Federal Acquisition Regulation: Prohibition on Contracting With Corporations With Delinquent Taxes or a Felony Conviction, 75903-75907 [2015-30456]

Download as PDF Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations Item V—Retention Periods (FAR Case 2015–009) This final rule amends the FAR by updating the Government file retention periods to conform with the retention periods in the National Archives and Records Administration (NARA) General Records Schedule (GRS). Language is also added to instruct agencies that require a shorter retention period for certain records to request approval from NARA through the agency’s record officer. This rule change does not place any new requirements on small entities; the only change is the timeframe for retention by the Government of Government records. Item VI—Establishing a Minimum Wage for Contractors (FAR Case 2015– 003) DoD, GSA, and NASA are issuing a final rule adopting the interim rule published December 15, 2014, with change. The interim rule amended the FAR to implement Executive Order 13658 and a Department of Labor final rule issued on October 7, 2014, both entitled ‘‘Establishing a Minimum Wage for Contractors,’’ which established a new minimum wage for covered service and construction contracts of $10.10 per hour, as of January 1, 2015. The Executive Order minimum wage will be adjusted annually, by the Department of Labor. Contracting officers will include a clause in covered contracts and will adjust contract prices for the annual adjustments in the Executive Order minimum wage. Contractors shall consider any subcontractor request, including requests by small businesses subcontractors, for a subcontract price adjustment due to the annual adjustment in the Executive Order minimum wage. There is no significant impact on small entities imposed by the FAR rule. Item VII—Technical Amendment Editorial change is made at FAR 1.106. wgreen on DSK2VPTVN1PROD with RULES2 Dated: November 20, 2015. William Clark, Director, Office of Government-wide Acquisition Policy, Office of Acquisition Policy, Office of Government-wide Policy. Federal Acquisition Circular (FAC) 2005–85 is issued under the authority of the Secretary of Defense, the Administrator of General Services, and the Administrator for the National Aeronautics and Space Administration. Unless otherwise specified, all Federal Acquisition Regulation (FAR) and other directive material contained in FAC 2005–85 is effective December 4, 2015 except for item I and III which are VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 effective February 26, 2016, and item V which is effective January 4, 2016. Dated: November 23, 2015. Claire M. Grady, Director, Defense Procurement and Acquisition Policy. Dated: November 24, 2015. Jeffrey A. Koses, Senior Procurement Executive/Deputy CAO, Office of Acquisition Policy, U.S. General Services Administration. Dated: November 20, 2015. William P. McNally, Assistant Administrator, Office of Procurement, National Aeronautics and Space Administration. [FR Doc. 2015–30455 Filed 12–3–15; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 4, 9, 12, and 52 [FAC 2005–85; FAR Case 2015–011; Item No. I; Docket No. 2015–0011; Sequence No. 1] RIN 9000–AN05 Federal Acquisition Regulation: Prohibition on Contracting With Corporations With Delinquent Taxes or a Felony Conviction Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Interim rule. AGENCIES: DoD, GSA, and NASA are issuing an interim rule amending the Federal Acquisition Regulation (FAR) to implement sections of the Consolidated and Further Continuing Appropriations Act, 2015, to prohibit the Federal Government from entering into a contract with any corporation having a delinquent Federal tax liability or a felony conviction under any Federal law, unless the agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government. DATES: Effective date: February 26, 2016. Comment date: Interested parties should submit written comments to the Regulatory Secretariat on or before February 2, 2016 to be considered in the formation of the final rule. SUMMARY: PO 00000 Frm 00003 Fmt 4701 Sfmt 4700 75903 Submit comments identified by FAC 2005–85, FAR Case 2015–011, by any of the following methods: • Regulations.gov: http:// www.regulations.gov. Submit comments via the Federal eRulemaking portal by searching for ‘‘FAR Case 2015–011’’. Select the link ‘‘Comment Now’’ that corresponds with ‘‘FAR Case 2015– 011’’. Follow the instructions provided on the screen. Please include your name, company name (if any), and ‘‘FAR Case 2015–011’’ on your attached document. • Mail: General Services Administration, Regulatory Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405–0001. Instructions: Please submit comments only and cite FAC 2005–85, FAR Case 2015–011, Prohibition on Contracting with Corporation with Delinquent Taxes or a Felony Conviction, in all correspondence related to this case. Comments received generally will be posted without change to http:// regulations.gov, including any personal and/or business confidential information provided. To confirm receipt of your comment(s), please check www.regulations.gov, approximately two to three Days after submission to verify posting (except allow 30 days for posting of comments submitted by mail). FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement Analyst, at 202–219–0202 for clarification of content. For information pertaining to status or publication schedules, contact the Regulatory Secretariat Division at 202–501–4755. Please cite FAC 2005– 85, FAR Case 2015–011. SUPPLEMENTARY INFORMATION: ADDRESSES: I. Background This interim rule amends the FAR to implement sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) and section 523 of Division B of the same act. A. Representation This rule requires that all offerors responding to Federal solicitations make a representation regarding whether the offeror is a corporation with a delinquent tax liability or a felony conviction under Federal law, as required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) (and similar provisions in subsequent appropriations acts). E:\FR\FM\04DER2.SGM 04DER2 75904 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations When an offeror provides an affirmative response in paragraph (b)(1) or (2) to the representation, the contracting officer is required to request additional information from the offeror and notify the agency official responsible for initiating debarment or suspension action. The contracting officer shall not make an award to the corporation unless an agency suspending or debarring official has considered suspension or debarment of the corporation and determined that this further action is not necessary to protect the interests of the Government. wgreen on DSK2VPTVN1PROD with RULES2 B. Certification This rule also adds a certification requirement regarding tax matters, in solicitations for which the resultant contract (including options) may have a value greater than $5,000,000, and that will use funds made available by Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) (and similar provisions in subsequent appropriations acts). Agencies funded by these acts include the Department of Commerce, the Department of Justice, NASA, as well as some smaller agencies. If the certification regarding tax matters is applicable, then the contracting officer shall not award any