Federal Acquisition Regulation; FAR Case 2009-012, American Recovery and Reinvestment Act (the Recovery Act) of 2009- Whistleblower Protections, 34258-34260 [2010-14189]
Download as PDF
<![CDATA[
34258
Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Rules and Regulations
Item X—Compensation for Personal
Services (FAR Case 2009–026) (Interim)
This interim rule amends the FAR to
align the existing FAR 31.205(q)(2)(i)
and (ii) with the changes made in Cost
Accounting Standards (CAS) Board
Standards 412, ‘‘Cost Accounting
Standard for composition and
measurement of pension cost,’’ and 415,
‘‘Accounting for the cost of deferred
compensation.’’ Formerly, the applicable
CAS standard for measuring, assigning,
and allocating the costs of Employee
Stock Ownership Plans (ESOPs)
depended on whether the ESOP met the
definition of a pension plan at FAR
31.001. Costs for ESOPs meeting the
definition of a pension plan at FAR
31.001 were covered by CAS 412, while
the costs for ESOPs not meeting the
definition of a pension plan at FAR
31.001 were covered by CAS 415. Now,
regardless of whether an ESOP meets
the definitions of a pension plan at FAR
31.001, all costs of ESOPs are covered
by CAS 415.
sroberts on DSKD5P82C1PROD with RULES
Item XI—Payrolls and Basic Records
(FAR Case 2009–018) (Interim)
This interim rule implements changes
that the Department of Labor (DOL)
instituted regarding the submission of
payroll data in their final rule,
Protecting the Privacy of Workers: Labor
Standards Provisions Applicable to
Contracts Covering Federally Financed
and Assisted Construction, published in
the Federal Register at 73 FR 77504 on
December 19, 2008. The rule revises
FAR 52.222–8, Payrolls and Basic
Records, to delete the requirement for
submission of full social security
numbers and home addresses of
individual workers, prime contractor,
on weekly payroll transmittals as
required on covered construction
contracts. The rule requires contractors
and subcontractors to maintain the full
social security number and current
address of each covered worker, and
shall provide them upon request to the
contracting officer, the contractor, or the
Wage and Hour Division of the DOL for
purposes of an investigation or audit of
compliance with prevailing wage
requirements. The rule recognizes
DOL’s finding that complete social
security numbers and home addresses
for individual workers is personal
information to the worker and that any
unnecessary disclosure and submittal of
such information creates an exposure to
identity theft and the invasion of
privacy for workers.
VerDate Mar<15>2010
16:33 Jun 15, 2010
Jkt 220001
Item XII—Technical Amendments
Editorial changes have been made at
FAR 31.205–6, 31.205–16, 49.505, and
52.222–34.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
Federal Acquisition Circular
Federal Acquisition Circular (FAC)
2005-42 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 2005-42 is effective June 16,
2010, except for Items II, III, IV, VI, and
VIII which are effective July 16, 2010.
Dated: June 8, 2010.
Shay D. Assad,
Director, Defense Procurement and
Acquisition Policy.
Dated: June 2, 2010.
Edward Loeb,
Acting Senior Procurement Executive, Office
of Acquisition Policy, U.S. General Services
Administration.
Dated: June 3, 2010.
William P. McNally,
Assistant Administrator for Procurement,
National Aeronautics and Space
Administration.
[FR Doc. 2010–14184 Filed 6–15–10; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005–42; FAR Case 2009–012; Item
I; Docket 2009–0009, Sequence 1]
RIN 9000–AL19
Federal Acquisition Regulation; FAR
Case 2009–012, American Recovery
and Reinvestment Act (the Recovery
Act) of 2009— Whistleblower
Protections
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
PO 00000
Frm 00004
Fmt 4701
Sfmt 4700
Acquisition Regulations Council (the
Councils) have adopted as final, with
changes, an interim rule amending the
Federal Acquisition Regulation (FAR) to
implement the American Recovery and
Reinvestment Act of 2009 (the Recovery
Act) with respect to section 1553 of
Division A, Protecting State and Local
Government and Contractor
Whistleblowers. This rule prohibits
non-Federal employers from
discharging, demoting, or
discriminating against an employee as a
reprisal for disclosing information.
