Federal Acquisition Regulation; Certification Requirement and Procurement Prohibition Relating to Iran Sanctions, 60254-60258 [2010-24165]
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Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations
entitled ‘‘Federal Contractor Veterans’
Employment Report (VETS–100A Report).’’
(d) The Contractor shall submit VETS–
100A Reports no later than September 30 of
each year.
(e) The employment activity report
required by paragraphs (b)(2) and (b)(3) of
this clause shall reflect total new hires, and
maximum and minimum number of
employees, during the most recent 12-month
period preceding the ending date selected for
the report. Contractors may select an ending
date—
(1) As of the end of any pay period
between July 1 and August 31 of the year the
report is due; or
(2) As of December 31, if the Contractor has
prior written approval from the Equal
Employment Opportunity Commission to do
so for purposes of submitting the Employer
Information Report EEO–1 (Standard Form
100).
(f) The number of veterans reported must
be based on data known to the contractor
when completing the VETS–100A. The
contractor’s knowledge of veterans status
may be obtained in a variety of ways,
including an invitation to applicants to selfidentify (in accordance with 41 CFR 60–
300.42), voluntary self-disclosure by
employees, or actual knowledge of veteran
status by the contractor. This paragraph does
not relieve an employer of liability for
discrimination under 38 U.S.C. 4212.
(g) The Contractor shall insert the terms of
this clause in subcontracts of $100,000 or
more unless exempted by rules, regulations,
or orders of the Secretary of Labor.
(End of clause)
17. Amend section 52.222–38 by
revising the date of the provision and
the provision to read as follows:
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52.222–38 Compliance with Veterans’
Employment Reporting Requirements.
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COMPLIANCE WITH VETERANS’
EMPLOYMENT REPORTING
REQUIREMENTS (SEP 2010)
By submission of its offer, the offeror
represents that, if it is subject to the reporting
requirements of 38 U.S.C. 4212(d) (i.e., if it
has any contract containing Federal
Acquisition Regulation clause 52.222–37,
Employment Reports on Veterans), it has
submitted the most recent VETS–100A
Report required by that clause.
(End of provision)
18. Amend section 52.244–6 by
revising the date of the clause and
paragraph (c)(1)(v) to read as follows:
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52.244–6
Items.
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Subcontracts for Commercial
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SUBCONTRACTS FOR COMMERCIAL
ITEMS (SEP 2010)
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(c)(1) * * *
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(v) 52.222–35, Equal Opportunity for
Veterans (SEP 2010) (38 U.S.C. 4212(a));
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[FR Doc. 2010–24218 Filed 9–28–10; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 4, 25 and 52
[FAC 2005–46; FAR Case 2010–012; Item
II; Docket 2010–0102, Sequence 1]
RIN 9000–AL71
Federal Acquisition Regulation;
Certification Requirement and
Procurement Prohibition Relating to
Iran Sanctions
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Interim rule with request for
comments.
AGENCY:
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 section
102 and partially implements section
106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010. Section 102
requires certification that each offeror,
and any person owned or controlled by
the offeror, does not engage in any
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act of 1996, as amended (the
Iran Sanctions Act). Section 106
imposes a procurement prohibition
relating to contracts with persons that
export certain sensitive technology to
Iran. There will be further
implementation of section 106 in FAR
Case 2010–018.
DATES: Effective Date: September 29,
2010.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
November 29, 2010 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–46, FAR Case
2010–012, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov.
SUMMARY:
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Submit comments via the Federal
eRulemaking portal by inputting ‘‘FAR
Case 2010–012’’ under the heading
‘‘Enter Keyword or ID’’ and selecting
‘‘Search.’’ Select the link ‘‘Submit a
Comment’’ that corresponds with ‘‘FAR
Case 2010–012.’’ Follow the instructions
provided at the ‘‘Submit a Comment’’
screen. Please include your name,
company name (if any), and ‘‘FAR Case
2010–012’’ on your attached document.
• Fax: 202–501–4067.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), 1800 F Street, NW., Room
4041, Attn: Hada Flowers, Washington,
DC 20405.
Instructions: Please submit comments
only and cite FAC 2005–46, FAR Case
2010–012, 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: For
clarification of content, contact Ms.
Cecelia L. Davis, Procurement Analyst,
at (202) 219–0202. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755. Please
cite FAC 2005–46, FAR Case 2010–012.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements section
102 and partially implements section
106 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010 (Pub. L. 111–
195), enacted July 1, 2010. Section 102,
entitled ‘‘Expansion of Sanctions under
the Iran Sanctions Act of 1996,’’ requires
that, not later than 90 days after the date
of the enactment of Public Law 111–
195, the FAR shall be revised to require
a certification from each person that is
a prospective contractor that the person,
and any person owned or controlled by
the person, does not engage in any
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act.
This interim rule has added in FAR
subpart 25.7 a new section 25.703,
Prohibition on contracting with entities
that engage in certain activities relating
to Iran. This section provides a
definition of ‘‘person’’ at FAR 25.703–1,
which is applicable to both of the
following subsections.
FAR 25.703–2 implements section
102 of Public Law 111–195. It explains
the certification requirement at FAR
25.703–2(a) and provides a summary of
the activities for which sanctions may
be imposed, which are described in
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more detail in section 5 of the Iran
Sanctions Act.
Remedies are located at FAR 25.703–
2(b). If the head of an executive agency
determines that a person has submitted
a false certification, the agency shall
take one or more of the following
actions:
(1) The contracting officer may
terminate the contract.
(2) The suspending official may
suspend the contractor in accordance
with the procedures in FAR subpart 9.4.
(3) The debarring official may debar
the contractor for a period not to exceed
3 years in accordance with the
procedures in FAR subpart 9.4.
Section 102 also provides that the
remedies set forth shall not apply with
respect to the procurement of eligible
products, as defined in section 308(4) of
the Trade Agreements Act of 1974 (19
U.S.C. 2518(4)), of any foreign country
or instrumentality designated under
section 301(b) of that Act (19 U.S.C.
2511(b)). The Councils interpreted this
provision to mean that in acquisitions
that are subject to trade agreements,
eligible products from designated
countries are not subject to the
certification requirement (FAR 25.703–
2(c)) or the remedies.
