Federal Acquisition Regulation; FAR Case 2008-028, Role of Interagency Committee on Debarment and Suspension, 31564-31565 [E9-15431]

Download as PDF 31564 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations meets the criteria specified in 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c). 9.108–2 Relationship with the Internal Revenue Code and Treasury regulations. (a) Inverted domestic corporations are covered not only in the Department of Homeland Security statute at 6 U.S.C. 395, but also are similarly covered in the Internal Revenue Code at 26 U.S.C. 7874. A foreign corporation is treated as an inverted domestic corporation for U.S. Federal income tax purposes, rather than as a foreign corporation, if— (1) At least 80 percent (80%) of the stock is now held by former shareholders of the domestic corporation or partners of the domestic partnership; and (2) The foreign entity plus companies connected to it by 50 percent (50%) or more ownership do not have substantial business activities in the foreign country. (b) A foreign corporation that is treated as an inverted domestic corporation for U.S. Federal income tax purposes, is also treated as one for purposes of this section. (c) A foreign entity that escapes the tax consequence of 26 U.S.C. 7874 only because the inversion transactions were completed on or before the March 4, 2003, date in section 7874, is nevertheless treated as an inverted domestic corporation for purposes of 6 U.S.C. 395 (which does not have a limiting date) and therefore also for purposes of this section. 9.108–3 Prohibition. (a) Section 743 of Division D of the FY 2009 Omnibus Appropriations Act (Public Law 111–8) prohibits the use of 2009 appropriated funds for contracting with any foreign incorporated entity that is treated as an inverted domestic corporation, or with a subsidiary of such a corporation. The same restriction was also contained in the Fiscal Year 2006 through 2008 appropriations acts. In order to be eligible for contract award when using Fiscal Year 2006 through Fiscal Year 2009 funds, an offeror must represent that it is not an inverted domestic corporation or subsidiary. Any offeror that cannot so represent is ineligible for award of a contract using such appropriated funds. (b) Contracting officers should rigorously examine circumstances known to them that would lead a reasonable business person to question the contractor self—certification and, after consultation with legal counsel, take appropriate action where that questionable self-certification cannot be verified. VerDate Nov<24>2008 18:17 Jun 30, 2009 Jkt 217001 9.108–4 Waiver. Any agency head may waive the requirement of subsection 9.108–3 for a specific contract if the agency head determines in writing that the waiver is required in the interest of national security, documents the determination, and reports it to the Congress. 9.108–5 PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 5. Add section 52.209–2 to read as follows: ■ 52.209–2 Prohibition on Contracting with Inverted Domestic Corporations— Representation. As prescribed in 9.108–5, insert the following provision: PROHIBITION ON CONTRACTING WITH INVERTED DOMESTIC CORPORATIONS— REPRESENTATION (JUL 2009) (a) Definition. Inverted domestic corporation means a foreign incorporated entity which is treated as an inverted domestic corporation under 6 U.S.C. 395(b), i.e., a corporation that used to be incorporated in the United States, or used to be a partnership in the United States, but now is incorporated in a foreign country, or is a subsidiary whose parent corporation is incorporated in a foreign country, that meets the criteria specified in 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c). (b) Relation to Internal Revenue Code. A foreign entity that is treated as an inverted domestic corporation for purposes of the Internal Revenue Code at 26 U.S.C. 7874 (or would be except that the inversion transactions were completed on or before March 4, 2003), is also an inverted domestic corporation for purposes of 6 U.S.C. 395 and for this solicitation provision (see FAR 9.108). (c) Representation. By submission of its offer, the offeror represents that it is not an inverted domestic corporation and is not a subsidiary of one. (End of provision) 6. Amend section 52.212–3 by— a. Revising the date of the provision; ■ b. In paragraph (a), adding, in alphabetical order, the definition ‘‘Inverted domestic corporation’’; ■ ■ Frm 00010 Fmt 4701 Sfmt 4700 52.212–3 Offeror Representations and Certifications—Commercial Items. * Solicitation provision. When using funds appropriated in Fiscal Year 2006 through Fiscal Year 2009, the contracting officer shall include the provision at 52.209–2, Prohibition on Contracting with Inverted Domestic Corporations— Representation, in each solicitation issued after July 1, 2009 for the acquisition of products or services (see FAR 52.212–3 for solicitations issued under Part 12), unless waived in accordance with FAR 9.108–4. PO 00000 c. Removing from paragraph (b)(2) ‘‘(c) through (m)’’ and adding ‘‘(c) through (n)’’ in its place; ■ d. Adding paragraph (n). The revised and added text reads as follows: ■ * * * * OFFEROR REPRESENTATIONS AND CERTIFICATIONS—COMMERCIAL ITEMS (JUL 2009) * * * * * * * * (a) * * * * * Inverted domestic corporation means a foreign incorporated entity which is treated as an inverted domestic corporation under 6 U.S.C. 395(b), i.e., a corporation that used to be incorporated in the United States, or used to be a partnership in the United