DATES: Effective Date: June 16, 2010.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Jeritta Parnell, Procurement Analyst, at
(202) 501–4082. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–42, FAR Case 2009–012.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an
interim rule in the Federal Register at
74 FR 14633 on March 31, 2009, to
implement the Recovery Act with
respect to section 1553 of Division A,
Protecting State and Local Government
and Contractor Whistleblowers. A
Technical Amendment was published
in the Federal Register at 74 FR 22810
on May 14, 2009.
The comment period closed on June
1, 2009. Six comments from two
respondents were received. The
Councils considered the comments
received and concluded that the interim
rule should be converted to a final rule
with minor changes.
The comments received are discussed
below.
a.The first respondent submitted the
following 4 comments.
Comment 1. The respondent believes
that the prescription at FAR 3.907–7 is
too broad and should be revised to limit
application more specifically to work
funded with the Recovery Act funds.
Revised language is proposed for FAR
3.907–7 as follows: ‘‘Use the clause at
52.203–15, Whistleblower Protections
under the ARRA of 2009 in—All
solicitations and contracts entirely
funded with Recovery Act funds; and
All solicitations and contracts funded in
part with Recovery Act funds for the
work to be funded with those Recovery
Act funds.’’
Response. Section 1553 prohibits
reprisals against any employee of a
contractor receiving ‘‘covered funds’’ for
disclosing certain information related to
‘‘covered funds.’’ The limitation of the
applicability of the rule is created by the
E:\FR\FM\16JNR3.SGM
16JNR3
sroberts on DSKD5P82C1PROD with RULES
Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Rules and Regulations
definition of covered information,
which means only information that the
employee reasonably believes is
evidence of gross mismanagement of the
contract or subcontract related to
covered funds, gross waste of covered
funds, a substantial and specific danger
to public health or safety related to the
implementation or use of covered funds,
an abuse of authority related to the
implementation or use of covered funds,
or a violation of law, rule, or regulation
related to an agency contract (including
the competition for or negotiation of a
contract) awarded or issued relating to
covered funds. It does not apply to
information relating to problems not
associated with the use of covered
funds.
Section 1553 defines ‘‘Covered funds’’
to mean any contract, grant, or other
payment received by a contractor if—
(1) The Federal Government provides
any portion of the money or property
that is provided, requested, or
demanded; and
(2) At least some of the funds are
appropriated or otherwise made
available by the Recovery Act.
As defined in section 1553, covered
funds is broader than just funds
appropriated or otherwise made
available by the Recovery Act.
Since the prohibition of reprisals
applies to any employee of the
contractor receiving the covered funds,
the clause prescription as stated in the
interim rule at FAR 3.907–7 is correct.
However, the Councils have revised the
definition of ‘‘covered funds’’ at FAR
3.907–1 to be more consistent with the
statutory definition, and have revised
the flowdown in the clause at FAR
52.203–15(b) to apply only to
subcontracts that are funded in whole or
in part with the Recovery Act funds.
Comment 2. The respondent states
that because section 1553 of the
Recovery Act is implemented by FAR
52.203–15 and included in contracts for
commercial items by FAR 52.212–
5(b)(3), it is not necessary to amend
paragraph (r) of FAR 52.212–4.
Response. The Councils agree. The
newly added language at FAR 52.212–
4(r) is deleted.
Comment 3. The respondent states
that the clause at FAR 52.203–15 should
be indicated as a ‘‘check-off’’ clause as
has been noted for FAR 52.212–5(b)(4),
and FAR 52.204–11 (FAR Case 2009–
009).
Response. The Councils agree.
However, it is not necessary to make
any further changes to the rule. This is
a checklist being interpreted correctly
by the U.S. National Archives and
Records Administration and the U.S.
Government Printing Office.
VerDate Mar<15>2010
16:33 Jun 15, 2010
Jkt 220001
Comment 4. The respondent states
that it is unnecessary to include the
reference to FAR 52.203–15 in
paragraph (e)(1) of FAR 52.212–5
because this was incorporated under
FAR Case 2009–011.
