Federal Acquisition Regulation; Federal Acquisition Circular 2005-70; Small Entity Compliance Guide, 60174-60175 [2013-23701]
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60174
Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations
Executive Order 12866, Regulatory
Planning and Review, dated September
30, 1993. This rule is not a major rule
under 5 U.S.C. 804.
III. Regulatory Flexibility Act
DoD, GSA, and NASA do not expect
this 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 most contracts awarded
to small entities are awarded on a
competitive fixed-price basis, and do
not require application of the cost
principles contained in this rule.
However, an Initial Regulatory
Flexibility Analysis (IRFA) has been
prepared and is summarized as follows:
tkelley on DSK3SPTVN1PROD with RULES4
The objective of this rule is to address the
allowability of legal costs incurred by a
contractor in connection with a proceeding
commenced by an employee submitting a
complaint under 10 U.S.C. 2409 or 41 U.S.C.
4712. The statutory authority is 10 U.S.C.
2324(k) and 41 U.S.C. 4310.
Most contracts awarded on a fixed-price
competitive basis do not require application
of the cost principles. Most contracts valued
at or below the simplified acquisition
threshold are awarded on a fixed price
competitive basis. Requiring submission of
certified cost or pricing data for acquisitions
that do not exceed the simplified acquisition
threshold is prohibited (FAR 15.403–4(a)(2)).
According to Federal Procurement Data
System (FPDS) data for FY 2012, there were
73,014 Federal new contract awards over the
simplified acquisition threshold in FY 2012.
Of those contracts, only 11,279 awards were
to small businesses on other than a
competitive fixed-price basis. Within that
number of awards, this rule would only affect
a contractor if a contractor employee
commenced a proceeding by submitting a
complaint under 10 U.S.C. 2409 or 41 U.S.C.
4712, and if that proceeding resulted in
imposition of a monetary penalty or an order
to take corrective action under 10 U.S.C.
2409 or 41 U.S.C. 4712. We do not have data
on the percentage of contracts that involve
submission of a whistleblower complaint and
result in monetary penalty or an order to take
corrective action.
There are no reporting, recordkeeping, or
other compliance requirements in this rule.
The rule does not duplicate, overlap, or
conflict with any other Federal rules. DoD,
GSA, and NASA were unable to identify any
alternatives to the rule which would reduce
the impact on small entities and still meet
the requirements of the statute.
The Regulatory Secretariat has
submitted a copy of the IRFA to the
Chief Counsel for Advocacy of the Small
Business Administration. A copy of the
IRFA may be obtained from the
Regulatory Secretariat. DoD, GSA, and
NASA invite comments from small
business concerns and other interested
parties on the expected impact of this
rule on small entities.
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DoD, GSA, and NASA will also
consider comments from small entities
concerning the existing regulations in
subparts 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 2005–70, FAR Case 2013–017) in
correspondence.
IV. Paperwork Reduction Act
The interim rule does not contain any
information collection requirements that
require the approval of the Office of
Management and Budget under the
Paperwork Reduction Act (44 U.S.C.
chapter 35).
V. 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. By
operation of law, the new statute for the
whistleblower protection pilot program
became effective on July 1, 2013, i.e.,
Congress included language in section
828 paragraph (b) specifically
addressing the effective date of 41
U.S.C. 4712. Section 828 paragraph (d),
which is implemented through this
rulemaking, revised 41 U.S.C. 4310,
effective upon enactment. 41 U.S.C.
4310 addresses the contractor’s legal
fees arising from an employee’s
complaint of reprisal and makes these
fees expressly unallowable costs when
there is contractor culpability. The most
effective and efficient way to ensure
awareness and compliance by agencies
and their contractors with section 828
paragraph (d) is through the issuance of
an interim rule. This regulation requires
nothing beyond that which is set forth
clearly in the statute. However,
pursuant to 41 U.S.C. 1707 and FAR
1.501–3(b), DoD, GSA, and NASA will
consider public comments received in
response to this interim rule in the
formation of the final rule.
List of Subjects in 48 CFR Part 31
Government procurement.
Dated: September 24, 2013.
William Clark,
Acting Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
amend 48 CFR part 31 as set forth
below:
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Fmt 4701
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PART 31—CONTRACT COST
PRINCIPLES AND PROCEDURES
1. The authority citation for 48 CFR
part 31 continues to read as follows:
■
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
2. Amend section 31.205–47 by
revising the introductory text of
paragraph (b), and paragraph (b)(2) to
read as follows:
■
31.205–47 Costs related to legal and other
proceedings.
