Federal Acquisition Regulation; FAR Case 2008-026, GAO Access to Contractor Employees, 14649-14651 [E9-7030]
Download as PDF
<![CDATA[
sroberts on PROD1PC70 with RULES
Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
(d)(1) The Comptroller General of the
United States, an appropriate Inspector
General appointed under section 3 or 8G
of the Inspector General Act of 1978 (5
U.S.C. App.), or an authorized
representative of either of the foregoing
officials shall have access to and right
to—
(i) Examine any of the Contractor’s or
any subcontractors’ records that pertain
to, and involve transactions relating to,
this contract; and
(ii) Interview any officer or employee
regarding such transactions.
(e)(1) Notwithstanding the
requirements of the clauses in
paragraphs (a), (b), and (c), of this
clause, the Contractor is not required to
flow down any FAR clause in a
subcontract for commercial items, other
than—
(i) Paragraph (d) of this clause. This
paragraph flows down to all
subcontracts, except the authority of the
Inspector General under paragraph
(d)(1)(ii) does not flow down; and
(ii) Those clauses listed in this
paragraph (e)(1). Unless otherwise
indicated below, the extent of the flow
down shall be as required by the
clause—
(A) 52.203–13, Contractor Code of
Business Ethics and Conduct (Dec 2008)
(Pub. L. 110–252, Title VI, Chapter 1 (41
U.S.C. 251 note)).
(B) 52.219–8, Utilization of Small
Business Concerns (May 2004) (15
U.S.C. 637(d)(2) and (3)), in all
subcontracts that offer further
subcontracting opportunities. If the
subcontract (except subcontracts to
small business concerns) exceeds
$550,000 ($1,000,000 for construction of
any public facility), the subcontractor
must include 52.219–8 in lower tier
subcontracts that offer subcontracting
opportunities.
(C) 52.222–26, Equal Opportunity
(Mar 2007) (E.O. 11246).
(D) 52.222–35, Equal Opportunity for
Special Disabled Veterans, Veterans of
the Vietnam Era, and Other Eligible
Veterans (Sept 2006) (38 U.S.C. 4212).
(E) 52.222–36, Affirmative Action for
Workers with Disabilities (June 1998)
(29 U.S.C. 793).
(F) 52.222–39, Notification of
Employee Rights Concerning Payment
of Union Dues or Fees (Dec 2004) (E.O.
13201).
(G) 52.222–41, Service Contract Act of
1965 (Nov 2007) (41 U.S.C. 351, et seq.).
(H) 52.222–50, Combating Trafficking
in Persons (Feb 2009) (22 U.S.C.
7104(g)).
(I) 2.222–51, Exemption from
Application of the Service Contract Act
to Contracts for Maintenance,
Calibration, or Repair of Certain
VerDate Nov<24>2008
13:57 Mar 30, 2009
Jkt 217001
Equipment-Requirements (Nov 2007)
(41 U.S.C. 351, et seq.).
(J) 52.222–53, Exemption from
Application of the Service Contract Act
to Contracts for Certain ServicesRequirements (Feb 2009) (41 U.S.C. 351,
et seq.).
(K) 52.222–54, Employment Eligibility
Verification (Jan 2009).
(L) 52.226–6, Promoting Excess Food
Donation to Nonprofit Organizations.
(Mar 2009) (Pub. L. 110–247). Flow
down required in accordance with
paragraph (e) of FAR clause 52.226–6.
(M) 52.247–64, Preference for
Privately Owned U.S.-Flag Commercial
Vessels (Feb 2006) (46 U.S.C. Appx.
1241(b) and 10 U.S.C. 2631). Flow down
required in accordance with paragraph
(d) of FAR clause 52.247–64.
■ 8. Amend section 52.214–26 by
adding Alternate I to read as follows:
52.214–26
Bidding.
Audit and Records—Sealed
*
*
*
*
*
Alternate I (MAR 2009). As prescribed
in 14.201–7(a)(2) substitute the
following paragraphs (c) and (e) for
paragraphs (c) and (e) of the basic
clause:
(c) The Comptroller General of the
United States, an appropriate Inspector
General appointed under section 3 or 8G
of the Inspector General Act of 1978 (5
U.S.C. App.), or an authorized
representative of either of the foregoing
officials, shall have access to and the
right to—
(1) Examine any of the Contractor’s or
any subcontractors’ records that pertain
to, and involve transactions relating to,
this contract or a subcontract hereunder;
and
(2) Interview any officer or employee
regarding such transactions.
