Federal Acquisition Regulation; Uniform Suspension and Debarment Requirement, 77739-77741 [2010-30565]
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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations
2010)’’ in its place; revising the date of
Alternate II; and removing from
Alternate II, paragraph (e)(1)(ii)(C)
‘‘(MAY 2004)’’ and adding ‘‘(DEC 2010)’’
in its place.
The revised text reads as follows:
52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
*
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*
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*
meets the SDB eligibility criteria of 13 CFR
124.1002.
DEPARTMENT OF DEFENSE
*
GENERAL SERVICES
ADMINISTRATION
*
*
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*
8. Amend section 52.219–25 by
revising the date of the clause; revising
the second sentence of paragraph (a);
redesignating paragraph (b) as paragraph
(c); and adding a new paragraph (b) to
read as follows:
■
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items
(DEC 2010)
52.219–25 Small Disadvantaged Business
Participation Program—Disadvantaged
Status and Reporting.
*
Small Disadvantaged Business
Participation Program—Disadvantaged
Status and Reporting (DEC 2010)
*
*
*
*
*
Alternate II (DEC 2010). * * *
*
*
*
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*
■ 6. Amend section 52.213–4 by
revising the date of the clause, and
paragraph (a)(2)(vii) 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) (DEC 2010)
(a) * * *
(2) * * *
(vii) 52.244–6, Subcontracts for
Commercial Items (DEC 2010).
*
*
*
*
*
7. Amend section 52.219–8 by—
a. Revising the date of the clause; and
b. In paragraph (c), in the definition
‘‘Small disadvantaged business
concern’’, by redesignating paragraphs
(1) through (4) as paragraphs (1)(i)
through (iv), respectively, and revising
the newly redesignated paragraph
(1)(iv); and adding paragraph (2).
The revised and added text reads as
follows:
■
■
■
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*
*
*
(a) * * * The Contractor shall obtain
representations of small disadvantaged status
from joint venture partners, teaming
arrangement members, and subcontractors
(see exception in paragraph (b) of this
section) through use of a provision
substantially the same as paragraph (b)(1)(i)
of the provision at FAR 52.219–22, Small
Disadvantaged Business Status. * * *
(b) For subcontractors that are not certified
as a small disadvantaged business by the
Small Business Administration, the
Contractor shall accept the subcontractor’s
written self-representation as a small
disadvantaged business, unless the
Contractor has reason to question the selfrepresentation.
*
*
*
*
*
9. Amend section 52.244–6 by
revising the date of the clause; and
removing from paragraph (c)(1)(iii)
‘‘(MAY 2004)’’ and adding ‘‘(DEC 2010)’’
in its place.
The revised text reads as follows:
■
52.244–6
Items.
Subcontracts for Commercial
52.219–8 Utilization of Small Business
Concerns.
*
*
Subcontracts for Commercial Items
(DEC 2010)
*
*
*
*
Utilization of Small Business Concerns
(DEC 2010)
*
*
*
*
*
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[FR Doc. 2010–30563 Filed 12–10–10; 8:45 am]
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BILLING CODE 6820–EP–P
(c) * * *
Small disadvantaged business concern
* * *
(1)(i) * * *
(iv) It is identified, on the date of its
representation, as a certified small
disadvantaged business in the CCR Dynamic
Small Business Search database maintained
by the Small Business Administration, or
(2) It represents in writing that it qualifies
as a small disadvantaged business (SDB) for
any Federal subcontracting program, and
believes in good faith that it is owned and
controlled by one or more socially and
economically disadvantaged individuals and
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NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 9 and 52
[FAC 2005–47; FAR Case 2009–036; Item
V; Docket 2010–0109, Sequence 1]
RIN 9000–AL75
Federal Acquisition Regulation;
Uniform Suspension and Debarment
Requirement
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 (the
Councils) are issuing an interim rule
amending the Federal Acquisition
Regulation (FAR) to implement section
815 of the National Defense
Authorization Act for Fiscal Year 2010.