contract in an amount greater than $5,000,000, unless the offeror affirmatively certified in its offer to all the required certifications regarding tax matters in FAR Clause 52.209–12(b). This certification will not be included in the annual representations and certifications, because it has very limited application. In accordance with 41 U.S.C. 1304, the certification included in this regulation is specifically required by statute, and therefore its inclusion in the FAR does not require the written approval of the Administrator for Federal Procurement Policy. C. Applicability to Commercial Items (Including Commercially Available Offthe-Shelf (COTS) Items) and Acquisitions Not Greater Than the Simplified Acquisition Threshold This interim rule implements sections 744 and 745 of Division E, Title VII, and section 523 of Division B, Title V, of the Consolidated and Further Continuing Appropriations Act, 2015. Sections 744 and 745 of Division E prohibit any Federal agency from using funds appropriated or otherwise made available by the Act or any other act to enter into a contract with a corporation that has delinquent unpaid taxes or has been convicted of a felony criminal VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 violation under any Federal law within the past 24 months, unless the Federal agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the government. Section 523 of Division B, which affects Commerce, Justice, NASA, and some smaller agencies, requires certification with regard to violations of certain tax matters. The FAR Council and the Administrator for Federal Procurement Policy have determined that it is not in the best interest of the United States to exempt contracts for the acquisition of commercial items (including commercially available off-the-shelf items) or acquisitions in amounts not greater than the simplified acquisition threshold (other than the certification requirement), because it imposes a minimal burden (just a representation or, in limited instances, a certification), in contrast to the benefit of avoiding awarding contracts to corporations that have delinquent unpaid taxes, or felony convictions for violations of Federal Law, or to prospective contractors with other violations relating to Federal tax matters. Tax liability is a serious matter and Congressional hearings (e.g., the Permanent Subcommittee on Investigations, Committee on Homeland Security and Governmental Affairs, U.S. Senate, held a hearing on May 24, 2011, entitled, ‘‘Stimulus Contractors Who Cheat On Their Taxes: What Happened?,’’ and the Subcommittee on Government Management, Organization, and Procurement, Committee on Oversight and Government Reform, House of Representatives held a hearing on April 19, 2007, also concerning Federal contractors who abuse the Federal tax system) have been held to identify ways to ensure that funds are not spent with contractors with tax delinquencies. It is in the interest of the United States to only award contracts to entities that are responsible and lawabiding. This determination is consistent with the current coverage in paragraph (h)(4) of the FAR clause at 52.212–3, Offeror Representations and Certifications— Commercial Items, which requires offerors to represent whether they have, within a three-year period preceding their offer, been notified of any delinquent Federal taxes in an amount that exceeds $3,500 for which the liability remains unsatisfied. II. Executive Orders 12866 and 13563 Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess all costs and benefits of available regulatory PO 00000 Frm 00004 Fmt 4701 Sfmt 4700 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 a significant regulatory action and, therefore, was 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. III. Regulatory Flexibility Act Although DoD, GSA, and NASA do not expect that this change will 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., an Initial Regulatory Flexibility Analysis (IRFA) has been prepared and is summarized as follows: This action is necessary to implement sections 744 and 745 of Division E of the Consolidated and Continuing Further Appropriations Act, 2015 (Pub. L. 113–235) (and similar provisions in subsequent appropriations acts), to prohibit using any of the funds made available under that or any other act to enter a contract with any corporation with any delinquent Federal tax liability or a felony conviction, unless an agency has considered suspension or debarment of the corporation and has made a determination that this further action is not necessary to protect the interests of the Government. The rule also implements section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) (and similar provisions in subsequent appropriations acts). This section prohibits the award of any contract in an amount greater than $5,000,000, using funds appropriated under Division B of the Consolidated and Continuing Further Appropriations Act, 2015, unless the offeror affirmatively certifies that it has filed all Federal tax returns required during the three years preceding the certification; has not been convicted of a criminal offense under the Internal Revenue Code of 1986; and has not, more than 90 days prior to certification, been notified of any unpaid Federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding. The objective of the interim rule is to prohibit award to entities that are delinquent in the payment of Federal taxes or have been convicted of a felony under Federal law. The E:\FR\FM\04DER2.SGM 04DER2 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations legal basis for the rule is the above cited statutes. Based on current data with regard to active registrants in the System for Award Management (SAM), the rule will apply to approximately 65,000 small business concerns, which are required to complete the annual representations and certifications at least once per year in order to keep their registration in SAM current. The information collection requirement imposed by this rule is minimal—it is a brief representation, and in some cases also a certification. Each representation is estimated to require an average of six minutes to complete. The rule does not duplicate, overlap, or conflict with any other Federal rules. DoD, GSA, and NASA were unable to identify any significant alternatives that would reduce the impact on small businesses and still meet the objectives of the statute. However, other than the potential for not receiving award if the small entity is delinquent in payment of Federal taxes or has been convicted of a felony, there is no significant economic impact on small entities because the information collection burden imposed by the rule is minimal. 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. DoD, GSA, and NASA will also consider comments from small entities concerning the existing regulations in subparts affected by the rule in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite 5 U.S.C. 610 (FAR Case 2015–011), in correspondence. IV. Paperwork Reduction Act The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The rule contains information collection requirements. The Office of Management and Budget (OMB) has cleared this information collection requirement under OMB Control Number 9000–0193, titled: Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction. wgreen on DSK2VPTVN1PROD with RULES2 A. Public Reporting Burden The public reporting burden for this collection of information is estimated to average .1 hours per response, including the time for reviewing instructions, searching existing data sources, gathering and maintaining the data needed, and completing and reviewing the collection of information. VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 1. 