(e)(1) Except as provided in paragraph
(e)(2), the Contractor shall insert a
clause containing the provisions of this
clause, including this paragraph (e), in
all subcontracts.
(2) The authority of the Inspector
General under paragraph (c)(2) of this
clause does not flow down to
subcontracts.
■ 9. Amend section 52.215–2 by adding
Alternate I to read as follows:
52.215–2
Audit and Records—Negotiation.
*
*
*
*
*
Alternate I (MAR 2009). As prescribed
in 15.209(b)(2), substitute the following
paragraphs (d)(1) and (g) for paragraphs
(d)(1) and (g) of the basic clause:
(d) Comptroller General or Inspector
General. (1) The Comptroller General of
the United States, an appropriate
Inspector General appointed under
section 3 or 8G of the Inspector General
PO 00000
Frm 00029
Fmt 4701
Sfmt 4700
14649
Act of 1978 (5 U.S.C. App.), or an
authorized representative of either of
the foregoing officials, shall have access
to and the right to—
(i) Examine any of the Contractor’s or
any subcontractor’s records that pertain
to and involve transactions relating to
this contract or a subcontract hereunder;
and
(ii) Interview any officer or employee
regarding such transactions.
(g)(1) Except as provided in paragraph
(g)(2) of this clause, the Contractor shall
insert a clause containing all the terms
of this clause, including this paragraph
(g), in all subcontracts under this
contract. The clause may be altered only
as necessary to identify properly the
contracting parties and the Contracting
Officer under the Government prime
contract.
(2) The authority of the Inspector
General under paragraph (d)(1)(ii) of
this clause does not flow down to
subcontracts.
[FR Doc. E9–7029 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 12 and 52
[FAC 2005–32; FAR Case 2008–026; Item
VI; Docket 2009–0013, Sequence 1]
RIN 9000–AL25
Federal Acquisition Regulation; FAR
Case 2008–026, GAO Access to
Contractor Employees
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
(Councils) have agreed on an interim
rule amending the Federal Acquisition
Regulation (FAR) to implement Section
871 of the Duncan Hunter National
Defense Authorization Act for Fiscal
Year 2009 (NDAA) (Pub. L. 110–417)
which allows the Government
Accountability Office to interview
current contractor employees during the
audit of the contractor’s records. FAR
52.215–2(d)(1), Audit and RecordsNegotiation, is revised to allow for the
E:\FR\FM\31MRR2.SGM
31MRR2
14650
Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations
required access by inserting before the
period: ‘‘and to interview any current
employee regarding such transactions’’.
FAR 52.214–26(c), Audit and RecordsSealed Bidding is revised to allow for
the required access by inserting before
the period: ‘‘and also the right to
interview any current employee
regarding such transactions’’.
DATES: Effective Date: March 31, 2009.
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
2008–026, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2008–026’’ under the heading
‘‘Comment or Submission’’. Select the
link ‘‘Send a Comment or Submission’’
that corresponds with FAR Case 2008–
026. Follow the instructions provided to
complete the ‘‘Public Comment and
Submission Form’’. Please include your
name, company name (if any), and
‘‘FAR Case 2008–026’’ 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
2008–026, 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.
Suzanne Neurauter, Procurement
Analyst, at (202) 219–0310 for
clarification of content. Please cite FAC
2005–32, FAR case 2008–026. For
information pertaining to status or
publication schedules, contact the FAR
Secretariat at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
sroberts on PROD1PC70 with RULES
A. Background
Section 871 of the Duncan Hunter
National Defense Authorization Act for
Fiscal Year 2009 (NDAA) (Pub. L. 110–
417) added language allowing the
Comptroller General to interview
current employees regarding
transactions being examined during an
audit of contracting records. The Act
revises 41 U.S.C. 254d(c)(1) and 10
U.S.C. 2313(c)(1) by inserting before the
period: ‘‘and to interview any current
VerDate Nov<24>2008
13:57 Mar 30, 2009
Jkt 217001
employee regarding such transactions’’.
