Federal Acquisition Regulation; Submission for OMB Review; Anti-Kickback Procedures, 45198-45200 [2013-17939]

Agencies

• DEPARTMENT OF DEFENSE
• General Services Administration
• National Aeronautics and Space Administration

[Federal Register Volume 78, Number 144 (Friday, July 26, 2013)]
[Notices]
[Pages 45198-45200]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-17939]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

[Docket 2012-0076; Sequence 47; OMB Control No. 9000-0091]


Federal Acquisition Regulation; Submission for OMB Review; Anti-
Kickback Procedures

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

ACTION: Notice of request for public comments regarding an extension of 
an existing OMB clearance.

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SUMMARY: Under the provisions of the Paperwork Reduction Act, the 
Regulatory Secretariat will be submitting to the Office of Management 
and Budget (OMB) a request to review and approve an extension of a 
previously approved information collection requirement concerning anti-
kickback procedures. A notice was published in the Federal Register at 
77 FR 75164, on December 19, 2012. One respondent submitted comments.

DATES: Submit comments on or before August 26, 2013.

ADDRESSES: Submit comments identified by Information Collection 9000-
0091, Anti-Kickback Procedures, by any of the following methods:
     Regulations.gov: https://www.regulations.gov.
    Submit comments via the Federal eRulemaking portal by searching the 
OMB control number. Select the link ``Submit a Comment'' that 
corresponds with ``Information Collection 9000-0091, Anti-Kickback 
Procedures''. Follow the instructions provided at the ``Submit a 
Comment'' screen. Please include your name, company name (if any), and 
``Information Collection 9000-0091, Anti-Kickback Procedures'' on your 
attached document.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), 1800 F Street Street NW., Washington, DC 20405-
0001. ATTN: Hada Flowers/IC 9000-0091, Anti-Kickback Procedures.
    Instructions: Please submit comments only and cite Information 
Collection 9000-0091, Anti-Kickback Procedures, in all correspondence 
related to this collection. All comments received will be posted 
without change to https://www.regulations.gov, including any personal 
and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement 
Analyst, Office of Governmentwide Acquisition Policy, GSA, (202) 219-
0202 or email Cecelia.davis@gsa.gov.

SUPPLEMENTARY INFORMATION: 

A. Purpose

    Federal Acquisition Regulation (FAR) 52.203-7, Anti-Kickback 
Procedures, requires that all contractors have in place and follow 
reasonable procedures designed to prevent and detect in its own 
operations and direct business relationships, violations of 41 U.S.C. 
chapter 87, Kickbacks. Whenever prime contractors or subcontractors 
have reasonable grounds to believe that a violation of the statute may 
have occurred, they are required to report the possible violation in 
writing to the contracting agency inspector general, the head of the 
contracting agency if an agency does not have an inspector general, or 
the Department of Justice. The information is used to determine if any 
violations of the statute have occurred.
    There is no Governmentwide data collection process or system which 
identifies the number of alleged violations of 41 U.S.C. chapter 87, 
Kickbacks that are reported annually to agency inspectors general, the 
heads of the contracting agency if an agency does not have an inspector 
general, or the Department of Justice.

B. Discussion and Analysis

    The analysis of the public comment is summarized as follows:
    Comment: The respondent commented that the extension of the 
information collection would violate the fundamental purposes of the 
Paperwork Reduction Act because of the burden it puts on the entity 
submitting the information and the agency collecting the information.
    Response: In accordance with the Paperwork Reduction Act (PRA), 
agencies can request OMB approval of an existing information 
collection. The PRA requires that agencies use the Federal Register 
notice and comment process, to extend OMB's approval, at least every 
three years. This extension, to a previously approved information 
collection, pertains to the requirements at FAR 52.203-7((c)(2), which 
requires contractors and subcontractors to promptly report possible 
violations of the Kickbacks statute to the Government. There are no 
aspects of this requirement that can be reduced or eliminated without 
negatively

[[Page 45199]]