Response. The Councils partially
agree. The Technical Amendment to the
rule, published in the Federal Register
at 74 FR 22810 on May 14, 2009, moved
this paragraph to the Alternate II.
b. The second respondent submitted 2
comments to the interim rule.
Comment 1. The respondent believes
that the rule should be amended to
require the contracting officer to
immediately forward the complaint
ONLY to the Office of Inspector General
(OIG).
Response. The Councils partially
agree. The language in FAR 3.907–3(c)
is revised to add ‘‘and to other
designated officials in accordance with
agency procedures (e.g., agency legal
counsel’’) so that agencies are informed
as well as the OIG.
Comment 2. The respondent believes
that the Recovery Act grants authority
concerning the extension of time for
investigating complaints and the
determination on whether or not to
investigate or to discontinue an
investigation to the IG, not to the agency
head as stated in FAR 3.907–6(c)(1).
Response. The Councils agree that
subsection (b) of section 1553 gives the
authority to the IG. However, FAR
3.907–6(c)(1) reflects the wording of
subsection (c)(3) of section 1553. The
FAR did not create any new authority
here.
In addition, the Councils added a
reference, at FAR 52.203–15, to the web
address where contractors may obtain a
whistleblower poster developed by the
Recovery Accountability and
Transparency (RAT) Board.
This is a significant regulatory action
and, therefore, was subject to Office of
Management and Budget review under
section 6 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 Department of Defense, the
General Services Administration, and
the National Aeronautics and Space
Administration certify that this final
rule will not have a significant
economic impact on a substantial
number of small entities within the
meaning of the Regulatory Flexibility
Act, 5 U.S.C. 601, et seq., because the
rule applies similar, but not identical,
whistleblower protections to contractor
and subcontractor employees as
currently covered in FAR subpart 3.9.
PO 00000
Frm 00005
Fmt 4701
Sfmt 4700
34259
Likewise, this rule only applies to
contracts awarded with Recovery Act
funds.
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 Parts 3 and
52
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
Accordingly, the interim rule
published in the Federal Register at 74
FR 14633 on March 31, 2009, is adopted
as a final rule with the following
changes:
■ 1. The authority citation for 48 CFR
parts 3 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 3—IMPROPER BUSINESS
PRACTICES AND PERSONAL
CONFLICTS OF INTEREST
2. Amend section 3.907–1 by revising
the definition of ‘‘Covered funds’’ to read
as follows:
■
3.907–1
Definitions.
*
*
*
*
*
Covered funds means any contract
payment, grant payment, or other
payment received by a contractor if—
(1) The Federal Government provides
any portion of the money or property
that is provided, requested, or
demanded; and
(2) At least some of the funds are
appropriated or otherwise made
available by the Recovery Act.
*
*
*
*
*
■ 3. Amend section 3.907–3 by revising
paragraph (c) to read as follows:
3.907–3
Procedures for filing complaints.
*
*
*
*
*
(c) A contracting officer who receives
a complaint of reprisal of the type
described in 3.907–2 shall forward it to
the Office of Inspector General and to
other designated officials in accordance
with agency procedures (e.g., agency
legal counsel).
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
4. Amend section 52.203–15 by
revising the date of the clause, and
paragraphs (a) and (b) to read as follows:
■
E:\FR\FM\16JNR3.SGM
16JNR3
34260
Federal Register / Vol. 75, No. 115 / Wednesday, June 16, 2010 / Rules and Regulations
52.203–15 Whistleblower Protections
Under the American Recovery and
Reinvestment Act of 2009.
*
*
*
*
*
WHISTLEBLOWER PROTECTIONS
UNDER THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (JUN 2010)
(a) The Contractor shall post notice of
employees rights and remedies for
whistleblower protections provided
under section 1553 of the American
Recovery and Reinvestment Act of 2009
(Pub. L. 111–5) (Recovery Act).
(b) The Contractor shall include the
substance of this clause, including this
paragraph (b), in all subcontracts that
are funded in whole or in part with
Recovery Act funds.
