Federal Acquisition Regulation; Incorporating Section K in Contracts, 70341-70342 [2014-27657]

Download as PDF Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations A. Analysis of Changes One editorial change was made to the proposed rule as a result of the public comments. DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION B. Analysis of Public Comments NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 1. Edits Comment: The respondent recommended adding commas to the changes in FAR parts 14 and 15. Response: Instead of commas, the word ‘‘see’’ was added. 48 CFR Parts 4, 14, 15, and 52 [FAC 2005–78; FAR Case 2014–001; Item I; Docket No. 2014–0001, Sequence No. 1] RIN 9000–AM78 Federal Acquisition Regulation; Incorporating Section K in Contracts Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). AGENCIES: ACTION: Final rule. DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to standardize the incorporation by reference of representations and certifications in contracts. SUMMARY: Effective: December 26, 2014. FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement Analyst, at (202) 501–1448, for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501–4755. Please cite FAC 2005–78, FAR Case 2014–001. DATES: SUPPLEMENTARY INFORMATION: I. Background DoD, GSA, and NASA published a proposed rule in the Federal Register at 78 FR 22615 on April 23, 2014, to revise the language at FAR subpart 4.12, Representations and Certifications, and add a new clause at FAR 52.204–19 to standardize the incorporation by reference of representations and certifications in contracts, regardless of which contract award form is used. FAR clause 52.212–4 has a new paragraph (v) to cover this issue for commercial items. One respondent submitted comments on the proposed rule. tkelley on DSK3SPTVN1PROD with RULES3 II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the comments in the development of the final rule. A discussion of the comments and the changes made to the rule as a result of those comments are provided as follows: VerDate Sep<11>2014 19:16 Nov 24, 2014 Jkt 235001 2. Out of Scope Comment: The respondent suggested revising the last sentence in the introductory paragraph of FAR 4.1202 (which will become 4.1202(a)) to include a reference to either 52.212–1 or 52.212–3. Response: No changes were made for the out-of-scope suggestion. Comment: The respondent suggested that the FAR matrix be revised to indicate that 52.204–6, 52.204–7, 52.204–13, and possibly, 52.204–12 are not applicable to commercial items. Response: No changes were made for the out-of-scope suggestion. III. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory alternatives and, if regulation is necessary, to select regulatory approaches that maximize net benefits (including potential economic, environmental, public health and safety effects, distributive impacts, and equity). E.O. 13563 emphasizes the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. This is not a significant regulatory action and, therefore, was not subject to review under section 6(b) of E.O. 12866, Regulatory Planning and Review, dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 804. IV. Regulatory Flexibility Act DoD, GSA, and NASA have prepared a Final Regulatory Flexibility Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 U.S.C. 601, et seq. The FRFA is summarized as follows: The objective of this final rule is to standardize the incorporation by reference of representations and certifications in contracts. No issues were raised by the public in response to the initial regulatory flexibility analysis. There are no reporting, recordkeeping, or other compliance requirements in the final rule. This final rule is an internal procedure requiring the contracting officer to acknowledge the small PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 70341 entity’s representations and certifications by incorporating them by reference in the contract award document. This final rule does not revise or impact the existing representations and certifications submitted by small entities; therefore, this final rule should have no significant economic impact on a substantial number of small entities. Interested parties may obtain a copy of the FRFA from the Regulatory Secretariat. The Regulatory Secretariat has submitted a copy of the FRFA to the Chief Counsel for Advocacy of the Small Business Administration. V. Paperwork Reduction Act The final 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). List of Subjects in 48 CFR Parts 4, 14, 15, and 52 Government procurement. Dated: November 17, 2014. 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 parts 4, 14, 15, and 52 as set forth below: ■ 1. The authority citation for 48 CFR parts 4, 14, 15, and 52 continues to read as follows: Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 U.S.C. 20113. PART 4—ADMINISTRATIVE MATTERS 2. Amend section 4.1200 by— a. Removing from the end of paragraph (a) the word ‘‘and’’; ■ b. Removing from the end of paragraph (b) the period and adding ‘‘; and’’ in its place; and ■ c. Adding paragraph (c) to read as follows: ■ ■ 4.1200 Scope. * * * * * (c) Incorporate by reference the contractor’s representations and certifications in the awarded contract. ■ 3. Amend section 4.1201 by adding paragraph (d) to read as follows: 4.1201 Policy. * * * * * (d) The contracting officer shall incorporate the representations and certifications by reference in the contract (see 52.204–19, or for acquisitions of commercial items see 52.212–4(v)). ■ 4. Amend section 4.1202 by— E:\FR\FM\25NOR3.SGM 25NOR3 70342 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations a. Redesignating paragraphs (a) through (cc) as paragraphs (a)(1) through (29), respectively; ■ b. Designating the introductory paragraph as paragraph (a); and ■ c. Adding a new paragraph (b) to read as follows: electronically via the System for Award Management (SAM), are incorporated by reference into the contract. 