD), General Services Administration (GSA), * and National Aeronautics and Space Administration (NASA). ACTION: Small Entity Compliance Guide. SUMMARY: This document is issued under the joint authority of the Secretary of Defense, the Administrator of General Services and the Administrator of the National Aeronautics and Space Administration. This Small Entity Compliance Guide has been prepared in accordance with Section 212 of the Small Business Regulatory Enforcement Fairness Act of 1996. It consists of a summary of rules appearing in Federal Acquisition Circular (FAC) 2005–32 which amend the FAR. An asterisk (*) next to a rule indicates that a regulatory flexibility analysis has been prepared. Interested parties may obtain further information regarding these rules by referring to FAC 2005–32 which precedes this document. These documents are also available via the Internet at https:// www.regulations.gov. FOR FURTHER INFORMATION CONTACT: Hada Flowers, FAR Secretariat, (202) 208–7282. For clarification of content, contact the analyst whose name appears in the table below. LIST OF RULES IN FAC 2005–32 Item Subject I ..................... American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Buy American Requirements for Construction Material (Interim). American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Whistleblower Protections (Interim). American Recovery and Reinvestment Act of 2009 (theRecovery Act)—Publicizing Contract Actions (Interim). American Recovery and Reinvestment Act of 2009 (theRecovery Act)—Reporting Requirements (Interim). American Recovery and Reinvestment Act of 2009 (the Recovery Act)—GAO/IG Access (Interim). GAO Access to Contractor Employees (Interim) ........................................................................... II .................... III ................... IV* ................. V ................... VI .................. SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the actual revisions and/or amendments to these FAR cases, refer to the specific item number and subject set forth in the documents following these item summaries. FAC 2005–32 amends the FAR as specified below: sroberts on PROD1PC70 with RULES Item I—American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Buy American Requirements for Construction Material (Interim) (FAR Case 2009–008) This interim rule implements the Buy American provision, section 1605, of the American Recovery and Reinvestment Act of 2009. It prohibits the use of funds appropriated for the Recovery Act for VerDate Nov<24>2008 13:57 Mar 30, 2009 Jkt 217001 FAR case any project for the construction, alteration, maintenance, or repair of a public building or public work unless all of the iron, steel, and manufactured goods used in the project are produced in the United States. However, section 1605 requires that the Buy American requirement be applied in a manner consistent with U.S. obligations under international agreements. Moreover, because Congress intended that least developed countries be excepted from section 1605, least developed countries can continue to be treated as designated countries. Section 1605 also provides for waivers under certain limited circumstances. PO 00000 Frm 00031 Fmt 4701 Sfmt 4700 Analyst 2009–008 Murphy. 2009–012 Parnell. 2009–010 Gary. 2009–009 Woodson. 2009–011 Chambers. 2008–026 Neurauter. Item II—American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Whistleblower Protections (Interim) (FAR Case 2009–012) Subpart 3.9 of the Federal Acquisition Regulation (FAR) is revised to add section 3.907. Section 3.907 provides procedures for whistleblower protection, when using funds appropriated or otherwise provided by the American Recovery and Reinvestment Act of 2009 (Pub. L. 111– 5). Section 3.907 provides that nonFederal employers are prohibited from discharging, demoting, or discriminating against employees as a reprisal for disclosing certain covered information to certain categories of Government officials. This section E:\FR\FM\31MRR2.SGM 31MRR2 14652 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations further provides definitions relevant to the statute; establishes time periods within which the Inspector General and the agency head must take action with regard to a complaint filed by a contractor employee; establishes procedures for access to investigative files of the Inspector General; and provides for remedies and enforcement authority. A new clause 52.203–15 is added to require contractors to post rights and remedies for whistleblower protections under Section 1553 of the American Recovery and Reinvestment Act. Item III—American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Publicizing Contract Actions (Interim) (FAR Case 2009–010) sroberts on PROD1PC70 with RULES This interim rule implements the Office of Management and Budget’s Guidance, M–09–10, ‘‘Initial Implementing Guidance for the American Recovery and Reinvestment Act of 2009,’’ dated February 18, 2009, section 6.2. Federal Acquisition Regulation (FAR) 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. Subpart 5.7 is added to direct the contracting officer to use the Governmentwide Point of Entry (https://www.fedbizopps.gov) to (1) identify the action as funded by the Recovery Act; (2) post pre-award notices for orders exceeding $25,000 for ‘‘informational purposes only;’’ (3) describe supplies and services (including construction) in a narrative that is clear and unambiguous to the general public; and (4) 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 VerDate Nov<24>2008 13:57 Mar 30, 2009 Jkt 217001 than a fixed-price and/or competitive approach. Parts 8, 13, and 16 are amended to reflect the new posting requirements for orders at Subpart 5.7. Item IV—American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Reporting Requirements (Interim) (FAR Case 2009–009) This interim rule implements 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. The rule 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. This clause applies to Commercial item contracts and Commercially-Available-Off-The-Shelf (COTS) item contracts as well as actions under the Simplified Acquisition Threshold. Contracting officers who wish to use Recovery Act funds on existing contracts should modify those contracts to add the clause. Reports from contractors for all work funded, in whole or in part, by the Recovery Act, and for which an invoice is submitted prior to June 30, 2009, are due no later than July 10, 2009. Thereafter, reports shall be submitted no later than the 10th day after the end of each calendar quarter. Item V—American Recovery and Reinvestment Act of 2009 (the Recovery Act)—GAO/IG Access (Interim) (FAR Case 2009–011) The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement Sections 902, 1514, and 1515 of the American Recovery and Reinvestment Act of 2009. PO 00000 Frm 00032 Fmt 4701 Sfmt 4700 Collectively, these Sections provide for the audit and review of both contracts and subcontracts, and the ability to interview such contractor and subcontractor personnel under contracts containing Recovery Act funds. These Recovery Act provisions are implemented in new alternate clauses to 52.212–5, ‘‘Contract Terms and Conditions Required to Implement Statutes or Executive Orders– Commercial Items,’’ 52–214–26, ‘‘Audit and Records–Sealed Bidding,’’ and 52.215–2, ‘‘Audit and Records– Negotiation.’’ For the Comptroller General these alternate clauses provide specific authority to audit contracts and subcontracts and to interview contractor and subcontractor employees under contracts using Recovery Act funds. Agency inspector generals receive the same authorities, with the exception of interviewing subcontractor employees. Item VI—GAO Access to Contractor Employees (Interim) (FAR Case 2008– 026) This interim rule amends the Federal Acquisition Regulation (FAR) Parts 12 and 52. Clauses 52.215–2, Audit and Records-Negotiation and 52.214–26, Audit and Records-Sealed Bidding are being modified to allow the Government Accountability Office to interview current contractor employees when conducting audits. The rule will not apply to the acquisition of commercial items; therefore, FAR 12.503 will be amended to add the exemption of this rule. This change implements Section 871 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA) (Pub. L. 110–417). Dated: March 25, 2009. Al Matera, Director, Office of Acquisition Policy. [FR Doc. E9–7024 Filed 3–30–09; 8:45 am] BILLING CODE 6820–EP–P E:\FR\FM\31MRR2.SGM 31MRR2