*
*
*
*
*
52.212–4
[Amended]
5. Amend section 52.212–4 by
removing the clause date ‘‘(Mar 2009)’’
and adding ‘‘(JUN 2010)’’ and removing
from paragraph (r) ‘‘Section 1553 of the
American Recovery and Reinvestment
Act of 2009 relating to whistleblower
protections for contracts funded under
that Act;’’.
■ 6. Amend section 52.212–5 by—
■ a. Revising the date of the clause;
■ b. Removing from paragraph (b)(3)
‘‘(Mar 2009)’’ and adding ‘‘(JUN 2010)’’ in
its place; and
■ c. Revising paragraph (e)(1)(ii)(B) of
Alternate II.
The revised text reads as follows:
■
52.212–5 Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items.
*
*
*
*
*
CONTRACT TERMS AND CONDITIONS
REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS—COMMERCIAL
ITEMS (JUN 2010)
*
*
*
*
Alternate II * * *
*
*
*
*
*
(e)(1) * * *
(ii) * * *
(B) 52.203—15, Whistleblower
Protections Under the American
Recovery and Reinvestment Act of 2009
(JUN 2010) (Section 1553 of Pub. L.
111–5).
*
*
*
*
*
■ 7. Amend section 52.213–4 by
revising the date of the clause and
paragraph (a)(2)(vi) to read as follows:
sroberts on DSKD5P82C1PROD with RULES
*
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
*
*
*
*
*
TERMS AND CONDITIONS—SIMPLIFIED
ACQUISITIONS (OTHER THAN
COMMERCIAL ITEMS) (JUN 2010)
(a) * * *
(2) * * *
VerDate Mar<15>2010
16:33 Jun 15, 2010
Jkt 220001
(vi) 52.244–6, Subcontracts for
Commercial Items (JUN 2010).
*
*
*
*
*
■ 8. Amend section 52.244–6 by
revising the date of the clause and
paragraph (c)(1)(ii) to read as follows:
52.244–6
Items.
*
*
Subcontracts for Commercial
*
*
*
SUBCONTRACTS FOR COMMERCIAL
ITEMS (JUN 2010)
*
*
*
*
*
(c)(1) * * *
(ii) 52.203–15, Whistleblower
Protections Under the American
Recovery and Reinvestment Act of 2009
(JUN 2010) (Section 1553 of Pub. L.
111–5), if the subcontract is funded
under the Recovery Act.
*
*
*
*
*
[FR Doc. 2010–14189 Filed 6–15–10; 8:45 am]
BILLING CODE 6820–EP–S
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 1, 4, 19, 52, and 53
[FAC 2005–42; FAR Case 2005–040; Item
II; Docket 2008–0001, Sequence 26]
RIN 9000–AK95
Federal Acquisition Regulation; FAR
Case 2005–040, Electronic
Subcontracting Reporting System
(eSRS)
AGENCIES: Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
SUMMARY: The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) are issuing a final rule
amending the Federal Acquisition
Regulation (FAR) to require that
contractors’ small business subcontract
reports be submitted using the
Electronic Subcontracting Reporting
System (eSRS), rather than Standard
Form 294 - Subcontract Report for
Individual Contracts and Standard Form
295 - Summary Subcontract Report.
DATES: Effective Date: July 16, 2010.
FOR FURTHER INFORMATION CONTACT: For
clarification of content, contact Ms.
Rhonda Cundiff, Procurement Analyst,
at (202) 501–0044. For information
pertaining to status or publication
PO 00000
Frm 00006
Fmt 4701
Sfmt 4700
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–42, FAR Case 2005–040.
SUPPLEMENTARY INFORMATION:
A. Background
The Councils published an interim
rule in the Federal Register at 73 FR
21779 on April 22, 2008, to implement
in the FAR the use of the Electronic
Subcontracting Reporting System (eSRS)
to fulfill small business subcontracting
reporting requirements. The eSRS is a
web-based system under the umbrella of
the Integrated Acquisition Environment.