Section 815 extends the flowdown of
the restriction on subcontracting to
lower tier subcontractors that have been
suspended or debarred, with some
exceptions for contracts for the
acquisition of commercial items and
commercially available off-the-shelf
items.
SUMMARY:
Effective Date: December 13,
2010.
Comment Date: Interested parties
should submit written comments to the
Regulatory Secretariat on or before
February 11, 2011 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments
identified by FAC 2005–47, FAR Case
2009–036, by any of the following
methods:
• Regulations.gov: https://
www.regulations.gov. Submit comments
via the Federal eRulemaking portal by
inputting ‘‘FAR Case 2009–036’’ under
the heading ‘‘Enter Keyword or ID’’ and
selecting ‘‘Search’’. Select the link
‘‘Submit a Comment’’ that corresponds
with ‘‘FAR Case 2009–036’’. Follow the
instructions provided at the ‘‘Submit a
Comment’’ screen. Please include your
name, company name (if any), and ‘‘FAR
Case 2009–036’’ on your attached
document.
• Mail: General Services
Administration, Regulatory Secretariat
(MVCB), ATTN: Hada Flowers, 1275
First Street, NE., Washington, DC 20417.
DATES:
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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations
mstockstill on DSKH9S0YB1PROD with RULES3
Instructions: Please submit comments
only and cite FAC 2005–47, FAR Case
2009–036, 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.
Millisa Gary, Procurement Analyst, at
(202) 501–0699. Please cite FAC 2005–
47, FAR Case 2009–036. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at (202) 501–4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises the FAR to
implement section 815 of the National
Defense Authorization Act for Fiscal
Year 2010 (Pub. L. 111–84). Section 815
amends section 2455(c)(1) of the Federal
Acquisition Streamlining Act of 1994
(31 U.S.C. 6101 note) by amending the
definition of ‘‘procurement activities’’ to
include subcontracts at any tier,
except—
• It does not include subcontracts for
commercially available off-the-shelf
(COTS) items; and
• In the case of commercial items,
such term includes only the first-tier
subcontracts.
This has the effect, except for COTS
items, of expanding the requirement of
2455(a), which states that ‘‘No agency
shall allow a party to participate in any
procurement * * * activity if any
agency has debarred, suspended, or
otherwise excluded * * * that party
from participation in a procurement
* * * activity.’’
Prime contractors will not be
restricted from subcontracts with
suspended or debarred entities for
COTS items; subcontractors for COTS
items will not be required to disclose to
the prime contractor whether the
subcontractor, or any of its principals, is
debarred, suspended, or proposed for
debarment at the time of subcontract
award.
This interim rule amends—
(1) FAR 9.405–2 to exclude COTS
items from the restrictions on
subcontracting with contractors that
have been debarred, suspended, or
proposed for debarment;
(2) The clause at FAR 52.209–6,
Protecting the Government’s Interest
When Subcontracting with Contractors
Debarred, Suspended, or Proposed for
Debarment, by flowing down the
requirements to check whether a
subcontractor is suspended or debarred
beyond the first-tier, with the stated
exceptions for COTS items; and
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16:09 Dec 10, 2010
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(3) The clause at FAR 52.212–5,
Contract Terms and Conditions
Required to Implement Statutes or
Executive Orders—Commercial Items,
because the requirement that
commercial contracts must flow the
requirement down to the first-tier is
now statutory.
This is not a significant regulatory
action and, therefore, was not subject to
review under Section 6(b) of Executive
Order 12866, Regulatory Planning and
Review, dated September 30, 1993. This
rule is not a major rule under 5 U.S.C.
804.