Agencies

[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14651-14652]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7024]


-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR-2009-0002, Sequence 3]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-32; Small Entity Compliance Guide

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Small Entity Compliance Guide.

-----------------------------------------------------------------------

SUMMARY: This document is issued under the joint authority of the 
Secretary of Defense, the Administrator of General Services and the 
Administrator of the National Aeronautics and Space Administration. 
This Small Entity Compliance Guide has been prepared in accordance with 
Section 212 of the Small Business Regulatory Enforcement Fairness Act 
of 1996. It consists of a summary of rules appearing in Federal 
Acquisition Circular (FAC) 2005-32 which amend the FAR. An asterisk (*) 
next to a rule indicates that a regulatory flexibility analysis has 
been prepared. Interested parties may obtain further information 
regarding these rules by referring to FAC 2005-32 which precedes this 
document. These documents are also available via the Internet at https://www.regulations.gov.

FOR FURTHER INFORMATION CONTACT: Hada Flowers, FAR Secretariat, (202) 
208-7282. For clarification of content, contact the analyst whose name 
appears in the table below.

                      List of Rules in FAC 2005-32
------------------------------------------------------------------------
      Item               Subject           FAR case          Analyst
------------------------------------------------------------------------
I...............  American Recovery           2009-008  Murphy.
                   and Reinvestment
                   Act of 2009 (the
                   Recovery Act)--Buy
                   American
                   Requirements for
                   Construction
                   Material (Interim).
II..............  American Recovery           2009-012  Parnell.
                   and Reinvestment
                   Act of 2009 (the
                   Recovery Act)--
                   Whistleblower
                   Protections
                   (Interim).
III.............  American Recovery           2009-010  Gary.
                   and Reinvestment
                   Act of 2009
                   (theRecovery Act)--
                   Publicizing
                   Contract Actions
                   (Interim).
IV*.............  American Recovery           2009-009  Woodson.
                   and Reinvestment
                   Act of 2009
                   (theRecovery Act)--
                   Reporting
                   Requirements
                   (Interim).
V...............  American Recovery           2009-011  Chambers.
                   and Reinvestment
                   Act of 2009 (the
                   Recovery Act)--GAO/
                   IG Access (Interim).
VI..............  GAO Access to               2008-026  Neurauter.
                   Contractor
                   Employees (Interim).
------------------------------------------------------------------------


SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the 
actual revisions and/or amendments to these FAR cases, refer to the 
specific item number and subject set forth in the documents following 
these item summaries.
    FAC 2005-32 amends the FAR as specified below:

Item I--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Buy American Requirements for Construction Material (Interim) 
(FAR Case 2009-008)

    This interim rule implements the Buy American provision, section 
1605, of the American Recovery and Reinvestment Act of 2009. It 
prohibits the use of funds appropriated for the Recovery Act for any 
project for the construction, alteration, maintenance, or repair of a 
public building or public work unless all of the iron, steel, and 
manufactured goods used in the project are produced in the United 
States. However, section 1605 requires that the Buy American 
requirement be applied in a manner consistent with U.S. obligations 
under international agreements. Moreover, because Congress intended 
that least developed countries be excepted from section 1605, least 
developed countries can continue to be treated as designated countries. 
Section 1605 also provides for waivers under certain limited 
circumstances.