This interim rule establishes a waiver
procedure at FAR 25.703–2(d), as
authorized by the statute. The President
may waive the requirement of
subsection 25.703–2(a) on a case-by-case
basis, if the President determines and
certifies in writing to the appropriate
congressional committees (Committee
on Armed Services of the Senate,
Committee on Finance of the Senate,
Committee on Banking, Housing, and
Urban Affairs of the Senate, Committee
on Foreign Relations of the Senate,
Committee on Armed Services of the
House of Representatives, Committee on
Ways and Means of the House of
Representatives, Committee on
Financial Services of the House of
Representatives, and Committee on
Foreign Affairs of the House of
Representatives) that it is in the national
interest to do so. ‘‘Appropriate
congressional committees’’ is defined in
section 101 of Public Law 111–195,
which refers to section 14 of the Iran
Sanctions Act, as amended by section
102 paragraph (f) of Public Law 111–
195. In addition, section 102 amended
section 6 of the Iran Sanctions Act to
require certification in writing to the
Committee on Armed Services of the
Senate and Committee on Armed
Services of the House of
Representatives, in addition to the
‘‘appropriate congressional committees,’’
as defined in section 14 of the Iran
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Sanctions Act. The President may
delegate this authority.
The statutory certification
requirement is communicated to
offerors through a new provision at FAR
52.225–25, Prohibition on Engaging in
Sanctioned Activities Relating to Iran—
Certification. This requirement is also
applied to acquisition of commercial
items at FAR 52.212–3, paragraph (o)
(see Section B, Determinations). Offerors
will also be able to make an annual
certification through the Online
Representations and Certifications
Application (ORCA), if the offeror is
registered in the Central Contractor
Registration. Therefore, conforming
changes have been made to FAR part 4
and the FAR clause at 52.204–8, Annual
Representations and Certifications.
Section 106 of Public Law 111–195
(22 U.S.C. 8515) is partially
implemented in new FAR subsection
25.703–3. Agencies are prohibited from
entering into or extending a contract for
the procurement of goods or services
with a person that exports certain
sensitive technology to Iran, as
determined by the President and listed
on the Excluded Parties List System.
There will be further implementation of
section 106 in FAR Case 2010–018.
This is a significant regulatory action
and, therefore, was 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. Determinations
The Federal Acquisition Regulatory
(FAR) Council has made the following
determinations with respect to the rule’s
applicability of section 102 and 106 of
the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 (Pub. L. 111–195), to contracts in
amounts not greater than the simplified
acquisition threshold (SAT), contracts
for the acquisition of commercial items,
and contracts for the acquisition of
commercially available off-the-shelf
(COTS) items.
1. Applicability to Contracts at or Below
the Simplified Acquisition Threshold
Section 4101 of Pub. L. 103–355, the
Federal Acquisition Streamlining Act
(FASA) (41 U.S.C. 429), governs the
applicability of laws to contracts or
subcontracts in amounts not greater
than the SAT. It is intended to limit the
applicability of laws to them. FASA
provides that if a provision of law
contains criminal or civil penalties, or if
the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt contracts or subcontracts at or
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60255
below the SAT, the law will apply to
them. Therefore, given that the
requirements of sections 102 and 106 of
the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 were enacted to widen the
sanctions against Iran, the FAR Council
has determined that it is in the best
interest of the Federal Government to
apply this rule to all acquisitions
including contracts at or below the SAT,
as defined at FAR 2.101. An exception
for acquisitions at or below the SAT
would exclude a significant portion of
Federal contracting and the contractors
who provide these products and
services, thereby undermining the
overarching public policy purpose of
the law.
2. Applicability to Contracts for the
Acquisition of Commercial Items
Section 8003 of Public Law 103–355,
the Federal Acquisition Streamlining
Act (FASA) (41 U.S.C. 430), governs the
applicability of laws to contracts for the
acquisition of commercial items, and is
intended to limit the applicability of
laws to contracts for the acquisition of
commercial items.
FASA provides that if a provision of
law contains criminal or civil penalties,
or if the FAR Council makes a written
determination that it is not in the best
interest of the Federal Government to
exempt commercial item contracts, the
provision of law will apply to contracts
for the acquisition of commercial items.
Therefore, given that the requirements
of sections 102 and 106 of the
Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 were enacted to widen the
sanctions against Iran, the FAR Council
has determined that it is in the best
interest of the Federal Government to
apply the rule to contracts for the
acquisition of commercial items, as
defined at FAR 2.101. An exception for
contracts for the acquisition of
commercial items would exclude a
significant portion of Federal
contracting and the contractors who
provide these products and services,
thereby undermining the overarching
public policy purpose of the law.
3. Applicability to Contracts for the
Acquisition of (COTS) Items
Section 4203 of Public Law 104–106,
the Clinger-Cohen Act of 1996 (41
U.S.C. 431), governs the applicability of
laws to contracts for the acquisition of
COTS items, and is intended to limit the
applicability of laws to them. ClingerCohen provides that if a provision of
law contains criminal or civil penalties,
or if the Administrator for Federal
Procurement Policy makes a written
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determination that it is not in the best
interest of the Federal Government to
exempt contracts for the acquisition of
COTS items, the provision of law will
apply. Therefore, given that the
requirements of sections 102 and 106 of
the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 were enacted to widen the
sanctions against Iran, the
Administrator for Federal Procurement
Policy has determined that it is in the
best interest of the Federal Government
to apply the rule to contracts for the
acquisition of COTS items, as defined at
FAR 2.101. An exception for contracts
for the acquisition of COTS items would
exclude a significant portion of Federal
contracting and the contractors who
provide these products and services,
thereby undermining the overarching
public policy purpose of the law.
C. 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, 5 U.S.C. 601, et seq., because this
rule will only have significant impact
on an offeror that is engaging in an
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act or that is exporting
sensitive technology to Iran. Domestic
entities generally do not engage in
activity that would cause them to be
subject to the procurement bans
described in this rule due to current
restrictions on trade with Iran (see, e.g.,
Department of the Treasury Office of
Foreign Assets Control regulations at 31
CFR 560). Accordingly, it is expected
that the number of domestic entities
significantly impacted by this rule will
be minimal, if any. The Regulatory
Flexibility Act is for the protection of
United States small entities, not foreign
entities. Therefore, an Initial Regulatory
Flexibility Analysis has not been
performed. The Councils invite
comments from small business concerns
and other interested parties on the
expected impact of this rule on small
entities.
The Councils will also consider
comments from small entities
concerning the existing regulations in
parts affected by this rule in accordance
with 5 U.S.C. 610. Interested parties
must submit such comments separately
and should cite 5 U.S.C. 610 (FAC
2005–46, FAR Case 2010–012) in all
correspondence.