States, but now is incorporated in a foreign country, or is a subsidiary whose parent corporation is incorporated in a foreign country, that meets the criteria specified in 6 U.S.C. 395(b), applied in accordance with the rules and definitions of 6 U.S.C. 395(c). * * * * * (n) Prohibition on Contracting with Inverted Domestic Corporations. (1) Relation to Internal Revenue Code. A foreign entity that is treated as an inverted domestic corporation for purposes of the Internal Revenue Code at 26 U.S.C. 7874 (or would be except that the inversion transactions were completed on or before March 4, 2003), is also an inverted domestic corporation for purposes of 6 U.S.C. 395 and for this solicitation provision (see FAR 9.108). (2) Representation. By submission of its offer, the offeror represents that it is not an inverted domestic corporation and is not a subsidiary of one. * * * * * [FR Doc. E9–15434 Filed 6–30–09; 8:45 am] BILLING CODE 6820–EP–S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Part 9 [FAC 2005–34; FAR Case 2008–028; Item III; Docket 2009–0021; Sequence 1] RIN 9000–AL33 Federal Acquisition Regulation; FAR Case 2008–028, Role of Interagency Committee on Debarment and Suspension AGENCIES: Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). E:\FR\FM\01JYR3.SGM 01JYR3 31565 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations ACTION: Final rule. SUMMARY: The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to implement Section 873(a)(1) and (2) of the National Defense Authorization Act for Fiscal Year 2009. Section 873(a)(1) and (2) clarifies the role of the Interagency Committee on Debarment and Suspension when more than one agency has an interest in the debarment or suspension of a contractor. DATES: Effective Date: July 31, 2009. FOR FURTHER INFORMATION CONTACT: For clarification of content, contact Mr. Edward Loeb, Director, at (202) 501– 0650. The TTY Federal Relay Number for further information is 1–800–877– 8973. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at (202) 501– 4755. Please cite FAC 2005–34, FAR case 2008–028. B. Regulatory Flexibility Act The Regulatory Flexibility Act does not apply to this rule. This final rule does not constitute a significant FAR revision within the meaning of FAR 1.501 and Public Law 98–577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR Part 9 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 2005–34, FAR case 2008– 028), 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. List of Subjects in 48 CFR Part 9 Government procurement. SUPPLEMENTARY INFORMATION: Dated: June 25, 2009. Al Matera, Director, Office of Acquisition Policy. A. Background ■ Therefore, DoD, GSA, and NASA amend 48 CFR part 9 as set forth below: This case amends FAR 9.402 to implement Section 873(a)(1) and (2) of the Duncan Hunter National Defense Authorization Act of 2009 (Public Law 110–417), which was enacted on October 14, 2008. Section 873 of the Act defines the role of the Interagency Committee on Debarment and Suspension. Among other responsibilities, the Interagency Committee on Debarment and Suspension is authorized to resolve issues regarding the agency that will have lead responsibility in initiating a suspension or debarment proceeding. The Committee will also coordinate actions among interested agencies with respect to such action. This is not a significant regulatory action and, therefore, was not subject to review under Section 6(b) of Executive Order 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. PART 9—CONTRACTOR QUALIFICATIONS 1. The authority citation for 48 CFR part 9 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). 2. Amend section 9.402 by revising paragraph (c), redesignating paragraph (d) as paragraph (e), and adding a new paragraph (d) to read as follows: ■ 9.402 Policy. * * * * * (c) Agencies are encouraged to establish methods and procedures for coordinating their debarment or suspension actions. (d) When more than one agency has an interest in the debarment or suspension of a contractor, the Interagency Committee on Debarment and Suspension, established under Executive Order 12549, and authorized by Section 873 of the National Defense Authorization Act for Fiscal Year 2009 (Pub. L. 110–417), shall resolve the lead agency issue and coordinate such resolution among all interested agencies prior to the initiation of any suspension, debarment, or related administrative action by any agency. * * * * * [FR Doc. E9–15431 Filed 6–30–09; 8:45 am] BILLING CODE 6820–EP–S DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Chapter 1 [Docket FAR 2009–0002, Sequence 5] 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) 2005–34 which amend the FAR. Interested parties may obtain further information regarding these rules by referring to FAC 2005–34 which precedes this document. These documents are also available via the Internet at http://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 2005–34 Item Subject I ............ II ........... III .......... Contractor Performance Information ............................................................................................... Prohibition on Contracting with Inverted Domestic Corporations (Interim) ..................................... Role of Interagency Committee on Debarment and Suspension .................................................... VerDate Nov<24>2008 18:12 Jun 30, 2009 Jkt 217001 PO 00000 Frm 00011 FAR case Fmt 4701 Sfmt 4700 E:\FR\FM\01JYR3.SGM 2006-022 2008-009 2008-028 01JYR3 Analyst Parnell. Murphy. Loeb.