B. Regulatory Flexibility Act
The 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. The rule removes the current
requirements relating to subcontracts for
COTS items, and in the case of
commercial items, the requirement
extends only to the first-tier
subcontracts. This rule will impact
small entities that are awarded a lowertier subcontract for a non-COTS item
that exceeds $30,000, in that these
entities must now disclose to the highertier subcontractor whether they are
suspended, debarred, or proposed for
suspension. Although a substantial
number of small entities may be
impacted by this rule, the impact is not
significant. It will likely only take one
minute to include the required
information with an offer. For the other
impact of the rule, which will require
the higher-tier subcontractor to provide
an explanation if desiring to subcontract
with an entity that has been debarred,
suspended, or proposed for debarment,
the Councils do not expect this
requirement to impact a substantial
number of small entities, because it
would only be in rare circumstances
that a subcontractor would potentially
jeopardize performance or integrity by
knowingly contracting with an entity
that is debarred, suspended or proposed
for debarment. 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
2005–47, FAR Case 2008–036) in
correspondence.
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C. Paperwork Reduction Act
The Paperwork Reduction Act does
apply; however, these changes to the
FAR only impose minimal additional
information collection requirements to
the paperwork burden previously
approved under OMB Control Number
9000–0094. Because the change in
burden hours is so slight, no new
approval by OMB is required.
D. Determination to Issue an Interim
Rule
A determination has been made under
the authority of the Secretary of
Defense, the Administrator of General
Services, and the Administrator of the
National Aeronautics and Space
Administration that urgent and
compelling reasons exist to promulgate
this interim rule without prior
opportunity for public comment. This
action is necessary to implement the
changes resulting from the enactment of
Section 815 of the National Defense
Authorization Act for Fiscal Year 2010
(Pub. L. 111–84), effective October 28,
2009. 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 9 and
52
Government procurement.
Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
Therefore, DoD, GSA, and NASA
amend 48 CFR parts 9 and 52 as set
forth below:
■ 1. The authority citation for 48 CFR
parts 9 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 9—CONTRACTOR
QUALIFICATIONS
2. Amend section 9.405–2 by revising
paragraph (b) introductory text to read
as follows:
■
9.405–2
Restrictions on subcontracting.
*
*
*
*
*
(b) The Government suspends or
debars contractors to protect the
Government’s interests. By operation of
the clause at 52.209–6, Protecting the
Government’s Interests When
Subcontracting with Contractors
Debarred, Suspended or Proposed for
Debarment, contractors shall not enter
into any subcontract in excess of
$30,000, other than a subcontract for a
commercially available off-the-shelf
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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations
item, with a contractor that has been
debarred, suspended, or proposed for
debarment unless there is a compelling
reason to do so. If a contractor intends
to subcontract, other than a subcontract
for a commercially available off-theshelf item, with a party that is debarred,
suspended, or proposed for debarment
as evidenced by the parties’ inclusion in
the EPLS (see 9.404), a corporate officer
or designee of the contractor is required
by operation of the clause at 52.209–6,
Protecting the Government’s Interests
when Subcontracting with Contractors
Debarred, Suspended, or Proposed for
Debarment, to notify the contracting
officer, in writing, before entering into
such subcontract. For contracts for the
acquisition of commercial items, the
notification requirement applies only
for first-tier subcontracts. For all other
contracts, the notification requirement
applies to subcontracts at any tier. The
notice must provide the following:
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
3. Amend section 52.209–6 by—
a. Revising the date of the clause;
b. Redesignating paragraphs (a)
through (c) as paragraphs (b) through
(d), respectively; and adding a new
paragraph (a);
■ c. Revising the newly designated
paragraphs (b), (c), and (d) introductory
text; and
■ d. Adding paragraph (e).
The revised and added text reads as
follows:
■
■
■
52.209–6 Protecting the Government’s
Interest When Subcontracting With
Contractors Debarred, Suspended, or
Proposed for Debarment.
*
*
*
*
*
interests. Other than a subcontract for a
commercially available off-the-shelf item, the
Contractor shall not enter into any
subcontract, in excess of $30,000 with a
Contractor that is debarred, suspended, or
proposed for debarment by any executive
agency unless there is a compelling reason to
do so.