D. Paperwork Reduction Act
The Paperwork Reduction Act does
not apply because the changes to the
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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.
E. 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 because the rule
implements sections 102 and 106 of the
Comprehensive Iran Sanctions,
Accountability, and Divestment Act of
2010 (Pub. L. 111–195), which was
signed on July 1, 2010. Section 102 must
be implemented within 90 days (i.e.,
September 29, 2010). Section 106 was
effective upon enactment banning
activity that takes place on or after the
date that is 90 days after enactment.
However, pursuant to 41 U.S.C. 418b
and FAR 1.501–3(b), 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 4, 25,
and 52
Government procurement.
Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 4, 25, and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 4, 25, 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 4—ADMINISTRATIVE MATTERS
2. Amend section 4.1202 by
redesignating paragraphs (bb), (cc), and
(dd) as paragraphs (cc), (dd), and (ee),
respectively, and adding a new
paragraph (bb) to read as follows:
■
4.1202 Solicitation provision and contract
clause.
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(bb) 52.225–25, Prohibition on
Engaging in Sanctioned Activities
Relating to Iran—Certification.
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PART 25—FOREIGN ACQUISITION
3. Revise section 25.700 to read as
follows:
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25.700
Scope of subpart.
This subpart implements—
(a) Economic sanctions administered
by the Office of Foreign Assets Control
(OFAC) in the Department of the
Treasury prohibiting transactions
involving certain countries, entities, and
individuals;
(b) The Sudan Accountability and
Divestment Act of 2007 (Pub. L. 110–
174);
(c) The Iran Sanctions Act of 1996
(Iran Sanctions Act) (Pub. L. 104–172;
50 U.S.C. 1701 note), including
amendments by the Iran Freedom
Support Act (Pub. L. 109–293) and
section 102 of the Comprehensive Iran
Sanctions, Accountability, and
Divestment Act of 2010 (Pub. L. 111–
195); and
(d) Section 106 of the Comprehensive
Iran Sanctions, Accountability, and
Divestment Act of 2010 (22 U.S.C.
8515).
■ 4. Amend section 25.701 by revising
the section heading to read as follows:
25.701 Restrictions administered by the
Department of the Treasury on acquisitions
of supplies or services from prohibited
sources.
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5. Add sections 25.703 through
25.703–3 to read as follows:
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25.703 Prohibition on contracting with
entities that engage in certain activities
relating to Iran.
25.703–1
Definition.
Person—
(1) Means—
(i) A natural person;
(ii) A corporation, business
association, partnership, society, trust,
financial institution, insurer,
underwriter, guarantor, and any other
business organization, any other
nongovernmental entity, organization,
or group, and any governmental entity
operating as a business enterprise; and
(iii) Any successor to any entity
described in paragraph (1)(ii) of this
definition; and
(2) Does not include a government or
governmental entity that is not
operating as a business enterprise.
25.703–2
Iran Sanctions Act.
(a) Certification.
(1) As required by the Iran Sanctions
Act, unless an exception applies or a
waiver is granted in accordance with
paragraph (c) or (d) of this subsection,
each offeror must certify that the offeror,
and any person owned or controlled by
the offeror, does not engage in any
activity for which sanctions may be
imposed under section 5 of the Iran
Sanctions Act.
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(2) In general, the following activities,
which are described in detail in section
5 of the Iran Sanctions Act, are activities
for which sanctions may be imposed on
or after July 1, 2010—
(i) Knowingly making an investment
of $20,000,000 or more, or a
combination of investments of
$5,000,000 or more that equal or exceed
$20,000,000 in a 12-month period, that
directly and significantly contribute to
the enhancement of Iran’s ability to
develop petroleum resources.
(ii) Knowingly selling, leasing or
providing to Iran goods, services,
technology, information, or support
with a fair market value of $1,000,000
or more, or during a 12-month period
with an aggregate fair market value of
$5,000,000 or more, that could directly
and significantly facilitate the
maintenance or expansion of Iran’s
domestic production of refined
petroleum products, including any
direct and significant assistance with
respect to the construction,
modernization, or repair of petroleum
refineries.
(iii) Knowingly selling or providing to
Iran refined petroleum products with a
fair market value of $1,000,000 or more,
or during a 12-month period with an
aggregate fair market value of
$5,000,000 or more.
(iv) Knowingly selling, leasing, or
providing to Iran goods, services,
technology, information, or support
with a fair market value of $1,000,000
or more, or during a 12-month period
with an aggregate fair market value of
$5,000,000 or more, that could directly
and significantly contribute to the
enhancement of Iran’s ability to import
refined petroleum products, including—
(A) Certain insurance or reinsurance,
underwriting, financing, or brokering for
the sale, lease, or provision of such
items, or
(B) Providing ships or shipping
services to deliver refined petroleum
products to Iran.
(v) Exporting, transferring, or
otherwise providing to Iran any goods,
services, technology or other items
knowing that it would contribute
materially to the ability of Iran to
acquire or develop chemical, biological,
or nuclear weapons or related
technologies, or acquire or develop
destabilizing numbers and types of
advanced conventional weapons.
(b) Remedies. Upon the determination
of a false certification under paragraph
(a) of this subsection, the agency shall
take one or more of the following
actions:
(1) The contracting officer may
terminate the contract.
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(2) The suspending official may
suspend the contractor in accordance
with the procedures in subpart 9.4.
(3) The debarring official may debar
the contractor for a period not to exceed
3 years in accordance with the
procedures in subpart 9.4.
(c) Exception for trade agreements.
The certification requirements of
paragraph (a) of this subsection do not
apply with respect to the procurement
of eligible products, as defined in
section 308(4) of the Trade Agreements
Act of 1974 (19 U.S.C. 2518(4)), of any
foreign country or instrumentality
designated under section 301(b) of that
Act (19 U.S.C. 2511(b)) (see subpart
25.4).
(d) Waiver. (1) The President may
waive the requirement of subsection
25.703–2(a) on a case-by-case basis if
the President determines and certifies in
writing to the appropriate congressional
committees (Committee on Armed
Services of the Senate, Committee on
Finance of the Senate, Committee on
Banking, Housing, and Urban Affairs of
the Senate, Committee on Foreign
Relations of the Senate, Committee on
Armed Services of the House of
Representatives, Committee on Ways
and Means of the House of
Representatives, Committee on
Financial Services of the House of
Representatives, and Committee on
Foreign Affairs of the House of
Representatives) that it is in the national
interest to do so.