52.209–11 Representation The annual reporting burden for 52.209–11 is estimated as follows: Respondents: 352,000. Responses per respondent: Approximately 1.01. Total annual responses: 355,520. Preparation hours per response: .1 hours. Total response Burden Hours: 35,552. 2. 52.209–12 Certification The annual reporting burden for 52.209–12 is estimated as follows: Respondents: 440. Responses per respondent: 3. Total annual responses: 1,320. Preparation hours per response: .1 hours. Total response Burden Hours: 132. 3. Total The average annual reporting burden is estimated as follows: Total annual responses: 356,840. Preparation hours per response: .1 hours. Total response Burden Hours: 35,684. B. Request for Comments Regarding Paperwork Burden Submit comments, including suggestions for reducing this burden, not later than February 2, 2016 to: FAR Desk Officer, OMB, Room 10102, NEOB, Washington, DC 20503, and a copy to the General Services Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405–0001. Public comments are particularly invited on: Whether this collection of information is necessary for the proper performance of functions of the FAR, and will have practical utility; whether our estimate of the public burden of this collection of information is accurate, and based on valid assumptions and methodology; ways to enhance the quality, utility, and clarity of the information to be collected; and ways in which we can minimize the burden of the collection of information on those who are to respond, through the use of appropriate technological collection techniques or other forms of information technology. Requesters may obtain a copy of the supporting statement from the General Services Administration, Regulatory Secretariat Divison (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405–0001. Please cite OMB Control Number 9000–0193, Prohibition on Contracting with Corporations with Delinquent Taxes or a Felony Conviction, in all correspondence. PO 00000 Frm 00005 Fmt 4701 Sfmt 4700 75905 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. This action is necessary because these appropriations act restrictions apply to all funds appropriated under the respective acts, and it is important to provide immediate direction to contracting officers, so that they do not inadvertently violate the conditions placed upon the expenditure of the funds. The effective date is set as February 26, 2016, to allow the Government to conform its procurement databases. 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 Parts 1, 4, 9, 12, and 52 Government procurement. Dated: November 20, 2015. William F. Clark, 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 1, 4, 9, 12, and 52 as set forth below: ■ 1. The authority citation for 48 CFR parts 1, 4, 9, 12, 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 1—FEDERAL ACQUISITION REGULATIONS SYSTEM 1.106 [Amended] 2. Amend section 1.106 in the table following the introductory text by adding, in sequence, FAR segments ‘‘52.209–11’’ and ‘‘52.209–12’’ and their corresponding OMB Control number ‘‘9000–0193’’. ■ PART 4—ADMINISTRATIVE MATTERS 3. Amend section 4.1202 by redesignating paragraphs (a)(8) through (29) as paragraphs (a)(9) through (30), respectively; and adding a new paragraph (a)(8) to read as follows: ■ 4.1202 Solicitation provision and contract clause. (a) * * * E:\FR\FM\04DER2.SGM 04DER2 75906 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations (8) 52.209–11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. * * * * * PART 9—CONTRACTOR QUALIFICATIONS 4. Amend section 9.104–5 by revising the section heading and paragraph (b) and adding paragraphs (c) and (d) to read as follows: ■ 9.104–5 Representation and certifications regarding responsibility matters. wgreen on DSK2VPTVN1PROD with RULES2 * * * * * (b) The provision at 52.209–11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, implements sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) (and similar provisions in subsequent appropriations acts). When an offeror provides an affirmative response in paragraph (b)(1) or (2) of the provision at 52.209–11 or paragraph (q)(2)(i) or (ii) of provision 52.212–3, the contracting officer shall— (1) Promptly, upon receipt of offers, request such additional information from the offeror as the offeror deems necessary in order to demonstrate the offeror’s responsibility to the contracting officer (but see 9.405); (2) Notify, in accordance with agency procedures (see 9.406–3(a) and 9.407– 3(a)), the agency official responsible for initiating debarment or suspension action; and (3) Not award to the corporation unless an agency suspending or debarring official has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government. (c) If the provision at 52.209–12, Certification Regarding Tax Matters, is applicable (see 9.104–7(e)), then the contracting officer shall not award any contract in an amount greater than $5,000,000, unless the offeror affirmatively certified in its offer, as required by paragraph (b)(1), (2), and (3) of the provision. (d) Offerors who do not furnish the representation or certifications or such information as may be requested by the contracting officer shall be given an opportunity to remedy the deficiency. Failure to furnish the representation or certifications or such information may render the offeror nonresponsible. ■ 5. Amend section 9.104–7 by adding paragraphs (d) and (e) to read as follows: VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 9.104–7 Solicitation provisions and contract clauses. 52.204–8 Annual Representations and Certifications. * * * * * * (d) The contracting officer shall insert the provision 52.209–11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law, in all solicitations. (e) For agencies receiving funds subject to section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235) and similar provisions in subsequent appropriations acts, the contracting officer shall insert the provision 52.209–12, Certification Regarding Tax Matters, in solicitations for which the resultant contract (including options) may have a value greater than $5,000,000. Division B of the Consolidated and Continuing Further Appropriations Act, 2015 appropriates funds for the following agencies: The Department of Commerce, the Department of Justice, the National Aeronautics and Space Administration, the Office of Science and Technology Policy, the National Science Foundation, the Commission on Civil Rights, the Equal Employment Opportunity Commission, the U.S. International Trade Commission, the Legal Services Corporation, the Marine Mammal Commission, the Office of the United States Trade Representative, and the State Justice Institute. PART 12—ACQUISITION OF COMMERCIAL ITEMS 6. Amend section 12.301 by redesignating paragraphs (d)(4) through (6) as paragraphs (d)(5) through (7), respectively, and adding a new paragraph (d)(4) to read as follows: ■ 12.301 Solicitation provisions and contract clauses for the acquisition of commercial