Item II--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Whistleblower Protections (Interim) (FAR Case 2009-012)

    Subpart 3.9 of the Federal Acquisition Regulation (FAR) is revised 
to add section 3.907. Section 3.907 provides procedures for 
whistleblower protection, when using funds appropriated or otherwise 
provided by the American Recovery and Reinvestment Act of 2009 (Pub. L. 
111-5).
    Section 3.907 provides that non-Federal employers are prohibited 
from discharging, demoting, or discriminating against employees as a 
reprisal for disclosing certain covered information to certain 
categories of Government officials. This section

[[Page 14652]]

further provides definitions relevant to the statute; establishes time 
periods within which the Inspector General and the agency head must 
take action with regard to a complaint filed by a contractor employee; 
establishes procedures for access to investigative files of the 
Inspector General; and provides for remedies and enforcement authority.
    A new clause 52.203-15 is added to require contractors to post 
rights and remedies for whistleblower protections under Section 1553 of 
the American Recovery and Reinvestment Act.

Item III--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Publicizing Contract Actions (Interim) (FAR Case 2009-010)

    This interim rule implements the Office of Management and Budget's 
Guidance, M-09-10, ``Initial Implementing Guidance for the American 
Recovery and Reinvestment Act of 2009,'' dated February 18, 2009, 
section 6.2. Federal Acquisition Regulation (FAR) 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. Subpart 5.7 is added to 
direct the contracting officer to use the Governmentwide Point of Entry 
(https://www.fedbizopps.gov) to (1) identify the action as funded by 
the Recovery Act; (2) post pre-award notices for orders exceeding 
$25,000 for ``informational purposes only;'' (3) describe supplies and 
services (including construction) in a narrative that is clear and 
unambiguous to the general public; and (4) 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. Parts 8, 13, and 
16 are amended to reflect the new posting requirements for orders at 
Subpart 5.7.

Item IV--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Reporting Requirements (Interim) (FAR Case 2009-009)

    This interim rule implements 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. The rule 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. This clause applies to Commercial item 
contracts and Commercially-Available-Off-The-Shelf (COTS) item 
contracts as well as actions under the Simplified Acquisition 
Threshold.
    Contracting officers who wish to use Recovery Act funds on existing 
contracts should modify those contracts to add the clause.
    Reports from contractors for all work funded, in whole or in part, 
by the Recovery Act, and for which an invoice is submitted prior to 
June 30, 2009, are due no later than July 10, 2009. Thereafter, reports 
shall be submitted no later than the 10th day after the end of each 
calendar quarter.

Item V--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--GAO/IG Access (Interim) (FAR Case 2009-011)

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (Councils) are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement Sections 902, 1514, 
and 1515 of the American Recovery and Reinvestment Act of 2009.
    Collectively, these Sections provide for the audit and review of 
both contracts and subcontracts, and the ability to interview such 
contractor and subcontractor personnel under contracts containing 
Recovery Act funds.
    These Recovery Act provisions are implemented in new alternate 
clauses to 52.212-5, ``Contract Terms and Conditions Required to 
Implement Statutes or Executive Orders-Commercial Items,'' 52-214-26, 
``Audit and Records-Sealed Bidding,'' and 52.215-2, ``Audit and 
Records-Negotiation.'' For the Comptroller General these alternate 
clauses provide specific authority to audit contracts and subcontracts 
and to interview contractor and subcontractor employees under contracts 
using Recovery Act funds. Agency inspector generals receive the same 
authorities, with the exception of interviewing subcontractor 
employees.

Item VI--GAO Access to Contractor Employees (Interim) (FAR Case 2008-
026)

    This interim rule amends the Federal Acquisition Regulation (FAR) 
Parts 12 and 52. Clauses 52.215-2, Audit and Records-Negotiation and 
52.214-26, Audit and Records-Sealed Bidding are being modified to allow 
the Government Accountability Office to interview current contractor 
employees when conducting audits. The rule will not apply to the 
acquisition of commercial items; therefore, FAR 12.503 will be amended 
to add the exemption of this rule. This change implements Section 871 
of the Duncan Hunter National Defense Authorization Act for Fiscal Year 
2009 (NDAA) (Pub. L. 110-417).

    Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
 [FR Doc. E9-7024 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P
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