impacting the ability of the Government to assess contractor 
responsibility, investigate and address potential criminal actions, and 
protect the Government's interests in maintaining the integrity of the 
acquisition process. Not granting this extension would consequently 
eliminate a FAR clause that provides a benefit to the public and the 
agency collecting the information.
    Comment: The respondent commented that the agency did not 
accurately estimate the public burden, stating that the agency's 
methodology for calculating the burden is insufficient and inadequate 
and does not reflect the total burden. The respondent stated that--
     The actual number of respondents subject to the 
information collection is likely 25 to 50 times greater than the 
estimate of 100 respondents (i.e., 2500 to 5000);
     There is no basis provided for the estimate of 1 response 
per respondent; and
     The estimate of 1 hour per response is unreasonably low 
and unsubstantiated. The estimated burden hours should be modified in 
this instance for the same reasons that they were modified upward in 
FAR Case 2007-006, Contractor Business Ethics Compliance Program and 
Disclosure Requirements.
    Response: It is important to distinguish between the total burden 
of compliance with a particular provision or clause, and the portion of 
that burden that constitutes an information collection requirement. 
This analysis addresses the latter. In this particular case, the 
information collection requirement is in paragraph (c)(2) of 52.203-7, 
which requires a report of possible violations to the Government. 
Establishing procedures within an organization to prevent and detect 
anti-kickback violations or cooperating with a Federal investigation do 
not constitute information collection requirements.
    Therefore, the only contractors and subcontractors included in the 
estimate of respondents to the information collection requirement are 
those contractors or subcontractors that are reporting a suspected 
violation of the Kickback statute in a given year. Based on discussions 
with subject matter experts with experience in an Office of the 
Inspector General, the estimate of 100 responses per year more than 
likely exceeds the actual responses. It is also unlikely, that the same 
respondent would be reporting instances of kickback violations more 
than once in a year. The estimated number of respondents and responses 
remain as previously approved.
    With regard to the estimated information collection burden hours, 
as stated in the Federal Register notice for FAR Case 2007-006, burden 
includes estimated hours only for those actions which a company would 
not undertake in the normal course of business. In the normal course of 
business, a company that is concerned about ethical behavior will take 
reasonable steps to determine the credibility of allegations of 
misconduct within the firm. It is left to the discretion of the company 
what these reasonable steps may entail. The Government has added the 
requirement to report in writing to the Government when the Contractor 
has reasonable grounds to believe that a violation of the Kickback 
statute has occurred, which would not necessarily otherwise occur. The 
burden is prepared taking into consideration the necessary criteria in 
OMB guidance for estimating the paperwork burden put on the entity 
submitting the information. For example, consideration is given to an 
entity reviewing instructions; using technology to collect, process, 
and disclose information; adjusting existing practices to comply with 
requirements; searching data sources; completing and reviewing the 
response; and transmitting or disclosing information. The estimated 
burden hours for a collection are based on an average between the hours 
that a simple disclosure by a very small business might require and the 
much higher numbers that might be required for a very complex 
disclosure by a major corporation. Careful consideration went into 
assessing the burden for this collection. However, upon further 
discussion with subject matter experts, we have revised upward the 
estimated hours to 20 hours per response, considering particularly the 
hours that would be required for review within the company, prior to 
release to the Government. At any point, members of the public may 
submit comments for further consideration, and are encouraged to 
provide data to support their request for an adjustment.
    Comment: The respondent stated that the agency and OMB should 
assess the need to extend this information collection requirement in 
the context of assessing the total information collection burden. The 
respondent further commented that the ``collective burden of 
compliance'' required of the Government acquisition community annually 
totals over 30 million hours. According to the respondent, the 
collective burden greatly exceeds the agency's estimates and outweighs 
any potential utility of the extension.
    Response: The criteria for extension of an information collection 
requirement must be based primarily on the need and use for the 
required information. It is essential for contractors to report 
violations of the Kickback statute, regardless of whether there are 100 
responses per year or 1000 responses per year. If the agencies have 
determined that the information is essential to comply with statute or 
to protect the interests of the Government, then the extension should 
be approved. If there are questions concerning the validity of the 
estimated burden hours, those can be reviewed and refined as necessary.
    We cannot effectively address the broad allegations with regard to 
the accuracy and utility of the entire collective burden imposed on all 
Federal acquisitions. We can only effectively address each individual 
information collection requirement that is under consideration for OMB 
approval. As stated, the respondent has not pointed out any aspect of 
the Anti-Kickback clause that could be amended to reduce the 
information collection burden imposed by that clause. Further, the 
respondent specifically does not challenge the propriety of the 
underlying information collection requirement. We constantly review 
information collection requirements imposed by FAR regulations for ways 
to reduce the burdens and still achieve the objectives of the 
regulations, whether based on policy or statute. We would welcome any 
specific recommendations as to information collection requirements 
(other than those required by statute) in which the burden is perceived 
to outweigh the benefit, with specific recommendations as to how the 
burden should be reduced.

C. Annual Reporting Burden

    Respondents: 100.
    Responses per Respondent: 1.
    Annual Responses: 100.
    Hours Per Response: 20.
    Total Burden Hours: 2,000.
    Obtaining Copies of Proposals: Requesters may obtain a copy of the 
information collection documents from the General Services 
Administration, Regulatory Secretariat (MVCB), 1800 F Street Street, 
NW., Washington, DC 20405-0001, telephone (202) 501-4755. Please cite 
OMB Control No. 9000-0091, Anti-Kickback Procedures, in all 
correspondence.


[[Page 45200]]


    Dated: July 18, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2013-17939 Filed 7-25-13; 8:45 am]
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