(2) An agency or contractor seeking a
waiver of the requirement shall submit
the request through the Office of Federal
Procurement Policy (OFPP), allowing
sufficient time for review and approval.
Upon receipt of the waiver request,
OFPP shall consult with the President’s
National Security Council, the Office of
Terrorism and Financial Intelligence in
the Department of the Treasury, and the
Office of Terrorism Finance and
Economic Sanctions Policy, Bureau of
Economic, Energy, and Business Affairs
in the State Department, allowing
sufficient time for review and approval.
(3) In general, all waiver requests
should include the following
information:
(i) Agency name, complete mailing
address, and point of contact name,
telephone number, and e-mail address.
(ii) Offeror’s name, complete mailing
address, and point of contact name,
telephone number, and e-mail address.
(iii) Description/nature of product or
service.
(iv) The total cost and length of the
contract.
(v) Justification, with market research
demonstrating that no other offeror can
provide the product or service and
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60257
stating why the product or service must
be procured from this offeror, as well as
why it is in the national interest for the
President to waive the prohibition on
contracting with this offeror that
conducts activities for which sanctions
may be imposed under section 5 of the
Iran Sanctions Act of 1996.
(vi) Documentation regarding the
offeror’s past performance and integrity
(see the Past Performance Information
Retrieval System (including the Federal
Awardee Performance Information and
Integrity System at https://
www.ppirs.gov) and any other relevant
information).
(vii) Information regarding the
offeror’s relationship or connection with
other firms that conduct activities for
which sanctions may be imposed under
section 5 of the Iran Sanctions Act of
1996.
(viii) The activities in which the
offeror is engaged for which sanctions
may be imposed under section 5 of the
Iran Sanctions Act of 1996.
25.703–3 Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010,
section 106.
The head of an executive agency may
not enter into or extend a contract for
the procurement of goods or services
with a person that exports certain
sensitive technology to Iran, as
determined by the President and listed
on the Excluded Parties List System at
https://www.epls.gov/.
■ 6. Amend section 25.1103 by adding
paragraph (e) to read as follows:
25.1103
Other provisions and clauses.
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(e) The contracting officer shall
include in each solicitation for the
acquisition of products or services the
provision at 52.225–25, Prohibition on
Engaging in Sanctioned Activities
Relating to Iran—Certification.
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
7. Amend section 52.204–8 by—
a. Revising the date of the clause;
b. Adding a sentence to the end of
paragraph (c)(1)(xviii); and
■ c. Redesignating paragraph (c)(1)(xix)
as paragraph (c)(1)(xx), and adding a
new paragraph (c)(1)(xix).
The revised and added text reads as
follows:
■
■
■
52.204–8 Annual Representations and
Certifications.
*
*
*
*
*
ANNUAL REPRESENTATIONS AND
CERTIFICATIONS (SEP 2010)
*
E:\FR\FM\29SER3.SGM
*
*
29SER3
*
*
60258
Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations
(c)(1) * * *
(xviii) * * * This provision applies to all
solicitations.
(xix) 52.225–25, Prohibition on Engaging in
Sanctioned Activities Relating to Iran—
Certification. This provision applies to all
solicitations.
*
*
*
*
*
8. Amend section 52.212–3 by—
a. Revising the date of the clause;
b. Removing from the introductory
text ‘‘through (m) of’’ and adding
‘‘through (o) of’’ in its place;
■ c. Removing from the first
undesignated paragraph of (b)(2)
‘‘through (n) of’’ and adding ‘‘through (o)
of’’ in its place; and
■ d. Adding paragraph (o).
The revised and added text reads as
follows:
■
■
■
52.212–3 Offeror Representations and
Certifications—Commercial Items.
*
*
*
*
*
OFFEROR REPRESENTATIONS AND
CERTIFICATIONS—COMMERCIAL
ITEMS (SEP 2010)
*
*
*
*
*
(o) Sanctioned activities relating to Iran. (1)
Unless a waiver is granted or an exception
applies as provided in paragraph (o)(2) of this
provision, by submission of its offer, the
offeror certifies that the offeror, or any person
owned or controlled by the offeror, does not
engage in any activities for which sanctions
may be imposed under section 5 of the Iran
Sanctions Act of 1996.
(2) The certification requirement of
paragraph (o)(1) of this provision does not
apply if—
(i) This solicitation includes a trade
agreements certification (e.g., 52.212–3(g) or
a comparable agency provision); and
(ii) The offeror has certified that all the
offered products to be supplied are
designated country end products.
*
*
*
*
■ 9. Add section 52.225–25 to read as
follows:
PROHIBITION ON ENGAGING IN
SANCTIONED ACTIVITIES RELATING
TO IRAN—CERTIFICATION (SEP
2010)
erowe on DSK5CLS3C1PROD with RULES3
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 8, 12, 15, 42, and 49
[FAC 2005–46; FAR Case 2008–016; Item
III; Docket 2009–0032, Sequence 1]
Effective Date: October 29, 2010.
For
clarification of content, contact 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 2005–46, FAR
case 2008–016.
SUPPLEMENTARY INFORMATION:
DATES:
FOR FURTHER INFORMATION CONTACT:
A. Background
The Councils have agreed on a final
rule amending the FAR to revise the
contractor performance information
process. This case sets forth
requirements for contracting officers to
report defective cost or pricing data and
terminations for cause or default into
the FAPIIS module of the PPIRS.
Evaluation of past performance
information, especially terminations,
manages risks associated with timely,
effective, and cost efficient completion
of contracts, a key objective of the
President’s March 4, 2009,
Memorandum on Government
Contracting.
The Councils published in the
Federal Register at 74 FR 45394 on
September 2, 2009, a proposed rule with
request for comments. Four respondents
submitted fifteen comments.
B. Discussion of Public Comments
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
The comments received were grouped
under six general topics. A summary of
these topics and a discussion of the
comments and the changes made to the
proposed rule as a result of those
comments are provided below:
1. Certification Regarding Responsibility
Matters
AGENCIES:
As prescribed at 25.1103(e), insert the
following provision:
(a) Definition.