items. * * * * * (d) * * * (4) Insert the provision at 52.209–12, Certification Regarding Tax Matters, as prescribed at 9.104–7(e). * * * * * PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 7. Amend section 52.204–8 by— a. Revising the date of the provision; ■ b. Redesignating paragraphs (c)(1)(vii) through (xxi) as (c)(1)(viii) through (xxii), respectively; and ■ c. Adding a new paragraph (c)(1)(vii). The revision and addition read as follows: ■ ■ PO 00000 Frm 00006 Fmt 4701 Sfmt 4700 * * * * Annual Representations and Certifications (Feb 2016) * * * * * (c)(1) * * * (vii) 52.209–11, Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. This provision applies to all solicitations. * * * * * 8. Add sections 52.209–11 and 52.209–12 to read as follows: ■ 52.209–11 Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. As prescribed in 9.104–7(d), insert the following provision: Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law (Feb 2016) (a) As required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235), and similar provisions, if contained in subsequent appropriations acts, the Government will not enter into a contract with any corporation that— (1) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless an agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or (2) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless an agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government. (b) The Offeror represents that— (1) It is [ ] is not [ ] a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and (2) It is [ ] is not [ ] a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months. (End of provision) 52.209–12 Matters. Certification Regarding Tax As prescribed in 9.104–7(e), insert the following provision: E:\FR\FM\04DER2.SGM 04DER2 Federal Register / Vol. 80, No. 233 / Friday, December 4, 2015 / Rules and Regulations Certification Regarding Tax Matters (Feb 2016) (a) This provision implements section 523 of Division B of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235), and similar provisions, if contained in subsequent appropriations acts. (b) If the Offeror is proposing a total contract price that will exceed $5,000,000 (including options), the Offeror shall certify that, to the best of its knowledge and belief, it— (1) Has [ ] filed all Federal tax returns required during the three years preceding the certification; (2) Has not [ ] been convicted of a criminal offense under the Internal Revenue Code of 1986; and (3) Has not [ ], more than 90 days prior to certification, been notified of any unpaid Federal tax assessment for which the liability remains unsatisfied, unless the assessment is the subject of an installment agreement or offer in compromise that has been approved by the Internal Revenue Service and is not in default, or the assessment is the subject of a non-frivolous administrative or judicial proceeding. (End of provision) ■ 9. Amend section 52.212–3 by— ■ a. Revising the date of the provision; ■ b. Removing from the introductory text and the first undesignated paragraph in paragraph (b)(2) ‘‘through p’’ and adding ‘‘though q’’ in their places, respectively; and ■ c. Adding paragraph (q). The revision and addition read as follows: agency has considered suspension or debarment of the corporation and made a determination that this action is not necessary to protect the interests of the Government. (2) The Offeror represents that— (i) It is [ ] is not [ ] a corporation that has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability; and (ii) It is [ ] is not [ ] a corporation that was convicted of a felony criminal violation under a Federal law within the preceding 24 months. (End of provision) [FR Doc. 2015–30456 Filed 12–3–15; 8:45 am] BILLING CODE 6820–EP–P DEPARTMENT OF DEFENSE GENERAL SERVICES ADMINISTRATION NATIONAL AERONAUTICS AND SPACE ADMINISTRATION 48 CFR Parts 1, 22, and 52 [FAC 2005–85; FAR Case 2015–013; Item II; Docket No. 2015–0013, Sequence No. 1] RIN 9000–AN01 52.212–3 Offeror Representations and Certifications—Commercial Items. Federal Acquisition Regulation; Further Amendments to Equal Employment Opportunity * AGENCY: * * * * Offeror Representations and Certifications— Commercial Items (Feb 2016) wgreen on DSK2VPTVN1PROD with RULES2 * * * * * (q) Representation by Corporations Regarding Delinquent Tax Liability or a Felony Conviction under any Federal Law. (1) As required by sections 744 and 745 of Division E of the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 113–235), and similar provisions, if contained in subsequent appropriations acts, The Government will not enter into a contract with any corporation that— (i) Has any unpaid Federal tax liability that has been assessed, for which all judicial and administrative remedies have been exhausted or have lapsed, and that is not being paid in a timely manner pursuant to an agreement with the authority responsible for collecting the tax liability, where the awarding agency is aware of the unpaid tax liability, unless an agency has considered suspension or debarment of the corporation and made a determination that suspension or debarment is not necessary to protect the interests of the Government; or (ii) Was convicted of a felony criminal violation under any Federal law within the preceding 24 months, where the awarding agency is aware of the conviction, unless an VerDate Sep<11>2014 15:22 Dec 03, 2015 Jkt 238001 Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA). ACTION: Final rule. DoD, GSA, and NASA have adopted as final, without change, an interim rule amending the Federal Acquisition Regulation (FAR) to implement Executive Order (E.O.) 13672, entitled, ‘‘Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity,’’ and a final rule issued by the Department of Labor (DOL). DATES: Effective: December 4, 2015. 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– 4755. Please cite FAC 2005–85, FAR Case 2015–013. SUPPLEMENTARY INFORMATION: SUMMARY: PO 00000 Frm 00007 Fmt 4701 Sfmt 4700 75907 I. Background DoD, GSA, and NASA published an interim rule in the Federal Register at 80 FR 19504 on April 10, 2015, to implement E.O. 13672, entitled, ‘‘Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity,’’ and a final rule issued by the Department of Labor at 41 CFR part 60. One public comment was submitted on the interim rule. II. Discussion and Analysis The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (the Councils) reviewed the public comment in the development of the final rule. The respondent had pointed to an error in a clause number in the interim rule publication. The error in FAR 52.213–4 was corrected in a Technical Amendment to Federal Acquisition Circular 2005–82 published in the Federal Register at 80 FR 26427 on May 7, 2015; therefore no further change to the interim rule is required. 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. 604, et seq. The FRFA is summarized as follows: This rule is necessary to implement Executive Order (E.O.) 13672, ‘‘Further Amendments to Executive Order 11478, Equal Employment Opportunity in the Federal Government, and Executive Order 11246, Equal Employment Opportunity,’’ and a final rule issued by the DOL at 41 CFR part 60, which published in the Federal Register at 79 FR 72985 on December 09, 2014. The interim rule, published on April 10, 2015, provides for a uniform policy to E:\FR\FM\04DER2.SGM 04DER2