It replaces Standard Forms 294 and 295
as the mechanism for submitting reports
required by the small business
subcontracting program. The eSRS is
intended to streamline the small
business subcontracting program
reporting process and provide the data
to agencies in a manner that will enable
them to more effectively manage the
program.
The interim rule also amended FAR
subpart 19.7 and related clauses to
clarify existing small business
subcontracting program requirements.
The FAR interim rule was not
intended to change any of the
requirements for the individual or
summary subcontract reports. Its
purpose was only to require submission
of subcontract reports electronically,
rather than in hardcopy.
Nineteen commenters submitted
comments on the interim rule. A
discussion of those comments and the
changes made to the rule as a result of
those comments is provided below.
The comments will be discussed in
three overall categories. Those that
pertain to the FAR rule itself, those that
do not pertain to the FAR rule, and
those that were submitted in response to
the Councils’ question in the Federal
Register notice for the interim rule
concerning whether the reporting period
covered by a Summary Subcontract
Report for a commercial subcontracting
plan should remain the Government’s
fiscal year, or be the contractor’s fiscal
year.
The comments submitted that did not
pertain to the FAR rule itself covered
such things as changes that need to be
made to eSRS to ensure that the
instructions in that electronic system
are consistent with this FAR rule,
changes that need to be made to
electronic business systems that
interface with eSRS, and changes that
need to be made to regulations that
supplement the FAR. These comments
will be referred to the appropriate
Government officials for their
consideration. These comments will not
be addressed individually in this
E:\FR\FM\16JNR3.SGM
16JNR3
]]>Agencies
[Federal Register Volume 75, Number 115 (Wednesday, June 16, 2010)]
[Rules and Regulations]
[Pages 34258-34260]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-14189]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 3 and 52
[FAC 2005-42; FAR Case 2009-012; Item I; Docket 2009-0009, Sequence 1]
RIN 9000-AL19
Federal Acquisition Regulation; FAR Case 2009-012, American
Recovery and Reinvestment Act (the Recovery Act) of 2009--
Whistleblower Protections
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Civilian Agency Acquisition Council and the Defense
Acquisition Regulations Council (the Councils) have adopted as final,
with changes, an interim rule amending the Federal Acquisition
Regulation (FAR) to implement the American Recovery and Reinvestment
Act of 2009 (the Recovery Act) with respect to section 1553 of Division
A, Protecting State and Local Government and Contractor Whistleblowers.
This rule prohibits non-Federal employers from discharging, demoting,
or discriminating against an employee as a reprisal for disclosing
information.
DATES: Effective Date: June 16, 2010.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
Ms. Jeritta Parnell, Procurement Analyst, at (202) 501-4082. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-42, FAR
Case 2009-012.
SUPPLEMENTARY INFORMATION:
A. Background
DoD, GSA, and NASA published an interim rule in the Federal
Register at 74 FR 14633 on March 31, 2009, to implement the Recovery
Act with respect to section 1553 of Division A, Protecting State and
Local Government and Contractor Whistleblowers. A Technical Amendment
was published in the Federal Register at 74 FR 22810 on May 14, 2009.
The comment period closed on June 1, 2009. Six comments from two
respondents were received. The Councils considered the comments
received and concluded that the interim rule should be converted to a
final rule with minor changes.
The comments received are discussed below.
a.The first respondent submitted the following 4 comments.
Comment 1. The respondent believes that the prescription at FAR
3.907-7 is too broad and should be revised to limit application more
specifically to work funded with the Recovery Act funds. Revised
language is proposed for FAR 3.907-7 as follows: ``Use the clause at
52.203-15, Whistleblower Protections under the ARRA of 2009 in--All
solicitations and contracts entirely funded with Recovery Act funds;
and All solicitations and contracts funded in part with Recovery Act
funds for the work to be funded with those Recovery Act funds.''