*
*
*
*
*
(b) In accordance with 41 U.S.C. 4310
and 10 U.S.C. 2324(k), costs incurred in
connection with any proceeding brought
by a Federal, State, local, or foreign
government, or by a contractor or
subcontractor employee submitting a
whistleblower complaint of reprisal in
accordance with 41 U.S.C. 4712 or 10
U.S.C. 2409, for violation of, or a failure
to comply with, law or regulation by the
contractor (including its agents or
employees), or costs incurred in
connection with any proceeding brought
by a third party in the name of the
United States under the False Claims
Act, 31 U.S.C. 3730, are unallowable if
the result is—
*
*
*
*
*
(2) In a civil or administrative
proceeding, either a finding of
contractor liability where the
proceeding involves an allegation of
fraud or similar misconduct; or
imposition of a monetary penalty, or an
order issued by the agency head to the
contractor or subcontractor to take
corrective action under 41 U.S.C. 4712
or 10 U.S.C. 2409, where the proceeding
does not involve an allegation of fraud
or similar misconduct;
*
*
*
*
*
[FR Doc. 2013–23702 Filed 9–27–13; 8:45 am]
BILLING CODE 6820–EP–P
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2013–0078, Sequence 6]
Federal Acquisition Regulation;
Federal Acquisition Circular 2005–70;
Small Entity Compliance Guide
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
AGENCY:
E:\FR\FM\30SER4.SGM
30SER4
Federal Register / Vol. 78, No. 189 / Monday, September 30, 2013 / Rules and Regulations
ACTION:
Small Entity Compliance Guide.
This document is issued
under the joint authority of DOD, GSA,
and NASA. This Small Entity
Compliance Guide has been prepared in
accordance with section 212 of the
Small Business Regulatory Enforcement
Fairness Act of 1996. It consists of a
summary of the rules appearing in
Federal Acquisition Circular (FAC)
SUMMARY:
2005–70, which amends the Federal
Acquisition Regulation (FAR). An
asterisk (*) next to a rule indicates that
a regulatory flexibility analysis has been
prepared. Interested parties may obtain
further information regarding these
rules by referring to FAC 2005–70,
which precedes this document. These
documents are also available via the
Internet at https://www.regulations.gov.
DATES:
60175
September 30, 2013.
For
clarification of content, contact the
analyst whose name appears in the table
below. Please cite FAC 2005–70 and the
FAR case number. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat at 202–501–4755.
FOR FURTHER INFORMATION CONTACT:
RULE LISTED IN FAC 2005–70
Item
Subject
I * .........
II * ........
Pilot Program for Enhancement of Contractor Employee Whistleblower Protections (Interim) ..............
Allowability of Legal Costs for Whistleblower Proceedings (Interim) .......................................................
SUPPLEMENTARY INFORMATION:
Summaries for each FAR rule follow.
For the actual revisions and/or
amendments made by these FAR cases,
refer to the specific item numbers and
subjects set forth in the documents
following these item summaries. FAC
2005–70 amends the FAR as specified
below:
Item I—Pilot Program for Enhancement
of Contractor Employee Whistleblower
Protections (FAR Case 2013–015)
tkelley on DSK3SPTVN1PROD with RULES4
This interim rule amends the FAR to
implement a four-year pilot program to
enhance the existing whistleblower
protections for contractor employees at
subpart 3.9. In accordance with FAR
1.108(d)(3), contracting officers are
encouraged to include the changes in
these rules in major modifications to
contracts and orders awarded prior to
the effective date of this interim rule.
The pilot program is mandated by
section 828, entitled ‘‘Pilot Program for
Enhancement of Contractor Employee
Whistleblower Protections,’’ of the
National Defense Authorization Act
(NDAA) for Fiscal Year (FY) 2013 (Pub.
L. 112–239, enacted January 2, 2013).
This rule implements section 828 by
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19:34 Sep 27, 2013
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FAR Case
2013–015
2013–017
Analyst
Corrigan.
Chambers.
amending FAR 3.900, Scope of subpart,
to make FAR 3.901 through 3.906
inapplicable to DoD, NASA, and the
Coast Guard and to prohibit the use of
these sections for new awards by all
other agencies subject to the FAR (title
41 agencies) through January 1, 2017.
This rule creates a new FAR section
3.908 to be used by title 41 agencies
through January 1, 2017. Other
exceptions: FAR 3.907, which addresses
whistleblower protections under the
American Recovery and Reinvestment
Act of 2009, is unaffected by this rule.
This rule does not provide any right not
otherwise provided by law to disclose
classified information, nor does it apply
to any element of the intelligence
community, as defined in section 3(4) of
the National Security Act of 1947 (50
U.S.C. 401(a)(4)). In addition, the
interim rule applies to actions over the
simplified acquisition threshold.
(Pub. L. 112–239). There are two new
whistleblower programs for contractor
and subcontractor employees, at 10
U.S.C. 2409 and 41 U.S.C. 4712. The
latter program is a pilot program, being
addressed in FAR Case 2013–015,
amending FAR subpart 3.9. The cost
principle addresses the allowability of
legal costs incurred by a contractor or
subcontractor in connection with a
whistleblower protection proceeding
commenced by a contractor or
subcontractor employee submitting a
complaint of reprisal under the
applicable whistleblower statute.
Because most contracts awarded to
small businesses use simplified
acquisition procedures or are awarded
on a competitive, fixed-price basis, thus
limiting their exposure to the cost
principles, the impact of this interim
rule on small businesses will be
minimal.
Item II—Allowability of Legal Costs for
Whistleblower Proceedings (FAR Case
2013–017)
Dated: September 24, 2013.