(c) The Contractor shall require each
proposed subcontractor whose subcontract
will exceed $30,000, other than a
subcontractor providing a commercially
available off-the-shelf item, to disclose to the
Contractor, in writing, whether as of the time
of award of the subcontract, the
subcontractor, or its principals, is or is not
debarred, suspended, or proposed for
debarment by the Federal Government.
(d) A corporate officer or a designee of the
Contractor shall notify the Contracting
Officer, in writing, before entering into a
subcontract with a party (other than a
subcontractor providing a commercially
available off-the-shelf item) that is debarred,
suspended, or proposed for debarment (see
FAR 9.404 for information on the Excluded
Parties List System). The notice must include
the following:
52.213–4 Terms and Conditions—
Simplified Acquisitions (Other Than
Commercial Items).
*
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
*
*
*
*
(e) Subcontracts. Unless this is a contract
for the acquisition of commercial items, the
Contractor shall include the requirements of
this clause, including this paragraph (e)
(appropriately modified for the identification
of the parties), in each subcontract that—
(1) Exceeds $30,000 in value; and
(2) Is not a subcontract for commercially
available off-the-shelf items.
4. Amend section 52.212–5 by—
a. Revising the date of the clause; and
■ b. Redesignating paragraphs (b)(6)
through (b)(44) as paragraphs (b)(7)
through (b)(45), respectively; and
adding a new paragraph (b)(6).
The revised and added text reads as
follows:
■
■
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52.212–5 Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items.
(a) Definition. Commercially available offthe-shelf (COTS) item, as used in this
clause—
(1) Means any item of supply (including
construction material) that is—
(i) A commercial item (as defined in
paragraph (1) of the definition in FAR 2.101);
(ii) Sold in substantial quantities in the
commercial marketplace; and
(iii) Offered to the Government, under a
contract or subcontract at any tier, without
modification, in the same form in which it
is sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined
in section 3 of the Shipping Act of 1984 (46
U.S.C. App. 1702), such as agricultural
products and petroleum products.
(b) The Government suspends or debars
Contractors to protect the Government’s
Contract Terms and Conditions
Required To Implement Statutes or
Executive Orders—Commercial Items
(DEC 2010)
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*
*
*
*
*
(b) * * *
(6) 52.209–6, Protecting the Government’s
Interest When Subcontracting with
Contractors Debarred, Suspended, or
Proposed for Debarment (DEC 2010) (31
U.S.C. 6101 note). (Applies to contracts over
$30,000). (Not applicable to subcontracts for
the acquisition of commercially available offthe-shelf items).
*
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5. Amend section 52.213–4 by
revising the date of the clause and
paragraph (b)(2)(i) to read as follows:
■
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Frm 00021
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*
*
Terms and Conditions—Simplified
Acquisitions (Other Than Commercial
Items) (DEC 2010)
(b) * * *
(2) * * *
(i) 52.209–6, Protecting the Government’s
Interest When Subcontracting with
Contractors Debarred, Suspended, or
Proposed for Debarment (DEC 2010) (Applies
to contracts over $30,000). (Not applicable to
subcontracts for the acquisition of
commercially available off-the-shelf items).