Person—
(1) Means—
(i) A natural person;
(ii) A corporation, business association,
partnership, society, trust, financial
institution, insurer, underwriter, guarantor,
and any other business organization, any
other nongovernmental entity, organization,
or group, and any governmental entity
operating as a business enterprise; and
Jkt 220001
BILLING CODE 6820–EP–P
RIN 9000–AL45
52.225–25 Prohibition on Engaging in
Sanctioned Activities Relating to Iran—
Certification.
15:32 Sep 28, 2010
[FR Doc. 2010–24165 Filed 9–28–10; 8:45 am]
System (FAPIIS) module within PPIRS.
This information will assist the
contracting officer in making an
informed source selection and award
decision. Instructions on access to the
FAPIIS module and how to input data
into the FAPIIS module will be
available at https://www.ppirs.gov/
fapiis.html.
Federal Acquisition Regulation;
Termination for Default Reporting
*
VerDate Mar<15>2010
(iii) Any successor to any entity described
in paragraph (1)(ii) of this definition; and
(2) Does not include a government or
governmental entity that is not operating as
a business enterprise.
(b) Certification. Except as provided in
paragraph (c) of this provision or if a waiver
has been granted in accordance with FAR
25.703–2(d), by submission of its offer, the
offeror certifies that the offeror, or any person
owned or controlled by the offeror, does not
engage in any activities for which sanctions
may be imposed under section 5 of the Iran
Sanctions Act of 1996. These sanctioned
activities are in the areas of development of
the petroleum resources of Iran, production
of refined petroleum products in Iran, sale
and provision of refined petroleum products
to Iran, and contributing to Iran’s ability to
acquire or develop certain weapons.
(c) Exception for trade agreements. The
certification requirement of paragraph (b) of
this provision does not apply if—
(1) This solicitation includes a trade
agreements certification (e.g., 52.225–4,
52.225–11 or comparable agency provision);
and
(2) The offeror has certified that all the
offered products to be supplied are
designated country end products or
designated country construction material.
(End of provision)
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council (the
Councils) are issuing a final rule
amending the Federal Acquisition
Regulation (FAR) to establish
procedures for contracting officers to
provide contractor information, such as
terminations for cause or default and
defective cost or pricing data, into the
Past Performance Information System
(PPIRS) and Federal Awardee
Performance and Integrity Information
SUMMARY:
PO 00000
Frm 00012
Fmt 4701
Sfmt 4700
Comment: One respondent
recommended deletion of the
certification on terminations found in
FAR clause 52.209–5, Certification
Regarding Responsibility Matters, since
the information concerning terminations
will be available to contracting officers
in PPIRS. The respondent further
suggested that conforming deletions
should also be made at FAR 52.204–
8(c)(1)(v) and in the Online
Representations and Certifications
Application (ORCA) Web site.
Response: The Councils disagree.
PPIRS is the repository for
E:\FR\FM\29SER3.SGM
29SER3
]]>Agencies
[Federal Register Volume 75, Number 188 (Wednesday, September 29, 2010)]
[Rules and Regulations]
[Pages 60254-60258]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-24165]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 4, 25 and 52
[FAC 2005-46; FAR Case 2010-012; Item II; Docket 2010-0102, Sequence 1]
RIN 9000-AL71
Federal Acquisition Regulation; Certification Requirement and
Procurement Prohibition Relating to Iran Sanctions
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) are issuing an interim rule
amending the Federal Acquisition Regulation (FAR) to implement section
102 and partially implements section 106 of the Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010. Section 102
requires certification that each offeror, and any person owned or
controlled by the offeror, does not engage in any activity for which
sanctions may be imposed under section 5 of the Iran Sanctions Act of
1996, as amended (the Iran Sanctions Act). Section 106 imposes a
procurement prohibition relating to contracts with persons that export
certain sensitive technology to Iran. There will be further
implementation of section 106 in FAR Case 2010-018.
DATES: Effective Date: September 29, 2010.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before November 29, 2010 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-46, FAR Case 2010-
012, by any of the following methods:
Regulations.gov: https://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by inputting
``FAR Case 2010-012'' under the heading ``Enter Keyword or ID'' and
selecting ``Search.'' Select the link ``Submit a Comment'' that
corresponds with ``FAR Case 2010-012.'' Follow the instructions
provided at the ``Submit a Comment'' screen. Please include your name,
company name (if any), and ``FAR Case 2010-012'' on your attached
document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), 1800 F Street, NW., Room 4041, Attn: Hada Flowers,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAC 2005-46, FAR
Case 2010-012, 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: For clarification of content, contact
Ms. Cecelia L. Davis, Procurement Analyst, at (202) 219-0202. For
information pertaining to status or publication schedules, contact the
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-46, FAR
Case 2010-012.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule implements section 102 and partially implements
section 106 of the Comprehensive Iran Sanctions, Accountability, and
Divestment Act of 2010 (Pub. L. 111-195), enacted July 1, 2010. Section
102, entitled ``Expansion of Sanctions under the Iran Sanctions Act of
1996,'' requires that, not later than 90 days after the date of the
enactment of Public Law 111-195, the FAR shall be revised to require a
certification from each person that is a prospective contractor that
the person, and any person owned or controlled by the person, does not
engage in any activity for which sanctions may be imposed under section
5 of the Iran Sanctions Act.
This interim rule has added in FAR subpart 25.7 a new section
25.703, Prohibition on contracting with entities that engage in certain
activities relating to Iran. This section provides a definition of
``person'' at FAR 25.703-1, which is applicable to both of the
following subsections.
FAR 25.703-2 implements section 102 of Public Law 111-195. It
explains the certification requirement at FAR 25.703-2(a) and provides
a summary of the activities for which sanctions may be imposed, which
are described in
[[Page 60255]]
more detail in section 5 of the Iran Sanctions Act.
Remedies are located at FAR 25.703-2(b). If the head of an
executive agency determines that a person has submitted a false
certification, the agency shall take one or more of the following
actions:
(1) The contracting officer may terminate the contract.
(2) The suspending official may suspend the contractor in
accordance with the procedures in FAR subpart 9.4.
(3) The debarring official may debar the contractor for a period
not to exceed 3 years in accordance with the procedures in FAR subpart
9.4.
Section 102 also provides that the remedies set forth shall not
apply with respect to the procurement of eligible products, as defined
in section 308(4) of the Trade Agreements Act of 1974 (19 U.S.C.
2518(4)), of any foreign country or instrumentality designated under
section 301(b) of that Act (19 U.S.C. 2511(b)). The Councils
interpreted this provision to mean that in acquisitions that are
subject to trade agreements, eligible products from designated
countries are not subject to the certification requirement (FAR 25.703-
2(c)) or the remedies.