Response. Section 1553 prohibits reprisals against any employee of
a contractor receiving ``covered funds'' for disclosing certain
information related to ``covered funds.'' The limitation of the
applicability of the rule is created by the
[[Page 34259]]
definition of covered information, which means only information that
the employee reasonably believes is evidence of gross mismanagement of
the contract or subcontract related to covered funds, gross waste of
covered funds, a substantial and specific danger to public health or
safety related to the implementation or use of covered funds, an abuse
of authority related to the implementation or use of covered funds, or
a violation of law, rule, or regulation related to an agency contract
(including the competition for or negotiation of a contract) awarded or
issued relating to covered funds. It does not apply to information
relating to problems not associated with the use of covered funds.
Section 1553 defines ``Covered funds'' to mean any contract, grant,
or other payment received by a contractor if--
(1) The Federal Government provides any portion of the money or
property that is provided, requested, or demanded; and
(2) At least some of the funds are appropriated or otherwise made
available by the Recovery Act.
As defined in section 1553, covered funds is broader than just
funds appropriated or otherwise made available by the Recovery Act.
Since the prohibition of reprisals applies to any employee of the
contractor receiving the covered funds, the clause prescription as
stated in the interim rule at FAR 3.907-7 is correct. However, the
Councils have revised the definition of ``covered funds'' at FAR 3.907-
1 to be more consistent with the statutory definition, and have revised
the flowdown in the clause at FAR 52.203-15(b) to apply only to
subcontracts that are funded in whole or in part with the Recovery Act
funds.
Comment 2. The respondent states that because section 1553 of the
Recovery Act is implemented by FAR 52.203-15 and included in contracts
for commercial items by FAR 52.212-5(b)(3), it is not necessary to
amend paragraph (r) of FAR 52.212-4.
Response. The Councils agree. The newly added language at FAR
52.212-4(r) is deleted.
Comment 3. The respondent states that the clause at FAR 52.203-15
should be indicated as a ``check-off'' clause as has been noted for FAR
52.212-5(b)(4), and FAR 52.204-11 (FAR Case 2009-009).
Response. The Councils agree. However, it is not necessary to make
any further changes to the rule. This is a checklist being interpreted
correctly by the U.S. National Archives and Records Administration and
the U.S. Government Printing Office.
Comment 4. The respondent states that it is unnecessary to include
the reference to FAR 52.203-15 in paragraph (e)(1) of FAR 52.212-5
because this was incorporated under FAR Case 2009-011.
Response. The Councils partially agree. The Technical Amendment to
the rule, published in the Federal Register at 74 FR 22810 on May 14,
2009, moved this paragraph to the Alternate II.
b. The second respondent submitted 2 comments to the interim rule.
Comment 1. The respondent believes that the rule should be amended
to require the contracting officer to immediately forward the complaint
ONLY to the Office of Inspector General (OIG).
Response. The Councils partially agree. The language in FAR 3.907-
3(c) is revised to add ``and to other designated officials in
accordance with agency procedures (e.g., agency legal counsel'') so
that agencies are informed as well as the OIG.
Comment 2. The respondent believes that the Recovery Act grants
authority concerning the extension of time for investigating complaints
and the determination on whether or not to investigate or to
discontinue an investigation to the IG, not to the agency head as
stated in FAR 3.907-6(c)(1).
Response. The Councils agree that subsection (b) of section 1553
gives the authority to the IG. However, FAR 3.907-6(c)(1) reflects the
wording of subsection (c)(3) of section 1553. The FAR did not create
any new authority here.
In addition, the Councils added a reference, at FAR 52.203-15, to
the web address where contractors may obtain a whistleblower poster
developed by the Recovery Accountability and Transparency (RAT) Board.
This is a significant regulatory action and, therefore, was subject
to Office of Management and Budget review under section 6 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 Department of Defense, the General Services Administration, and
the National Aeronautics and Space Administration certify that this
final rule will not have a significant economic impact on a substantial
number of small entities within the meaning of the Regulatory
Flexibility Act, 5 U.S.C. 601, et seq., because the rule applies
similar, but not identical, whistleblower protections to contractor and
subcontractor employees as currently covered in FAR subpart 3.9.
Likewise, this rule only applies to contracts awarded with Recovery Act
funds.
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 Parts 3 and 52
Government procurement.
Dated: June 2, 2010.
Edward Loeb,
Acting Director, Acquisition Policy Division.