Agencies

[Federal Register Volume 80, Number 233 (Friday, December 4, 2015)]
[Rules and Regulations]
[Pages 75903-75907]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-30456]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 1, 4, 9, 12, and 52

[FAC 2005-85; FAR Case 2015-011; Item No. I; Docket No. 2015-0011; 
Sequence No. 1]
RIN 9000-AN05


Federal Acquisition Regulation: Prohibition on Contracting With 
Corporations With Delinquent Taxes or a Felony Conviction

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

ACTION: Interim rule.

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

SUMMARY: DoD, GSA, and NASA are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement sections of the 
Consolidated and Further Continuing Appropriations Act, 2015, to 
prohibit the Federal Government from entering into a contract with any 
corporation having a delinquent Federal tax liability or a felony 
conviction under any Federal law, unless the agency has considered 
suspension or debarment of the corporation and has made a determination 
that this further action is not necessary to protect the interests of 
the Government.

DATES: Effective date: February 26, 2016.
    Comment date: Interested parties should submit written comments to 
the Regulatory Secretariat on or before February 2, 2016 to be 
considered in the formation of the final rule.

ADDRESSES: Submit comments identified by FAC 2005-85, FAR Case 2015-
011, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. Submit 
comments via the Federal eRulemaking portal by searching for ``FAR Case 
2015-011''. Select the link ``Comment Now'' that corresponds with ``FAR 
Case 2015-011''. Follow the instructions provided on the screen. Please 
include your name, company name (if any), and ``FAR Case 2015-011'' on 
your attached document.
     Mail: General Services Administration, Regulatory 
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, 
Washington, DC 20405-0001.
    Instructions: Please submit comments only and cite FAC 2005-85, FAR 
Case 2015-011, Prohibition on Contracting with Corporation with 
Delinquent Taxes or a Felony Conviction, in all correspondence related 
to this case. Comments received generally will be posted without change 
to http://regulations.gov, including any personal and/or business 
confidential information provided. To confirm receipt of your 
comment(s), please check www.regulations.gov, approximately two to 
three Days after submission to verify posting (except allow 30 days for 
posting of comments submitted by mail).