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[FR Doc. 2010–30565 Filed 12–10–10; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
48 CFR Parts 15, 31, and 52
[FAC 2005–47; FAR Case 2008–031; Item
VI; Docket 2009–0034, Sequence 2]
RIN 9000–AL27
Federal Acquisition Regulation;
Limitation on Pass-Through Charges
(End of clause)
Protecting the Government’s Interest
When Subcontracting With Contractors
Debarred, Suspended, or Proposed for
Debarment (DEC 2010)
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Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCIES:
The Civilian Agency
Acquisition Council and the Defense
Acquisition Regulations Council
(Councils) have adopted as final, with
changes, the interim rule amending the
Federal Acquisition Regulation (FAR) to
implement section 866 of the Duncan
Hunter National Defense Authorization
Act (NDAA) for Fiscal Year (FY) 2009,
which applies to executive agencies
other than DoD. DoD is subject to
section 852 of the John Warner NDAA
for FY 2007, which is also implemented
in this final rule. Section 866 requires
the Councils to amend the FAR, and
section 852 requires the Secretary of
Defense to prescribe regulations to
minimize excessive pass-through
charges by contractors from
subcontractors, or from tiers of
subcontractors, that add no or negligible
value, and to ensure that neither a
contractor nor a subcontractor receives
indirect costs or profit/fee (i.e., passthrough charges) on work performed by
SUMMARY:
E:\FR\FM\13DER3.SGM
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]]>Agencies
[Federal Register Volume 75, Number 238 (Monday, December 13, 2010)]
[Rules and Regulations]
[Pages 77739-77741]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-30565]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9 and 52
[FAC 2005-47; FAR Case 2009-036; Item V; Docket 2010-0109, Sequence 1]
RIN 9000-AL75
Federal Acquisition Regulation; Uniform Suspension and Debarment
Requirement
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 (the Councils) are issuing an interim
rule amending the Federal Acquisition Regulation (FAR) to implement
section 815 of the National Defense Authorization Act for Fiscal Year
2010. Section 815 extends the flowdown of the restriction on
subcontracting to lower tier subcontractors that have been suspended or
debarred, with some exceptions for contracts for the acquisition of
commercial items and commercially available off-the-shelf items.
DATES: Effective Date: December 13, 2010.
Comment Date: Interested parties should submit written comments to
the Regulatory Secretariat on or before February 11, 2011 to be
considered in the formulation of a final rule.
ADDRESSES: Submit comments identified by FAC 2005-47, FAR Case 2009-
036, by any of the following methods:
Regulations.gov: https://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by inputting ``FAR Case
2009-036'' under the heading ``Enter Keyword or ID'' and selecting
``Search''. Select the link ``Submit a Comment'' that corresponds with
``FAR Case 2009-036''. Follow the instructions provided at the ``Submit
a Comment'' screen. Please include your name, company name (if any),
and ``FAR Case 2009-036'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Hada Flowers, 1275 First Street, NE.,
Washington, DC 20417.
[[Page 77740]]
Instructions: Please submit comments only and cite FAC 2005-47, FAR
Case 2009-036, 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. Millisa Gary, Procurement Analyst, at (202) 501-0699. Please cite
FAC 2005-47, FAR Case 2009-036. For information pertaining to status or
publication schedules, contact the Regulatory Secretariat at (202) 501-
4755.
SUPPLEMENTARY INFORMATION:
A. Background
This interim rule revises the FAR to implement section 815 of the
National Defense Authorization Act for Fiscal Year 2010 (Pub. L. 111-
84). Section 815 amends section 2455(c)(1) of the Federal Acquisition
Streamlining Act of 1994 (31 U.S.C. 6101 note) by amending the
definition of ``procurement activities'' to include subcontracts at any
tier, except--
It does not include subcontracts for commercially
available off-the-shelf (COTS) items; and
In the case of commercial items, such term includes only
the first-tier subcontracts.
This has the effect, except for COTS items, of expanding the
requirement of 2455(a), which states that ``No agency shall allow a
party to participate in any procurement * * * activity if any agency
has debarred, suspended, or otherwise excluded * * * that party from
participation in a procurement * * * activity.''
Prime contractors will not be restricted from subcontracts with
suspended or debarred entities for COTS items; subcontractors for COTS
items will not be required to disclose to the prime contractor whether
the subcontractor, or any of its principals, is debarred, suspended, or
proposed for debarment at the time of subcontract award.