This interim rule establishes a waiver procedure at FAR 25.703-
2(d), as authorized by the statute. The President may waive the
requirement of subsection 25.703-2(a) on a case-by-case basis, if the
President determines and certifies in writing to the appropriate
congressional committees (Committee on Armed Services of the Senate,
Committee on Finance of the Senate, Committee on Banking, Housing, and
Urban Affairs of the Senate, Committee on Foreign Relations of the
Senate, Committee on Armed Services of the House of Representatives,
Committee on Ways and Means of the House of Representatives, Committee
on Financial Services of the House of Representatives, and Committee on
Foreign Affairs of the House of Representatives) that it is in the
national interest to do so. ``Appropriate congressional committees'' is
defined in section 101 of Public Law 111-195, which refers to section
14 of the Iran Sanctions Act, as amended by section 102 paragraph (f)
of Public Law 111-195. In addition, section 102 amended section 6 of
the Iran Sanctions Act to require certification in writing to the
Committee on Armed Services of the Senate and Committee on Armed
Services of the House of Representatives, in addition to the
``appropriate congressional committees,'' as defined in section 14 of
the Iran Sanctions Act. The President may delegate this authority.
The statutory certification requirement is communicated to offerors
through a new provision at FAR 52.225-25, Prohibition on Engaging in
Sanctioned Activities Relating to Iran--Certification. This requirement
is also applied to acquisition of commercial items at FAR 52.212-3,
paragraph (o) (see Section B, Determinations). Offerors will also be
able to make an annual certification through the Online Representations
and Certifications Application (ORCA), if the offeror is registered in
the Central Contractor Registration. Therefore, conforming changes have
been made to FAR part 4 and the FAR clause at 52.204-8, Annual
Representations and Certifications.
Section 106 of Public Law 111-195 (22 U.S.C. 8515) is partially
implemented in new FAR subsection 25.703-3. Agencies are prohibited
from entering into or extending a contract for the procurement of goods
or services with a person that exports certain sensitive technology to
Iran, as determined by the President and listed on the Excluded Parties
List System. There will be further implementation of section 106 in FAR
Case 2010-018.
This is a significant regulatory action and, therefore, was 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. Determinations
The Federal Acquisition Regulatory (FAR) Council has made the
following determinations with respect to the rule's applicability of
section 102 and 106 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (Pub. L. 111-195), to
contracts in amounts not greater than the simplified acquisition
threshold (SAT), contracts for the acquisition of commercial items, and
contracts for the acquisition of commercially available off-the-shelf
(COTS) items.
1. Applicability to Contracts at or Below the Simplified Acquisition
Threshold
Section 4101 of Pub. L. 103-355, the Federal Acquisition
Streamlining Act (FASA) (41 U.S.C. 429), governs the applicability of
laws to contracts or subcontracts in amounts not greater than the SAT.
It is intended to limit the applicability of laws to them. FASA
provides that if a provision of law contains criminal or civil
penalties, or if the FAR Council makes a written determination that it
is not in the best interest of the Federal Government to exempt
contracts or subcontracts at or below the SAT, the law will apply to
them. Therefore, given that the requirements of sections 102 and 106 of
the Comprehensive Iran Sanctions, Accountability, and Divestment Act of
2010 were enacted to widen the sanctions against Iran, the FAR Council
has determined that it is in the best interest of the Federal
Government to apply this rule to all acquisitions including contracts
at or below the SAT, as defined at FAR 2.101. An exception for
acquisitions at or below the SAT would exclude a significant portion of
Federal contracting and the contractors who provide these products and
services, thereby undermining the overarching public policy purpose of
the law.
2. Applicability to Contracts for the Acquisition of Commercial Items
Section 8003 of Public Law 103-355, the Federal Acquisition
Streamlining Act (FASA) (41 U.S.C. 430), governs the applicability of
laws to contracts for the acquisition of commercial items, and is
intended to limit the applicability of laws to contracts for the
acquisition of commercial items.
FASA provides that if a provision of law contains criminal or civil
penalties, or if the FAR Council makes a written determination that it
is not in the best interest of the Federal Government to exempt
commercial item contracts, the provision of law will apply to contracts
for the acquisition of commercial items. Therefore, given that the
requirements of sections 102 and 106 of the Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010 were enacted to
widen the sanctions against Iran, the FAR Council has determined that
it is in the best interest of the Federal Government to apply the rule
to contracts for the acquisition of commercial items, as defined at FAR
2.101. An exception for contracts for the acquisition of commercial
items would exclude a significant portion of Federal contracting and
the contractors who provide these products and services, thereby
undermining the overarching public policy purpose of the law.
3. Applicability to Contracts for the Acquisition of (COTS) Items
Section 4203 of Public Law 104-106, the Clinger-Cohen Act of 1996
(41 U.S.C. 431), governs the applicability of laws to contracts for the
acquisition of COTS items, and is intended to limit the applicability
of laws to them. Clinger-Cohen provides that if a provision of law
contains criminal or civil penalties, or if the Administrator for
Federal Procurement Policy makes a written
[[Page 60256]]
determination that it is not in the best interest of the Federal
Government to exempt contracts for the acquisition of COTS items, the
provision of law will apply. Therefore, given that the requirements of
sections 102 and 106 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 were enacted to widen the
sanctions against Iran, the Administrator for Federal Procurement
Policy has determined that it is in the best interest of the Federal
Government to apply the rule to contracts for the acquisition of COTS
items, as defined at FAR 2.101. An exception for contracts for the
acquisition of COTS items would exclude a significant portion of
Federal contracting and the contractors who provide these products and
services, thereby undermining the overarching public policy purpose of
the law.
C. 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, 5 U.S.C. 601, et seq.,
because this rule will only have significant impact on an offeror that
is engaging in an activity for which sanctions may be imposed under
section 5 of the Iran Sanctions Act or that is exporting sensitive
technology to Iran. Domestic entities generally do not engage in
activity that would cause them to be subject to the procurement bans
described in this rule due to current restrictions on trade with Iran
(see, e.g., Department of the Treasury Office of Foreign Assets Control
regulations at 31 CFR 560). Accordingly, it is expected that the number
of domestic entities significantly impacted by this rule will be
minimal, if any. The Regulatory Flexibility Act is for the protection
of United States small entities, not foreign entities. Therefore, an
Initial Regulatory Flexibility Analysis has not been performed. The
Councils invite comments from small business concerns and other
interested parties on the expected impact of this rule on small
entities.