Agencies

[Federal Register Volume 74, Number 125 (Wednesday, July 1, 2009)]
[Rules and Regulations]
[Pages 31564-31565]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-15431]


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

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 9

[FAC 2005-34; FAR Case 2008-028; Item III; Docket 2009-0021; Sequence 
1]
RIN 9000-AL33


Federal Acquisition Regulation; FAR Case 2008-028, Role of 
Interagency Committee on Debarment and Suspension

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

[[Page 31565]]


ACTION: Final rule.

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

SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on a final rule 
amending the Federal Acquisition Regulation (FAR) to implement Section 
873(a)(1) and (2) of the National Defense Authorization Act for Fiscal 
Year 2009. Section 873(a)(1) and (2) clarifies the role of the 
Interagency Committee on Debarment and Suspension when more than one 
agency has an interest in the debarment or suspension of a contractor.

DATES: Effective Date: July 31, 2009.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Edward Loeb, Director, at (202) 501-0650. The TTY Federal Relay 
Number for further information is 1-800-877-8973. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat at (202) 501-4755. Please cite FAC 2005-34, FAR case 2008-
028.

SUPPLEMENTARY INFORMATION:

A. Background

    This case amends FAR 9.402 to implement Section 873(a)(1) and (2) 
of the Duncan Hunter National Defense Authorization Act of 2009 (Public 
Law 110-417), which was enacted on October 14, 2008. Section 873 of the 
Act defines the role of the Interagency Committee on Debarment and 
Suspension. Among other responsibilities, the Interagency Committee on 
Debarment and Suspension is authorized to resolve issues regarding the 
agency that will have lead responsibility in initiating a suspension or 
debarment proceeding. The Committee will also coordinate actions among 
interested agencies with respect to such action.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Regulatory Flexibility Act does not apply to this rule. This 
final rule does not constitute a significant FAR revision within the 
meaning of FAR 1.501 and Public Law 98-577, and publication for public 
comments is not required. However, the Councils will consider comments 
from small entities concerning the affected FAR Part 9 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 2005-34, FAR case 
2008-028), 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.

List of Subjects in 48 CFR Part 9

    Government procurement.

    Dated: June 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 9 as set forth below:

PART 9--CONTRACTOR QUALIFICATIONS

0
1. The authority citation for 48 CFR part 9 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).


0
2. Amend section 9.402 by revising paragraph (c), redesignating 
paragraph (d) as paragraph (e), and adding a new paragraph (d) to read 
as follows:


9.402  Policy.

* * * * *
    (c) Agencies are encouraged to establish methods and procedures for 
coordinating their debarment or suspension actions.
    (d) When more than one agency has an interest in the debarment or 
suspension of a contractor, the Interagency Committee on Debarment and 
Suspension, established under Executive Order 12549, and authorized by 
Section 873 of the National Defense Authorization Act for Fiscal Year 
2009 (Pub. L. 110-417), shall resolve the lead agency issue and 
coordinate such resolution among all interested agencies prior to the 
initiation of any suspension, debarment, or related administrative 
action by any agency.
* * * * *
[FR Doc. E9-15431 Filed 6-30-09; 8:45 am]
BILLING CODE 6820-EP-S