To implement the Act, FAR clauses
52.215–2, Audit and RecordsNegotiation and 52.214–26, Audit and
Records-Sealed Bidding, are amended to
add the required statutory language. The
statute did not specify that Section 871
apply to commercial item contracts and
therefore was not applied to FAR clause
52.212–5, Contract Terms and
Conditions Required to Implement
Statutes or Executive Order-Commercial
Items. Section 34 of the Office of
Federal Procurement Policy Act (OFPP),
41 U.S.C. 430, exempts commercial item
acquisitions from new provisions of
law, such as Section 871, unless (1) the
law provides criminal or civilian
penalties, (2) the law expressly refers to
41 U.S.C. 430 and states that it applies
to commercial item contracts, or (3) the
FAR Council makes a written
determination that it would not be in
the best interest of the Federal
Government to exempt commercial item
contracts. Thus, this new provision was
added to the list of inapplicable laws at
FAR 12.503(a).
This is a significant regulatory action
and, therefore, was subject to review
under Section 6 of Executive Order
12886, Regulatory Planning and Review,
dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. 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, at 5 U.S.C. 601, et seq. Only a small
number of small businesses are audited
by GAO. Currently many GAO audits of
small business contractors include
contractor employee interviews. This
Act is designed to cover those incidents
in which contractor employees are not
able to be interviewed. Therefore, it is
not anticipated that interviewing any
current employee regarding such
contract transactions will have a
significant impact.
Therefore, an Initial Regulatory
Flexibility Analysis has not been
performed. The Councils will consider
comments from small entities
concerning the affected FAR Parts 12
and 52 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 2008–026 in all correspondence.
C. 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
PO 00000
Frm 00030
Fmt 4701
Sfmt 4700
approval of the Office of Management
and Budget under 44 U.S.C. Chapter 35,
et seq.
D. 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 to implement
statutory requirements of Section 871 of
the Duncan Hunter National Defense
Authorization Act for Fiscal Year 2009
(NDAA) (Pub. L. 110–417) which went
into effect October 14, 2008. The Act
revises 41 U.S.C. 254d (c)(1) and 10
U.S.C. 2313 (c)(1) by inserting before the
period: ‘‘and to interview any current
employee regarding such transactions’’.
To implement the Act, the clauses at
FAR 52.215–2(d)(1) and 52.214–26(c)
are amended to add the required
statutory language. The Councils believe
that the interim rule in the FAR will
provide the contracting officer the
relevant regulatory guidance needed
when addressing requirements outlined
in this rule. 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 12 and
52
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 12 and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 12 and 52 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 12—ACQUISITION OF
COMMERCIAL ITEMS
2. Amend section 12.503 by adding
paragraph (a)(8) to read as follows:
■
12.503 Applicability of certain laws to
Executive agency contracts for the
acquisition of commercial items.
(a) * * *
(8) 41 U.S.C. 254d(c)(1) and 10 U.S.C.
2313(c)(1), GAO Access to Contractor
Employees, Section 871 of Pub. L. 110–
417 (see 52.214–26 and 52.215–2).
*
*
*
*
*
E:\FR\FM\31MRR2.SGM
31MRR2
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
]]>Agencies
[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14649-14651]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-7030]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 12 and 52
[FAC 2005-32; FAR Case 2008-026; Item VI; Docket 2009-0013, Sequence 1]
RIN 9000-AL25
Federal Acquisition Regulation; FAR Case 2008-026, GAO Access to
Contractor Employees
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 (Councils) have agreed on an interim
rule amending the Federal Acquisition Regulation (FAR) to implement
Section 871 of the Duncan Hunter National Defense Authorization Act for
Fiscal Year 2009 (NDAA) (Pub. L. 110-417) which allows the Government
Accountability Office to interview current contractor employees during
the audit of the contractor's records. FAR 52.215-2(d)(1), Audit and
Records-Negotiation, is revised to allow for the
[[Page 14650]]
required access by inserting before the period: ``and to interview any
current employee regarding such transactions''. FAR 52.214-26(c), Audit
and Records-Sealed Bidding is revised to allow for the required access
by inserting before the period: ``and also the right to interview any
current employee regarding such transactions''.
DATES: Effective Date: March 31, 2009.