This interim rule amends--
(1) FAR 9.405-2 to exclude COTS items from the restrictions on
subcontracting with contractors that have been debarred, suspended, or
proposed for debarment;
(2) The clause at FAR 52.209-6, Protecting the Government's
Interest When Subcontracting with Contractors Debarred, Suspended, or
Proposed for Debarment, by flowing down the requirements to check
whether a subcontractor is suspended or debarred beyond the first-tier,
with the stated exceptions for COTS items; and
(3) The clause at FAR 52.212-5, Contract Terms and Conditions
Required to Implement Statutes or Executive Orders--Commercial Items,
because the requirement that commercial contracts must flow the
requirement down to the first-tier is now statutory.
This is not a significant regulatory action and, therefore, was not
subject to review under Section 6(b) of Executive Order 12866,
Regulatory Planning and Review, dated September 30, 1993. This rule is
not a major rule under 5 U.S.C. 804.
B. Regulatory Flexibility Act
The 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. The rule removes the current
requirements relating to subcontracts for COTS items, and in the case
of commercial items, the requirement extends only to the first-tier
subcontracts. This rule will impact small entities that are awarded a
lower-tier subcontract for a non-COTS item that exceeds $30,000, in
that these entities must now disclose to the higher-tier subcontractor
whether they are suspended, debarred, or proposed for suspension.
Although a substantial number of small entities may be impacted by this
rule, the impact is not significant. It will likely only take one
minute to include the required information with an offer. For the other
impact of the rule, which will require the higher-tier subcontractor to
provide an explanation if desiring to subcontract with an entity that
has been debarred, suspended, or proposed for debarment, the Councils
do not expect this requirement to impact a substantial number of small
entities, because it would only be in rare circumstances that a
subcontractor would potentially jeopardize performance or integrity by
knowingly contracting with an entity that is debarred, suspended or
proposed for debarment. 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 2005-47, FAR Case
2008-036) in correspondence.
C. Paperwork Reduction Act
The Paperwork Reduction Act does apply; however, these changes to
the FAR only impose minimal additional information collection
requirements to the paperwork burden previously approved under OMB
Control Number 9000-0094. Because the change in burden hours is so
slight, no new approval by OMB is required.
D. Determination to Issue an Interim Rule
A determination has been made under the authority of the Secretary
of Defense, the Administrator of General Services, and the
Administrator of the National Aeronautics and Space Administration that
urgent and compelling reasons exist to promulgate this interim rule
without prior opportunity for public comment. This action is necessary
to implement the changes resulting from the enactment of Section 815 of
the National Defense Authorization Act for Fiscal Year 2010 (Pub. L.
111-84), effective October 28, 2009. 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 9 and 52
Government procurement.
Dated: November 24, 2010.
Millisa Gary,
Acting Director, Acquisition Policy Division.
0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 9 and 52 as set forth
below:
0
1. The authority citation for 48 CFR parts 9 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 9--CONTRACTOR QUALIFICATIONS
0
2. Amend section 9.405-2 by revising paragraph (b) introductory text to
read as follows:
9.405-2 Restrictions on subcontracting.
* * * * *
(b) The Government suspends or debars contractors to protect the
Government's interests. By operation of the clause at 52.209-6,
Protecting the Government's Interests When Subcontracting with
Contractors Debarred, Suspended or Proposed for Debarment, contractors
shall not enter into any subcontract in excess of $30,000, other than a
subcontract for a commercially available off-the-shelf
[[Page 77741]]
item, with a contractor that has been debarred, suspended, or proposed
for debarment unless there is a compelling reason to do so. If a
contractor intends to subcontract, other than a subcontract for a
commercially available off-the-shelf item, with a party that is
debarred, suspended, or proposed for debarment as evidenced by the
parties' inclusion in the EPLS (see 9.404), a corporate officer or
designee of the contractor is required by operation of the clause at
52.209-6, Protecting the Government's Interests when Subcontracting
with Contractors Debarred, Suspended, or Proposed for Debarment, to
notify the contracting officer, in writing, before entering into such
subcontract. For contracts for the acquisition of commercial items, the
notification requirement applies only for first-tier subcontracts. For
all other contracts, the notification requirement applies to
subcontracts at any tier. The notice must provide the following:
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
3. Amend section 52.209-6 by--
0
a. Revising the date of the clause;
0
b. Redesignating paragraphs (a) through (c) as paragraphs (b) through
(d), respectively; and adding a new paragraph (a);
0
c. Revising the newly designated paragraphs (b), (c), and (d)
introductory text; and
0
d. Adding paragraph (e).