4.1202 Solicitation provision and contract clause. * 52.212–4 Contract Terms and Conditions—Commercial Items. * ■ * * * * (b) The contracting officer shall insert the clause at 52.204–19, Incorporation by Reference of Representations and Certifications, in solicitations and contracts. PART 14—SEALED BIDDING 5. Amend section 14.201–1 by adding a sentence at the end of paragraph (c) to read as follows: ■ 14.201–1 Uniform contract format. (End of clause) 9. Amend section 52.212–4 by revising the date of the clause; and adding paragraph (v) to read as follows: ■ * * * * Contract Terms And Conditions— Commercial Items (DEC 2014) * * * * * (v) Incorporation by reference. The Contractor’s representations and certifications, including those completed electronically via the System for Award Management (SAM), are incorporated by reference into the contract. * * * * * [FR Doc. 2014–27657 Filed 11–24–14; 8:45 am] BILLING CODE 6820–EP–P * * * * * (c) * * * The representations and certifications shall be incorporated by reference in the contract by using 52.204–19 (see 4.1202(b)) or for acquisitions of commercial items see 52.212–4(v). * * * * * DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION PART 15—CONTRACTING BY NEGOTIATION 48 CFR Parts 22 and 53 6. Amend section 15.204–1 by revising the last sentence of paragraph (b) to read as follows: [FAC 2005–78; FAR Case 2014–011; Item II; Docket No. 2014–0011; Sequence No. 1] 15.204–1 Federal Acquisition Regulation: Streamlining Claims Processing ■ Uniform contract format. * * * * * (b) * * * The representations and certifications are incorporated by reference in the contract by using 52.204–19 (see 4.1202(b)) or for acquisitions of commercial items see 52.212–4(v). * * * * * Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. AGENCIES: [Amended] 7. Amend section 52.204–8 by removing from the introductory text ‘‘4.1202’’ and adding ‘‘4.1202(a)’’ in its place. ■ 8. Add section 52.204–19 to read as follows: ■ tkelley on DSK3SPTVN1PROD with RULES3 52.204–19 Incorporation by Reference of Representations and Certifications. As prescribed in 4.1202(b), insert the following clause. Incorporation by Reference of Representations and Certifications (DEC 2014) The Contractor’s representations and certifications, including those completed VerDate Sep<11>2014 19:16 Nov 24, 2014 Jkt 235001 DoD, GSA, and NASA are issuing a final rule amending the Federal Acquisition Regulation (FAR) to implement the Streamlining Claims Processing for Federal Contractor Employees Act which amends the United States Code (U.S.C.) to transfer certain functions from the Government Accountability Office (GAO) to the Department of Labor (DOL) relating to the processing of claims for the payment of workers who were not paid appropriate wages under certain provisions of the U.S.C. DATES: Effective: December 26, 2014. FOR FURTHER INFORMATION CONTACT: Mr. Edward Loeb, Procurement Analyst, at 202–501–0650 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at 202–501– SUMMARY: PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 52.204–8 RIN 9000–AM83 PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 4755. Please cite FAC 2005–78, FAR Case 2014–011. SUPPLEMENTARY INFORMATION: I. Background The Streamlining Claims Processing for Federal Contractor Employees Act (the Act) (Pub. L. 113–50) was enacted on November 21, 2013. The Act transfers certain administrative authorities relating to the processing of claims for the payment of workers who were not paid appropriate wages under certain provisions of title 40 U.S.C. from the GAO to the DOL. One of the specific functions transferred to the DOL at 40 U.S.C. 3144 and 3703 is the authority to pay certain wages. FAR part 22, Application of Labor Laws to Government Acquisitions, which addresses the withholding or suspending of contract payments and the disposition of such payments, requires revision to be consistent with the Act. Specifically, FAR 22.406–9, Withholding from or suspension of contract payments, at paragraph (c), includes instructions regarding the disposition of contract payments that have been withheld or suspended. Also, FAR 22.406–11, Contract terminations, includes instructions for submitting reports when terminations result from violation of labor standards clauses. This final rule revises these FAR sections to appropriately reflect the administrative authorities of the DOL, and to provide a link to the DOL Web site and guidance for disbursement of withheld funds. Reference to Standard Form (SF) 1093, Schedule of Withholdings Under the Construction Wage Rate Requirements Statute (40 U.S.C. Chapter 31, Subchapter IV, Section 3144) and/or the Contract Work Hours and Safety Standards Statute (40 U.S.C. Chapter 37, Section 3703), is deleted. The SF 1093 was previously used to disburse funds to the GAO and is now obsolete. II. Publication of This Final Rule for Public Comment Is Not Required by Statute ‘‘Publication of proposed regulations’’, 41 U.S.C. 1707, is the statute which applies to the publication of the Federal Acquisition Regulation. Paragraph (a)(1) of the statute requires that a procurement policy, regulation, procedure or form (including an amendment or modification thereof) must be published for public comment if it relates to the expenditure of appropriated funds, and has either a significant effect beyond the internal operating procedures of the agency issuing the policy, regulation, procedure or form, or has a significant cost or E:\FR\FM\25NOR3.SGM 25NOR3

