Federal Acquisition Regulation; Federal Acquisition Circular 2005-32; Introduction, 14622-14623 [E9-7027]

Download as PDF 14622 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations and National Aeronautics and Space Administration (NASA). GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION via the Internet at http://acquisition.gov/ far. ACTION: Summary presentation of final and interim rules, and technical amendments and corrections. DEPARTMENT OF DEFENSE DATES: For effective dates and comment dates, see separate documents which follow. This document summarizes the Federal Acquisition Regulation (FAR) rules agreed to by the Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council in this Federal Acquisition Circular (FAC) 2005–32. A companion document, the Small Entity Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, is available FOR FURTHER INFORMATION CONTACT: For clarification of content, contact the analyst whose name appears in the table below in relation to each FAR case or subject area. Please cite FAC 2005–32 and specific FAR case number(s). Interested parties may also visit our Web site at http://acquisition.gov/far. For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501–4755. SUMMARY: 48 CFR Chapter 1 [Docket FAR–2009–0001, Sequence 3] Federal Acquisition Regulation; Federal Acquisition Circular 2005–32; Introduction AGENCIES: Department of Defense (DoD), General Services Administration (GSA), 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 (the Recovery Act)—Publicizing Contract Actions (Interim). American Recovery and Reinvestment Act of 2009 (the Recovery 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 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 VerDate Nov<24>2008 13:57 Mar 30, 2009 Jkt 217001 FAR case Analyst 2009–008 Murphy. 2009–012 Parnell. 2009–010 Gary. 2009–009 Woodson. 2009–011 2008–026 Chambers. Neurauter. for waivers under certain limited circumstances. under Section 1553 of the American Recovery and Reinvestment Act. 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 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 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, PO 00000 Frm 00002 Fmt 4701 Sfmt 4700 E:\FR\FM\31MRR2.SGM 31MRR2 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 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. sroberts on PROD1PC70 with RULES 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 orExecutive 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 VerDate Nov<24>2008 13:57 Mar 30, 2009 Jkt 217001 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. DEPARTMENT OF DEFENSE Item VI—GAO Access to Contractor Employees (Interim) (FAR Case 2008– 026) 48 CFR Parts 1, 5, 25, and 52 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). 14623 RIN 9000–AL22 Dated: March 25, 2009. Al Matera, Director, Office of Acquisition Policy. Federal Acquisition Circular Federal Acquisition Circular (FAC) 2005–32 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005–32 is effective March 31, 2009. Dated: March 24, 2009. Shay D. Assad, Director, Defense Procurement And Acquisition Policy. Dated: March 24, 2009. Rodney P. Lantier, Acting Senior Procurement Executive & Acting Deputy Chief Acquisition Officer Office of the Chief Acquisition Officer U.S. General Services Administration. Dated: March 24, 2009. William P. McNally, Assistant Administrator for Procurement, National Aeronautics and Space Administration. [FR Doc. E9–7027 Filed 3–30–09; 8:45 am] BILLING CODE 6820–EP–P PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION [FAC 2005–32; FAR Case 2009–008; Item I; Docket 2009–0008, Sequence 1] Federal Acquisition Regulation; FAR Case 2009–008, American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Buy American Requirements for Construction Material AGENCY: 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 (Councils) have agreed on an interim rule amending the Federal Acquisition Regulation (FAR) to implement the American Recovery and Reinvestment Act of 2009 (Pub. L. 111–5) (Recovery Act) with respect to the Buy American provision, section 1605 in Division A. This rule does not cover procurements funded with Federal financial assistance such as Federal grants. Additional guidance will be provided by the Office of Management and Budget with respect to the application of section 1605 to procurements funded with Federal financial assistance. 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 clauses for future orders, 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 2009–008, by any of the following methods: E:\FR\FM\31MRR2.SGM 31MRR2

Agencies

[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14622-14623]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7027]



[[Page 14621]]

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Part II





General Services Administration

Department of Defense

National Aeronautics and Space Administration





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48 CFR Parts 1, 3, 4, et al.



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Federal Acquisition Regulations; Federal Acquisition Circular 2005-32; 
FAR Case 2008-026; FAR Cases 2009-008, -009, -010, -011, and -012, 
American Recovery and Reinvestment Act of 2009 (the Recovery Act); 
Final Rules

Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules 
and Regulations

[[Page 14622]]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR-2009-0001, Sequence 3]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-32; Introduction

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

ACTION: Summary presentation of final and interim rules, and technical 
amendments and corrections.

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

SUMMARY: This document summarizes the Federal Acquisition Regulation 
(FAR) rules agreed to by the Civilian Agency Acquisition Council and 
the Defense Acquisition Regulations Council in this Federal Acquisition 
Circular (FAC) 2005-32. A companion document, the Small Entity 
Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, 
is available via the Internet at http://acquisition.gov/far.

DATES: For effective dates and comment dates, see separate documents 
which follow.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
the analyst whose name appears in the table below in relation to each 
FAR case or subject area. Please cite FAC 2005-32 and specific FAR case 
number(s). Interested parties may also visit our Web site at http://acquisition.gov/far. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

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


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 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,

[[Page 14623]]

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 orExecutive 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.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 2005-32 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
Administration.
    Unless otherwise specified, all Federal Acquisition Regulation 
(FAR) and other directive material contained in FAC 2005-32 is 
effective March 31, 2009.

    Dated: March 24, 2009.

Shay D. Assad,

Director, Defense Procurement And Acquisition Policy.

    Dated: March 24, 2009.

Rodney P. Lantier,

Acting Senior Procurement Executive & Acting Deputy Chief 
Acquisition Officer Office of the Chief Acquisition Officer U.S. 
General Services Administration.

    Dated: March 24, 2009.

William P. McNally,

Assistant Administrator for Procurement, National Aeronautics and 
Space Administration.

[FR Doc. E9-7027 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P