FOR FURTHER INFORMATION CONTACT: Ms. Cecelia L. Davis, Procurement 
Analyst, at 202-219-0202 for clarification of content. For information 
pertaining to status or publication schedules, contact the Regulatory 
Secretariat Division at 202-501-4755. Please cite FAC 2005-85, FAR Case 
2015-011.

SUPPLEMENTARY INFORMATION:

I. Background

    This interim rule amends the FAR to implement sections 744 and 745 
of Division E of the Consolidated and Further Continuing Appropriations 
Act, 2015 (Pub. L. 113-235) and section 523 of Division B of the same 
act.

A. Representation

    This rule requires that all offerors responding to Federal 
solicitations make a representation regarding whether the offeror is a 
corporation with a delinquent tax liability or a felony conviction 
under Federal law, as required by sections 744 and 745 of Division E of 
the Consolidated and Further Continuing Appropriations Act, 2015 (Pub. 
L. 113-235) (and similar provisions in subsequent appropriations acts).

[[Page 75904]]

    When an offeror provides an affirmative response in paragraph 
(b)(1) or (2) to the representation, the contracting officer is 
required to request additional information from the offeror and notify 
the agency official responsible for initiating debarment or suspension 
action. The contracting officer shall not make an award to the 
corporation unless an agency suspending or debarring official has 
considered suspension or debarment of the corporation and determined 
that this further action is not necessary to protect the interests of 
the Government.

B. Certification

    This rule also adds a certification requirement regarding tax 
matters, in solicitations for which the resultant contract (including 
options) may have a value greater than $5,000,000, and that will use 
funds made available by Division B of the Consolidated and Further 
Continuing Appropriations Act, 2015 (Pub. L. 113-235) (and similar 
provisions in subsequent appropriations acts).
    Agencies funded by these acts include the Department of Commerce, 
the Department of Justice, NASA, as well as some smaller agencies.
    If the certification regarding tax matters is applicable, then the 
contracting officer shall not award any contract in an amount greater 
than $5,000,000, unless the offeror affirmatively certified in its 
offer to all the required certifications regarding tax matters in FAR 
Clause 52.209-12(b).
    This certification will not be included in the annual 
representations and certifications, because it has very limited 
application. In accordance with 41 U.S.C. 1304, the certification 
included in this regulation is specifically required by statute, and 
therefore its inclusion in the FAR does not require the written 
approval of the Administrator for Federal Procurement Policy.

C. Applicability to Commercial Items (Including Commercially Available 
Off-the-Shelf (COTS) Items) and Acquisitions Not Greater Than the 
Simplified Acquisition Threshold

    This interim rule implements sections 744 and 745 of Division E, 
Title VII, and section 523 of Division B, Title V, of the Consolidated 
and Further Continuing Appropriations Act, 2015. Sections 744 and 745 
of Division E prohibit any Federal agency from using funds appropriated 
or otherwise made available by the Act or any other act to enter into a 
contract with a corporation that has delinquent unpaid taxes or has 
been convicted of a felony criminal violation under any Federal law 
within the past 24 months, unless the Federal agency has considered 
suspension or debarment of the corporation and has made a determination 
that this further action is not necessary to protect the interests of 
the government. Section 523 of Division B, which affects Commerce, 
Justice, NASA, and some smaller agencies, requires certification with 
regard to violations of certain tax matters.
    The FAR Council and the Administrator for Federal Procurement 
Policy have determined that it is not in the best interest of the 
United States to exempt contracts for the acquisition of commercial 
items (including commercially available off-the-shelf items) or 
acquisitions in amounts not greater than the simplified acquisition 
threshold (other than the certification requirement), because it 
imposes a minimal burden (just a representation or, in limited 
instances, a certification), in contrast to the benefit of avoiding 
awarding contracts to corporations that have delinquent unpaid taxes, 
or felony convictions for violations of Federal Law, or to prospective 
contractors with other violations relating to Federal tax matters. Tax 
liability is a serious matter and Congressional hearings (e.g., the 
Permanent Subcommittee on Investigations, Committee on Homeland 
Security and Governmental Affairs, U.S. Senate, held a hearing on May 
24, 2011, entitled, ``Stimulus Contractors Who Cheat On Their Taxes: 
What Happened?,'' and the Subcommittee on Government Management, 
Organization, and Procurement, Committee on Oversight and Government 
Reform, House of Representatives held a hearing on April 19, 2007, also 
concerning Federal contractors who abuse the Federal tax system) have 
been held to identify ways to ensure that funds are not spent with 
contractors with tax delinquencies. It is in the interest of the United 
States to only award contracts to entities that are responsible and 
law-abiding.
    This determination is consistent with the current coverage in 
paragraph (h)(4) of the FAR clause at 52.212-3, Offeror Representations 
and Certifications--Commercial Items, which requires offerors to 
represent whether they have, within a three-year period preceding their 
offer, been notified of any delinquent Federal taxes in an amount that 
exceeds $3,500 for which the liability remains unsatisfied.