Agencies

[Federal Register Volume 79, Number 227 (Tuesday, November 25, 2014)]
[Rules and Regulations]
[Pages 70341-70342]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2014-27657]



[[Page 70341]]

-----------------------------------------------------------------------

DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4, 14, 15, and 52

[FAC 2005-78; FAR Case 2014-001; Item I; Docket No. 2014-0001, Sequence 
No. 1]
RIN 9000-AM78


Federal Acquisition Regulation; Incorporating Section K in 
Contracts

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

ACTION: Final rule.

-----------------------------------------------------------------------

SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to standardize the incorporation 
by reference of representations and certifications in contracts.

DATES: Effective: December 26, 2014.

FOR FURTHER INFORMATION CONTACT: Mr. Curtis E. Glover, Sr., Procurement 
Analyst, at (202) 501-1448, for clarification of content. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at 202-501-4755. Please cite FAC 2005-78, FAR 
Case 2014-001.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 78 FR 22615 on April 23, 2014, to revise the language at 
FAR subpart 4.12, Representations and Certifications, and add a new 
clause at FAR 52.204-19 to standardize the incorporation by reference 
of representations and certifications in contracts, regardless of which 
contract award form is used. FAR clause 52.212-4 has a new paragraph 
(v) to cover this issue for commercial items. One respondent submitted 
comments on the proposed rule.

II. Discussion and Analysis

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (the Councils) reviewed the comments in the 
development of the final rule. A discussion of the comments and the 
changes made to the rule as a result of those comments are provided as 
follows:

A. Analysis of Changes

    One editorial change was made to the proposed rule as a result of 
the public comments.

B. Analysis of Public Comments

1. Edits
    Comment: The respondent recommended adding commas to the changes in 
FAR parts 14 and 15.
    Response: Instead of commas, the word ``see'' was added.
2. Out of Scope
    Comment: The respondent suggested revising the last sentence in the 
introductory paragraph of FAR 4.1202 (which will become 4.1202(a)) to 
include a reference to either 52.212-1 or 52.212-3.
    Response: No changes were made for the out-of-scope suggestion.
    Comment: The respondent suggested that the FAR matrix be revised to 
indicate that 52.204-6, 52.204-7, 52.204-13, and possibly, 52.204-12 
are not applicable to commercial items.
    Response: No changes were made for the out-of-scope suggestion.

III. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is not a significant regulatory action and, therefore, was not 
subject to review under section 6(b) of E.O. 12866, Regulatory Planning 
and Review, dated September 30, 1993. This rule is not a major rule 
under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA have prepared a Final Regulatory Flexibility 
Analysis (FRFA) consistent with the Regulatory Flexibility Act, 5 
U.S.C. 601, et seq. The FRFA is summarized as follows:

    The objective of this final rule is to standardize the 
incorporation by reference of representations and certifications in 
contracts.
    No issues were raised by the public in response to the initial 
regulatory flexibility analysis. There are no reporting, 
recordkeeping, or other compliance requirements in the final rule. 
This final rule is an internal procedure requiring the contracting 
officer to acknowledge the small entity's representations and 
certifications by incorporating them by reference in the contract 
award document.
    This final rule does not revise or impact the existing 
representations and certifications submitted by small entities; 
therefore, this final rule should have no significant economic 
impact on a substantial number of small entities.

    Interested parties may obtain a copy of the FRFA from the 
Regulatory Secretariat. The Regulatory Secretariat has submitted a copy 
of the FRFA to the Chief Counsel for Advocacy of the Small Business 
Administration.

V. Paperwork Reduction Act

    The final 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).

List of Subjects in 48 CFR Parts 4, 14, 15, and 52

    Government procurement.

    Dated: November 17, 2014.
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 parts 4, 14, 15, and 52 
as set forth below:

0
1. The authority citation for 48 CFR parts 4, 14, 15, and 52 continues 
to read as follows:

    Authority:  40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51 
U.S.C. 20113.

PART 4--ADMINISTRATIVE MATTERS

0
2. Amend section 4.1200 by--
0
a. Removing from the end of paragraph (a) the word ``and'';
0
b. Removing from the end of paragraph (b) the period and adding ``; 
and'' in its place; and
0
c. Adding paragraph (c) to read as follows:


4.1200  Scope.

* * * * *
    (c) Incorporate by reference the contractor's representations and 
certifications in the awarded contract.

0
3. Amend section 4.1201 by adding paragraph (d) to read as follows:


4.1201  Policy.

* * * * *
    (d) The contracting officer shall incorporate the representations 
and certifications by reference in the contract (see 52.204-19, or for 
acquisitions of commercial items see 52.212-4(v)).

0
4. Amend section 4.1202 by--

[[Page 70342]]

0
a. Redesignating paragraphs (a) through (cc) as paragraphs (a)(1) 
through (29), respectively;
0
b. Designating the introductory paragraph as paragraph (a); and
0
c. Adding a new paragraph (b) to read as follows:


4.1202  Solicitation provision and contract clause.

* * * * *
    (b) The contracting officer shall insert the clause at 52.204-19, 
Incorporation by Reference of Representations and Certifications, in 
solicitations and contracts.

PART 14--SEALED BIDDING

0
5. Amend section 14.201-1 by adding a sentence at the end of paragraph 
(c) to read as follows:


14.201-1  Uniform contract format.

* * * * *
    (c) * * * The representations and certifications shall be 
incorporated by reference in the contract by using 52.204-19 (see 
4.1202(b)) or for acquisitions of commercial items see 52.212-4(v).
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

0
6. Amend section 15.204-1 by revising the last sentence of paragraph 
(b) to read as follows:


15.204-1  Uniform contract format.

* * * * *
    (b) * * * The representations and certifications are incorporated 
by reference in the contract by using 52.204-19 (see 4.1202(b)) or for 
acquisitions of commercial items see 52.212-4(v).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES


52.204-8  [Amended]

0
7. Amend section 52.204-8 by removing from the introductory text 
``4.1202'' and adding ``4.1202(a)'' in its place.

0
8. Add section 52.204-19 to read as follows:


52.204-19  Incorporation by Reference of Representations and 
Certifications.

    As prescribed in 4.1202(b), insert the following clause.

Incorporation by Reference of Representations and Certifications (DEC 
2014)

    The Contractor's representations and certifications, including 
those completed electronically via the System for Award Management 
(SAM), are incorporated by reference into the contract.

(End of clause)


0
9. Amend section 52.212-4 by revising the date of the clause; and 
adding paragraph (v) to read as follows:


52.212-4  Contract Terms and Conditions--Commercial Items.

* * * * *

Contract Terms And Conditions--Commercial Items (DEC 2014)

* * * * *
    (v) Incorporation by reference. The Contractor's representations 
and certifications, including those completed electronically via the 
System for Award Management (SAM), are incorporated by reference 
into the contract.
* * * * *
[FR Doc. 2014-27657 Filed 11-24-14; 8:45 am]
BILLING CODE 6820-EP-P