William Clark,
Acting Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
This interim rule amends the FAR by
revising the cost principle at FAR
31.205–47 to implement sections 827(g)
and 828(d) of the NDAA for FY 2013
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[FR Doc. 2013–23701 Filed 9–27–13; 8:45 am]
BILLING CODE 6820–EP–P
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]]>Agencies
[Federal Register Volume 78, Number 189 (Monday, September 30, 2013)]
[Rules and Regulations]
[Pages 60174-60175]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2013-23701]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Chapter 1
[Docket FAR 2013-0078, Sequence 6]
Federal Acquisition Regulation; Federal Acquisition Circular
2005-70; Small Entity Compliance Guide
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
[[Page 60175]]
ACTION: Small Entity Compliance Guide.
-----------------------------------------------------------------------
SUMMARY: This document is issued under the joint authority of DOD, GSA,
and NASA. This Small Entity Compliance Guide has been prepared in
accordance with section 212 of the Small Business Regulatory
Enforcement Fairness Act of 1996. It consists of a summary of the rules
appearing in Federal Acquisition Circular (FAC) 2005-70, which amends
the Federal Acquisition Regulation (FAR). An asterisk (*) next to a
rule indicates that a regulatory flexibility analysis has been
prepared. Interested parties may obtain further information regarding
these rules by referring to FAC 2005-70, which precedes this document.
These documents are also available via the Internet at https://www.regulations.gov.
DATES: September 30, 2013.
FOR FURTHER INFORMATION CONTACT: For clarification of content, contact
the analyst whose name appears in the table below. Please cite FAC
2005-70 and the FAR case number. For information pertaining to status
or publication schedules, contact the Regulatory Secretariat at 202-
501-4755.
Rule Listed in FAC 2005-70
------------------------------------------------------------------------
Item Subject FAR Case Analyst
------------------------------------------------------------------------
I *........... Pilot Program for 2013-015 Corrigan.
Enhancement of
Contractor
Employee
Whistleblower
Protections
(Interim).
II *.......... Allowability of 2013-017 Chambers.
Legal Costs for
Whistleblower
Proceedings
(Interim).
------------------------------------------------------------------------
SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the
actual revisions and/or amendments made by these FAR cases, refer to
the specific item numbers and subjects set forth in the documents
following these item summaries. FAC 2005-70 amends the FAR as specified
below:
Item I--Pilot Program for Enhancement of Contractor Employee
Whistleblower Protections (FAR Case 2013-015)
This interim rule amends the FAR to implement a four-year pilot
program to enhance the existing whistleblower protections for
contractor employees at subpart 3.9. In accordance with FAR
1.108(d)(3), contracting officers are encouraged to include the changes
in these rules in major modifications to contracts and orders awarded
prior to the effective date of this interim rule. The pilot program is
mandated by section 828, entitled ``Pilot Program for Enhancement of
Contractor Employee Whistleblower Protections,'' of the National
Defense Authorization Act (NDAA) for Fiscal Year (FY) 2013 (Pub. L.
112-239, enacted January 2, 2013). This rule implements section 828 by
amending FAR 3.900, Scope of subpart, to make FAR 3.901 through 3.906
inapplicable to DoD, NASA, and the Coast Guard and to prohibit the use
of these sections for new awards by all other agencies subject to the
FAR (title 41 agencies) through January 1, 2017. This rule creates a
new FAR section 3.908 to be used by title 41 agencies through January
1, 2017. Other exceptions: FAR 3.907, which addresses whistleblower
protections under the American Recovery and Reinvestment Act of 2009,
is unaffected by this rule. This rule does not provide any right not
otherwise provided by law to disclose classified information, nor does
it apply to any element of the intelligence community, as defined in
section 3(4) of the National Security Act of 1947 (50 U.S.C.
401(a)(4)). In addition, the interim rule applies to actions over the
simplified acquisition threshold.
Item II--Allowability of Legal Costs for Whistleblower Proceedings (FAR
Case 2013-017)
This interim rule amends the FAR by revising the cost principle at
FAR 31.205-47 to implement sections 827(g) and 828(d) of the NDAA for
FY 2013 (Pub. L. 112-239). There are two new whistleblower programs for
contractor and subcontractor employees, at 10 U.S.C. 2409 and 41 U.S.C.
4712. The latter program is a pilot program, being addressed in FAR
Case 2013-015, amending FAR subpart 3.9. The cost principle addresses
the allowability of legal costs incurred by a contractor or
subcontractor in connection with a whistleblower protection proceeding
commenced by a contractor or subcontractor employee submitting a
complaint of reprisal under the applicable whistleblower statute.
Because most contracts awarded to small businesses use simplified
acquisition procedures or are awarded on a competitive, fixed-price
basis, thus limiting their exposure to the cost principles, the impact
of this interim rule on small businesses will be minimal.
Dated: September 24, 2013.
William Clark,
Acting Director, Office of Government-wide Acquisition Policy, Office
of Acquisition Policy, Office of Government-wide Policy.
[FR Doc. 2013-23701 Filed 9-27-13; 8:45 am]
BILLING CODE 6820-EP-P