II. 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 a significant regulatory action and, therefore, was 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.

III. Regulatory Flexibility Act

    Although DoD, GSA, and NASA do not expect that this change will 
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., an Initial Regulatory Flexibility Analysis (IRFA) has 
been prepared and is summarized as follows:

    This action is necessary to implement sections 744 and 745 of 
Division E of the Consolidated and Continuing Further Appropriations 
Act, 2015 (Pub. L. 113-235) (and similar provisions in subsequent 
appropriations acts), to prohibit using any of the funds made 
available under that or any other act to enter a contract with any 
corporation with any delinquent Federal tax liability or a felony 
conviction, unless an agency has considered suspension or debarment 
of the corporation and has made a determination that this further 
action is not necessary to protect the interests of the Government.
    The rule also implements section 523 of Division B of the 
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. 
L. 113-235) (and similar provisions in subsequent appropriations 
acts). This section prohibits the award of any contract in an amount 
greater than $5,000,000, using funds appropriated under Division B 
of the Consolidated and Continuing Further Appropriations Act, 2015, 
unless the offeror affirmatively certifies that it has filed all 
Federal tax returns required during the three years preceding the 
certification; has not been convicted of a criminal offense under 
the Internal Revenue Code of 1986; and has not, more than 90 days 
prior to certification, been notified of any unpaid Federal tax 
assessment for which the liability remains unsatisfied, unless the 
assessment is the subject of an installment agreement or offer in 
compromise that has been approved by the Internal Revenue Service 
and is not in default, or the assessment is the subject of a non-
frivolous administrative or judicial proceeding.
    The objective of the interim rule is to prohibit award to 
entities that are delinquent in the payment of Federal taxes or have 
been convicted of a felony under Federal law. The

[[Page 75905]]

legal basis for the rule is the above cited statutes.
    Based on current data with regard to active registrants in the 
System for Award Management (SAM), the rule will apply to 
approximately 65,000 small business concerns, which are required to 
complete the annual representations and certifications at least once 
per year in order to keep their registration in SAM current.
    The information collection requirement imposed by this rule is 
minimal--it is a brief representation, and in some cases also a 
certification. Each representation is estimated to require an 
average of six minutes to complete.
    The rule does not duplicate, overlap, or conflict with any other 
Federal rules.
    DoD, GSA, and NASA were unable to identify any significant 
alternatives that would reduce the impact on small businesses and 
still meet the objectives of the statute. However, other than the 
potential for not receiving award if the small entity is delinquent 
in payment of Federal taxes or has been convicted of a felony, there 
is no significant economic impact on small entities because the 
information collection burden imposed by the rule is minimal.

    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.
    DoD, GSA, and NASA will also consider comments from small entities 
concerning the existing regulations in subparts affected by the rule in 
accordance with 5 U.S.C. 610. Interested parties must submit such 
comments separately and should cite 5 U.S.C. 610 (FAR Case 2015-011), 
in correspondence.

IV. Paperwork Reduction Act

    The Paperwork Reduction Act (44 U.S.C. Chapter 35) applies. The 
rule contains information collection requirements. The Office of 
Management and Budget (OMB) has cleared this information collection 
requirement under OMB Control Number 9000-0193, titled: Prohibition on 
Contracting with Corporations with Delinquent Taxes or a Felony 
Conviction.

A. Public Reporting Burden

    The public reporting burden for this collection of information is 
estimated to average .1 hours per response, including the time for 
reviewing instructions, searching existing data sources, gathering and 
maintaining the data needed, and completing and reviewing the 
collection of information.
1. 52.209-11 Representation
    The annual reporting burden for 52.209-11 is estimated as follows:
    Respondents: 352,000.
    Responses per respondent: Approximately 1.01.
    Total annual responses: 355,520.
    Preparation hours per response: .1 hours.
    Total response Burden Hours: 35,552.
2. 52.209-12 Certification
    The annual reporting burden for 52.209-12 is estimated as follows:
    Respondents: 440.
    Responses per respondent: 3.
    Total annual responses: 1,320.
    Preparation hours per response: .1 hours.
    Total response Burden Hours: 132.
3. Total
    The average annual reporting burden is estimated as follows:
    Total annual responses: 356,840.
    Preparation hours per response: .1 hours.
    Total response Burden Hours: 35,684.