The Councils will also consider comments from small entities
concerning the existing regulations in parts affected by this rule in
accordance with 5 U.S.C. 610. Interested parties must submit such
comments separately and should cite 5 U.S.C. 610 (FAC 2005-46, FAR Case
2010-012) in all correspondence.
D. 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.
E. 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 because the rule implements sections 102 and 106 of the
Comprehensive Iran Sanctions, Accountability, and Divestment Act of
2010 (Pub. L. 111-195), which was signed on July 1, 2010. Section 102
must be implemented within 90 days (i.e., September 29, 2010). Section
106 was effective upon enactment banning activity that takes place on
or after the date that is 90 days after enactment. However, pursuant to
41 U.S.C. 418b and FAR 1.501-3(b), 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 4, 25, and 52
Government procurement.
Dated: September 21, 2010.
Edward Loeb,
Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4, 25, and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 4, 25, 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 4--ADMINISTRATIVE MATTERS
0
2. Amend section 4.1202 by redesignating paragraphs (bb), (cc), and
(dd) as paragraphs (cc), (dd), and (ee), respectively, and adding a new
paragraph (bb) to read as follows:
4.1202 Solicitation provision and contract clause.
* * * * *
(bb) 52.225-25, Prohibition on Engaging in Sanctioned Activities
Relating to Iran--Certification.
* * * * *
PART 25--FOREIGN ACQUISITION
0
3. Revise section 25.700 to read as follows:
25.700 Scope of subpart.
This subpart implements--
(a) Economic sanctions administered by the Office of Foreign Assets
Control (OFAC) in the Department of the Treasury prohibiting
transactions involving certain countries, entities, and individuals;
(b) The Sudan Accountability and Divestment Act of 2007 (Pub. L.
110-174);
(c) The Iran Sanctions Act of 1996 (Iran Sanctions Act) (Pub. L.
104-172; 50 U.S.C. 1701 note), including amendments by the Iran Freedom
Support Act (Pub. L. 109-293) and section 102 of the Comprehensive Iran
Sanctions, Accountability, and Divestment Act of 2010 (Pub. L. 111-
195); and
(d) Section 106 of the Comprehensive Iran Sanctions,
Accountability, and Divestment Act of 2010 (22 U.S.C. 8515).
0
4. Amend section 25.701 by revising the section heading to read as
follows:
25.701 Restrictions administered by the Department of the Treasury on
acquisitions of supplies or services from prohibited sources.
* * * * *
0
5. Add sections 25.703 through 25.703-3 to read as follows:
25.703 Prohibition on contracting with entities that engage in certain
activities relating to Iran.
25.703-1 Definition.
Person--
(1) Means--
(i) A natural person;
(ii) A corporation, business association, partnership, society,
trust, financial institution, insurer, underwriter, guarantor, and any
other business organization, any other nongovernmental entity,
organization, or group, and any governmental entity operating as a
business enterprise; and
(iii) Any successor to any entity described in paragraph (1)(ii) of
this definition; and
(2) Does not include a government or governmental entity that is
not operating as a business enterprise.
25.703-2 Iran Sanctions Act.
(a) Certification.
(1) As required by the Iran Sanctions Act, unless an exception
applies or a waiver is granted in accordance with paragraph (c) or (d)
of this subsection, each offeror must certify that the offeror, and any
person owned or controlled by the offeror, does not engage in any
activity for which sanctions may be imposed under section 5 of the Iran
Sanctions Act.
[[Page 60257]]
(2) In general, the following activities, which are described in
detail in section 5 of the Iran Sanctions Act, are activities for which
sanctions may be imposed on or after July 1, 2010--
(i) Knowingly making an investment of $20,000,000 or more, or a
combination of investments of $5,000,000 or more that equal or exceed
$20,000,000 in a 12-month period, that directly and significantly
contribute to the enhancement of Iran's ability to develop petroleum
resources.
(ii) Knowingly selling, leasing or providing to Iran goods,
services, technology, information, or support with a fair market value
of $1,000,000 or more, or during a 12-month period with an aggregate
fair market value of $5,000,000 or more, that could directly and
significantly facilitate the maintenance or expansion of Iran's
domestic production of refined petroleum products, including any direct
and significant assistance with respect to the construction,
modernization, or repair of petroleum refineries.
(iii) Knowingly selling or providing to Iran refined petroleum
products with a fair market value of $1,000,000 or more, or during a
12-month period with an aggregate fair market value of $5,000,000 or
more.
(iv) Knowingly selling, leasing, or providing to Iran goods,
services, technology, information, or support with a fair market value
of $1,000,000 or more, or during a 12-month period with an aggregate
fair market value of $5,000,000 or more, that could directly and
significantly contribute to the enhancement of Iran's ability to import
refined petroleum products, including--
(A) Certain insurance or reinsurance, underwriting, financing, or
brokering for the sale, lease, or provision of such items, or
(B) Providing ships or shipping services to deliver refined
petroleum products to Iran.
(v) Exporting, transferring, or otherwise providing to Iran any
goods, services, technology or other items knowing that it would
contribute materially to the ability of Iran to acquire or develop
chemical, biological, or nuclear weapons or related technologies, or
acquire or develop destabilizing numbers and types of advanced
conventional weapons.
(b) Remedies. Upon the determination of a false certification under
paragraph (a) of this subsection, the agency shall take one or more of
the following actions:
(1) The contracting officer may terminate the contract.
(2) The suspending official may suspend the contractor in
accordance with the procedures in subpart 9.4.
(3) The debarring official may debar the contractor for a period
not to exceed 3 years in accordance with the procedures in subpart 9.4.
(c) Exception for trade agreements. The certification requirements
of paragraph (a) of this subsection do not apply with respect to the
procurement of eligible products, as defined in section 308(4) of the
Trade Agreements Act of 1974 (19 U.S.C. 2518(4)), of any foreign
country or instrumentality designated under section 301(b) of that Act
(19 U.S.C. 2511(b)) (see subpart 25.4).