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 2008-
026, by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2008-026'' under the heading ``Comment or Submission''.
Select the link ``Send a Comment or Submission'' that corresponds with
FAR Case 2008-026. Follow the instructions provided to complete the
``Public Comment and Submission Form''. Please include your name,
company name (if any), and ``FAR Case 2008-026'' 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 2008-026, 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. Suzanne Neurauter, Procurement
Analyst, at (202) 219-0310 for clarification of content. Please cite
FAC 2005-32, FAR case 2008-026. For information pertaining to status or
publication schedules, contact the FAR Secretariat at (202) 501-4755.
SUPPLEMENTARY INFORMATION:
A. Background
Section 871 of the Duncan Hunter National Defense Authorization Act
for Fiscal Year 2009 (NDAA) (Pub. L. 110-417) added language allowing
the Comptroller General to interview current employees regarding
transactions being examined during an audit of contracting records. The
Act revises 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1) by inserting
before the period: ``and to interview any current employee regarding
such transactions''. To implement the Act, FAR clauses 52.215-2, Audit
and Records-Negotiation and 52.214-26, Audit and Records-Sealed
Bidding, are amended to add the required statutory language. The
statute did not specify that Section 871 apply to commercial item
contracts and therefore was not applied to FAR clause 52.212-5,
Contract Terms and Conditions Required to Implement Statutes or
Executive Order-Commercial Items. Section 34 of the Office of Federal
Procurement Policy Act (OFPP), 41 U.S.C. 430, exempts commercial item
acquisitions from new provisions of law, such as Section 871, unless
(1) the law provides criminal or civilian penalties, (2) the law
expressly refers to 41 U.S.C. 430 and states that it applies to
commercial item contracts, or (3) the FAR Council makes a written
determination that it would not be in the best interest of the Federal
Government to exempt commercial item contracts. Thus, this new
provision was added to the list of inapplicable laws at FAR 12.503(a).
This is a significant regulatory action and, therefore, was subject
to review under Section 6 of Executive Order 12886, Regulatory Planning
and Review, dated September 30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
B. 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, at 5 U.S.C. 601, et seq.
Only a small number of small businesses are audited by GAO. Currently
many GAO audits of small business contractors include contractor
employee interviews. This Act is designed to cover those incidents in
which contractor employees are not able to be interviewed. Therefore,
it is not anticipated that interviewing any current employee regarding
such contract transactions will have a significant impact.
Therefore, an Initial Regulatory Flexibility Analysis has not been
performed. The Councils will consider comments from small entities
concerning the affected FAR Parts 12 and 52 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 2008-026 in all
correspondence.
C. 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.
D. 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 to implement statutory requirements of Section 871 of the
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009
(NDAA) (Pub. L. 110-417) which went into effect October 14, 2008. The
Act revises 41 U.S.C. 254d (c)(1) and 10 U.S.C. 2313 (c)(1) by
inserting before the period: ``and to interview any current employee
regarding such transactions''. To implement the Act, the clauses at FAR
52.215-2(d)(1) and 52.214-26(c) are amended to add the required
statutory language. The Councils believe that the interim rule in the
FAR will provide the contracting officer the relevant regulatory
guidance needed when addressing requirements outlined in this rule.
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 12 and 52
Government procurement.
Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 12 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 12 and 52 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 12--ACQUISITION OF COMMERCIAL ITEMS
0
2. Amend section 12.503 by adding paragraph (a)(8) to read as follows:
12.503 Applicability of certain laws to Executive agency contracts for
the acquisition of commercial items.
(a) * * *
(8) 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1), GAO Access to
Contractor Employees, Section 871 of Pub. L. 110-417 (see 52.214-26 and
52.215-2).
* * * * *
[[Page 14651]]
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 52.214-26 by revising the date of the clause and
paragraph (c) to read as follows:
52.214-26 Audit and Records--Sealed Bidding.
* * * * *
Audit and Records-Sealed Bidding (MAR 2009)
* * * * *
(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)
0
4. Amend section 52.215-2 by revising the date of the clause and
paragraph (d)(1) to read as follows:
52.215-2 Audit and Records--Negotiation.
* * * * *
Audit and Records--Negotiation (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.
* * * * *
(End of clause)
[FR Doc. E9-7030 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P