The revised and added text reads as follows:
52.209-6 Protecting the Government's Interest When Subcontracting
With Contractors Debarred, Suspended, or Proposed for Debarment.
* * * * *
Protecting the Government's Interest When Subcontracting With
Contractors Debarred, Suspended, or Proposed for Debarment (DEC 2010)
(a) Definition. Commercially available off-the-shelf (COTS)
item, as used in this clause--
(1) Means any item of supply (including construction material)
that is--
(i) A commercial item (as defined in paragraph (1) of the
definition in FAR 2.101);
(ii) Sold in substantial quantities in the commercial
marketplace; and
(iii) Offered to the Government, under a contract or subcontract
at any tier, without modification, in the same form in which it is
sold in the commercial marketplace; and
(2) Does not include bulk cargo, as defined in section 3 of the
Shipping Act of 1984 (46 U.S.C. App. 1702), such as agricultural
products and petroleum products.
(b) The Government suspends or debars Contractors to protect the
Government's interests. Other than a subcontract for a commercially
available off-the-shelf item, the Contractor shall not enter into
any subcontract, in excess of $30,000 with a Contractor that is
debarred, suspended, or proposed for debarment by any executive
agency unless there is a compelling reason to do so.
(c) The Contractor shall require each proposed subcontractor
whose subcontract will exceed $30,000, other than a subcontractor
providing a commercially available off-the-shelf item, to disclose
to the Contractor, in writing, whether as of the time of award of
the subcontract, the subcontractor, or its principals, is or is not
debarred, suspended, or proposed for debarment by the Federal
Government.
(d) A corporate officer or a designee of the Contractor shall
notify the Contracting Officer, in writing, before entering into a
subcontract with a party (other than a subcontractor providing a
commercially available off-the-shelf item) that is debarred,
suspended, or proposed for debarment (see FAR 9.404 for information
on the Excluded Parties List System). The notice must include the
following:
* * * * *
(e) Subcontracts. Unless this is a contract for the acquisition
of commercial items, the Contractor shall include the requirements
of this clause, including this paragraph (e) (appropriately modified
for the identification of the parties), in each subcontract that--
(1) Exceeds $30,000 in value; and
(2) Is not a subcontract for commercially available off-the-
shelf items.
(End of clause)
0
4. Amend section 52.212-5 by--
0
a. Revising the date of the clause; and
0
b. Redesignating paragraphs (b)(6) through (b)(44) as paragraphs (b)(7)
through (b)(45), respectively; and adding a new paragraph (b)(6).
The revised and added 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 (DEC 2010)
(b) * * *
(6) 52.209-6, Protecting the Government's Interest When
Subcontracting with Contractors Debarred, Suspended, or Proposed for
Debarment (DEC 2010) (31 U.S.C. 6101 note). (Applies to contracts
over $30,000). (Not applicable to subcontracts for the acquisition
of commercially available off-the-shelf items).
* * * * *
0
5. Amend section 52.213-4 by revising the date of the clause and
paragraph (b)(2)(i) 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) (DEC 2010)
(b) * * *
(2) * * *
(i) 52.209-6, Protecting the Government's Interest When
Subcontracting with Contractors Debarred, Suspended, or Proposed for
Debarment (DEC 2010) (Applies to contracts over $30,000). (Not
applicable to subcontracts for the acquisition of commercially
available off-the-shelf items).
* * * * *
[FR Doc. 2010-30565 Filed 12-10-10; 8:45 am]
BILLING CODE 6820-EP-P