(d) Waiver. (1) The President may waive the requirement of
subsection 25.703-2(a) on a case-by-case basis if the President
determines and certifies in writing to the appropriate congressional
committees (Committee on Armed Services of the Senate, Committee on
Finance of the Senate, Committee on Banking, Housing, and Urban Affairs
of the Senate, Committee on Foreign Relations of the Senate, Committee
on Armed Services of the House of Representatives, Committee on Ways
and Means of the House of Representatives, Committee on Financial
Services of the House of Representatives, and Committee on Foreign
Affairs of the House of Representatives) that it is in the national
interest to do so.
(2) An agency or contractor seeking a waiver of the requirement
shall submit the request through the Office of Federal Procurement
Policy (OFPP), allowing sufficient time for review and approval. Upon
receipt of the waiver request, OFPP shall consult with the President's
National Security Council, the Office of Terrorism and Financial
Intelligence in the Department of the Treasury, and the Office of
Terrorism Finance and Economic Sanctions Policy, Bureau of Economic,
Energy, and Business Affairs in the State Department, allowing
sufficient time for review and approval.
(3) In general, all waiver requests should include the following
information:
(i) Agency name, complete mailing address, and point of contact
name, telephone number, and e-mail address.
(ii) Offeror's name, complete mailing address, and point of contact
name, telephone number, and e-mail address.
(iii) Description/nature of product or service.
(iv) The total cost and length of the contract.
(v) Justification, with market research demonstrating that no other
offeror can provide the product or service and stating why the product
or service must be procured from this offeror, as well as why it is in
the national interest for the President to waive the prohibition on
contracting with this offeror that conducts activities for which
sanctions may be imposed under section 5 of the Iran Sanctions Act of
1996.
(vi) Documentation regarding the offeror's past performance and
integrity (see the Past Performance Information Retrieval System
(including the Federal Awardee Performance Information and Integrity
System at https://www.ppirs.gov) and any other relevant information).
(vii) Information regarding the offeror's relationship or
connection with other firms that conduct activities for which sanctions
may be imposed under section 5 of the Iran Sanctions Act of 1996.
(viii) The activities in which the offeror is engaged for which
sanctions may be imposed under section 5 of the Iran Sanctions Act of
1996.
25.703-3 Comprehensive Iran Sanctions, Accountability, and Divestment
Act of 2010, section 106.
The head of an executive agency may not enter into or extend a
contract for the procurement of goods or services with a person that
exports certain sensitive technology to Iran, as determined by the
President and listed on the Excluded Parties List System at https://www.epls.gov/.
0
6. Amend section 25.1103 by adding paragraph (e) to read as follows:
25.1103 Other provisions and clauses.
* * * * *
(e) The contracting officer shall include in each solicitation for
the acquisition of products or services the provision at 52.225-25,
Prohibition on Engaging in Sanctioned Activities Relating to Iran--
Certification.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
7. Amend section 52.204-8 by--
0
a. Revising the date of the clause;
0
b. Adding a sentence to the end of paragraph (c)(1)(xviii); and
0
c. Redesignating paragraph (c)(1)(xix) as paragraph (c)(1)(xx), and
adding a new paragraph (c)(1)(xix).
The revised and added text reads as follows:
52.204-8 Annual Representations and Certifications.
* * * * *
ANNUAL REPRESENTATIONS AND CERTIFICATIONS (SEP 2010)
* * * * *
[[Page 60258]]
(c)(1) * * *
(xviii) * * * This provision applies to all solicitations.
(xix) 52.225-25, Prohibition on Engaging in Sanctioned
Activities Relating to Iran--Certification. This provision applies
to all solicitations.
* * * * *
0
8. Amend section 52.212-3 by--
0
a. Revising the date of the clause;
0
b. Removing from the introductory text ``through (m) of'' and adding
``through (o) of'' in its place;
0
c. Removing from the first undesignated paragraph of (b)(2) ``through
(n) of'' and adding ``through (o) of'' in its place; and
0
d. Adding paragraph (o).
The revised and added text reads as follows:
52.212-3 Offeror Representations and Certifications--Commercial Items.
* * * * *
OFFEROR REPRESENTATIONS AND CERTIFICATIONS--COMMERCIAL ITEMS (SEP 2010)
* * * * *
(o) Sanctioned activities relating to Iran. (1) Unless a waiver
is granted or an exception applies as provided in paragraph (o)(2)
of this provision, by submission of its offer, the offeror certifies
that the offeror, or any person owned or controlled by the offeror,
does not engage in any activities for which sanctions may be imposed
under section 5 of the Iran Sanctions Act of 1996.
(2) The certification requirement of paragraph (o)(1) of this
provision does not apply if--
(i) This solicitation includes a trade agreements certification
(e.g., 52.212-3(g) or a comparable agency provision); and
(ii) The offeror has certified that all the offered products to
be supplied are designated country end products.
* * * * *
0
9. Add section 52.225-25 to read as follows:
52.225-25 Prohibition on Engaging in Sanctioned Activities Relating to
Iran--Certification.
As prescribed at 25.1103(e), insert the following provision:
PROHIBITION ON ENGAGING IN SANCTIONED ACTIVITIES RELATING TO IRAN--
CERTIFICATION (SEP 2010)
(a) Definition.
Person--
(1) Means--
(i) A natural person;
(ii) A corporation, business association, partnership, society,
trust, financial institution, insurer, underwriter, guarantor, and
any other business organization, any other nongovernmental entity,
organization, or group, and any governmental entity operating as a
business enterprise; and
(iii) Any successor to any entity described in paragraph (1)(ii)
of this definition; and
(2) Does not include a government or governmental entity that is
not operating as a business enterprise.
(b) Certification. Except as provided in paragraph (c) of this
provision or if a waiver has been granted in accordance with FAR
25.703-2(d), by submission of its offer, the offeror certifies that
the offeror, or any person owned or controlled by the offeror, does
not engage in any activities for which sanctions may be imposed
under section 5 of the Iran Sanctions Act of 1996. These sanctioned
activities are in the areas of development of the petroleum
resources of Iran, production of refined petroleum products in Iran,
sale and provision of refined petroleum products to Iran, and
contributing to Iran's ability to acquire or develop certain
weapons.
(c) Exception for trade agreements. The certification
requirement of paragraph (b) of this provision does not apply if--
(1) This solicitation includes a trade agreements certification
(e.g., 52.225-4, 52.225-11 or comparable agency provision); and
(2) The offeror has certified that all the offered products to
be supplied are designated country end products or designated
country construction material.
(End of provision)
[FR Doc. 2010-24165 Filed 9-28-10; 8:45 am]
BILLING CODE 6820-EP-P