0
Accordingly, the interim rule published in the Federal Register at 74
FR 14633 on March 31, 2009, is adopted as a final rule with the
following changes:
0
1. The authority citation for 48 CFR parts 3 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 3--IMPROPER BUSINESS PRACTICES AND PERSONAL CONFLICTS OF
INTEREST
0
2. Amend section 3.907-1 by revising the definition of ``Covered
funds'' to read as follows:
3.907-1 Definitions.
* * * * *
Covered funds means any contract payment, grant payment, or other
payment received by a contractor if--
(1) The Federal Government provides any portion of the money or
property that is provided, requested, or demanded; and
(2) At least some of the funds are appropriated or otherwise made
available by the Recovery Act.
* * * * *
0
3. Amend section 3.907-3 by revising paragraph (c) to read as follows:
3.907-3 Procedures for filing complaints.
* * * * *
(c) A contracting officer who receives a complaint of reprisal of
the type described in 3.907-2 shall forward it to the Office of
Inspector General and to other designated officials in accordance with
agency procedures (e.g., agency legal counsel).
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
4. Amend section 52.203-15 by revising the date of the clause, and
paragraphs (a) and (b) to read as follows:
[[Page 34260]]
52.203-15 Whistleblower Protections Under the American Recovery and
Reinvestment Act of 2009.
* * * * *
WHISTLEBLOWER PROTECTIONS UNDER THE AMERICAN RECOVERY AND
REINVESTMENT ACT OF 2009 (JUN 2010)
(a) The Contractor shall post notice of employees rights and
remedies for whistleblower protections provided under section 1553 of
the American Recovery and Reinvestment Act of 2009 (Pub. L. 111-5)
(Recovery Act).
(b) The Contractor shall include the substance of this clause,
including this paragraph (b), in all subcontracts that are funded in
whole or in part with Recovery Act funds.
* * * * *
52.212-4 [Amended]
0
5. Amend section 52.212-4 by removing the clause date ``(Mar 2009)''
and adding ``(JUN 2010)'' and removing from paragraph (r) ``Section
1553 of the American Recovery and Reinvestment Act of 2009 relating to
whistleblower protections for contracts funded under that Act;''.
0
6. Amend section 52.212-5 by--
0
a. Revising the date of the clause;
0
b. Removing from paragraph (b)(3) ``(Mar 2009)'' and adding ``(JUN
2010)'' in its place; and
0
c. Revising paragraph (e)(1)(ii)(B) of Alternate II.
The revised text reads as follows:
52.212-5 Contract Terms and Conditions Required to Implement Statutes
or Executive Orders--Commercial Items.
* * * * *
CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR
EXECUTIVE ORDERS--COMMERCIAL ITEMS (JUN 2010)
* * * * *
Alternate II * * *
* * * * *
(e)(1) * * *
(ii) * * *
(B) 52.203--15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub.
L. 111-5).
* * * * *
0
7. Amend section 52.213-4 by revising the date of the clause and
paragraph (a)(2)(vi) to read as follows:
52.213-4 Terms and Conditions--Simplified Acquisitions (Other Than
Commercial Items).
* * * * *
TERMS AND CONDITIONS--SIMPLIFIED ACQUISITIONS (OTHER THAN
COMMERCIAL ITEMS) (JUN 2010)
(a) * * *
(2) * * *
(vi) 52.244-6, Subcontracts for Commercial Items (JUN 2010).
* * * * *
0
8. Amend section 52.244-6 by revising the date of the clause and
paragraph (c)(1)(ii) to read as follows:
52.244-6 Subcontracts for Commercial Items.
* * * * *
SUBCONTRACTS FOR COMMERCIAL ITEMS (JUN 2010)
* * * * *
(c)(1) * * *
(ii) 52.203-15, Whistleblower Protections Under the American
Recovery and Reinvestment Act of 2009 (JUN 2010) (Section 1553 of Pub.
L. 111-5), if the subcontract is funded under the Recovery Act.
* * * * *
[FR Doc. 2010-14189 Filed 6-15-10; 8:45 am]
BILLING CODE 6820-EP-S