B. Request for Comments Regarding Paperwork Burden

    Submit comments, including suggestions for reducing this burden, 
not later than February 2, 2016 to: FAR Desk Officer, OMB, Room 10102, 
NEOB, Washington, DC 20503, and a copy to the General Services 
Administration, Regulatory Secretariat Division (MVCB), ATTN: Ms. 
Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-0001.
    Public comments are particularly invited on: Whether this 
collection of information is necessary for the proper performance of 
functions of the FAR, and will have practical utility; whether our 
estimate of the public burden of this collection of information is 
accurate, and based on valid assumptions and methodology; ways to 
enhance the quality, utility, and clarity of the information to be 
collected; and ways in which we can minimize the burden of the 
collection of information on those who are to respond, through the use 
of appropriate technological collection techniques or other forms of 
information technology.
    Requesters may obtain a copy of the supporting statement from the 
General Services Administration, Regulatory Secretariat Divison (MVCB), 
ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor, Washington, DC 20405-
0001. Please cite OMB Control Number 9000-0193, Prohibition on 
Contracting with Corporations with Delinquent Taxes or a Felony 
Conviction, in all correspondence.

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. This action 
is necessary because these appropriations act restrictions apply to all 
funds appropriated under the respective acts, and it is important to 
provide immediate direction to contracting officers, so that they do 
not inadvertently violate the conditions placed upon the expenditure of 
the funds. The effective date is set as February 26, 2016, to allow the 
Government to conform its procurement databases. 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 Parts 1, 4, 9, 12, and 52

    Government procurement.

    Dated: November 20, 2015.
William F. Clark,
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 1, 4, 9, 12, and 52 
as set forth below:

0
1. The authority citation for 48 CFR parts 1, 4, 9, 12, 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 1--FEDERAL ACQUISITION REGULATIONS SYSTEM


1.106  [Amended]

0
2. Amend section 1.106 in the table following the introductory text by 
adding, in sequence, FAR segments ``52.209-11'' and ``52.209-12'' and 
their corresponding OMB Control number ``9000-0193''.

PART 4--ADMINISTRATIVE MATTERS

0
3. Amend section 4.1202 by redesignating paragraphs (a)(8) through (29) 
as paragraphs (a)(9) through (30), respectively; and adding a new 
paragraph (a)(8) to read as follows:


4.1202  Solicitation provision and contract clause.

    (a) * * *

[[Page 75906]]

    (8) 52.209-11, Representation by Corporations Regarding Delinquent 
Tax Liability or a Felony Conviction under any Federal Law.
* * * * *

PART 9--CONTRACTOR QUALIFICATIONS

0
4. Amend section 9.104-5 by revising the section heading and paragraph 
(b) and adding paragraphs (c) and (d) to read as follows:


9.104-5  Representation and certifications regarding responsibility 
matters.

* * * * *
    (b) The provision at 52.209-11, Representation by Corporations 
Regarding Delinquent Tax Liability or a Felony Conviction under any 
Federal Law, implements sections 744 and 745 of Division E of the 
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. L. 
113-235) (and similar provisions in subsequent appropriations acts). 
When an offeror provides an affirmative response in paragraph (b)(1) or 
(2) of the provision at 52.209-11 or paragraph (q)(2)(i) or (ii) of 
provision 52.212-3, the contracting officer shall--
    (1) Promptly, upon receipt of offers, request such additional 
information from the offeror as the offeror deems necessary in order to 
demonstrate the offeror's responsibility to the contracting officer 
(but see 9.405);
    (2) Notify, in accordance with agency procedures (see 9.406-3(a) 
and 9.407-3(a)), the agency official responsible for initiating 
debarment or suspension action; and
    (3) Not award to the corporation unless an agency suspending or 
debarring official has considered suspension or debarment of the 
corporation and made a determination that suspension or debarment is 
not necessary to protect the interests of the Government.
    (c) If the provision at 52.209-12, Certification Regarding Tax 
Matters, is applicable (see 9.104-7(e)), then the contracting officer 
shall not award any contract in an amount greater than $5,000,000, 
unless the offeror affirmatively certified in its offer, as required by 
paragraph (b)(1), (2), and (3) of the provision.
    (d) Offerors who do not furnish the representation or 
certifications or such information as may be requested by the 
contracting officer shall be given an opportunity to remedy the 
deficiency. Failure to furnish the representation or certifications or 
such information may render the offeror nonresponsible.

0
5. Amend section 9.104-7 by adding paragraphs (d) and (e) to read as 
follows:


9.104-7  Solicitation provisions and contract clauses.

* * * * *
    (d) The contracting officer shall insert the provision 52.209-11, 
Representation by Corporations Regarding Delinquent Tax Liability or a 
Felony Conviction under any Federal Law, in all solicitations.
    (e) For agencies receiving funds subject to section 523 of Division 
B of the Consolidated and Further Continuing Appropriations Act, 2015 
(Pub. L. 113-235) and similar provisions in subsequent appropriations 
acts, the contracting officer shall insert the provision 52.209-12, 
Certification Regarding Tax Matters, in solicitations for which the 
resultant contract (including options) may have a value greater than 
$5,000,000. Division B of the Consolidated and Continuing Further 
Appropriations Act, 2015 appropriates funds for the following agencies: 
The Department of Commerce, the Department of Justice, the National 
Aeronautics and Space Administration, the Office of Science and 
Technology Policy, the National Science Foundation, the Commission on 
Civil Rights, the Equal Employment Opportunity Commission, the U.S. 
International Trade Commission, the Legal Services Corporation, the 
Marine Mammal Commission, the Office of the United States Trade 
Representative, and the State Justice Institute.

PART 12--ACQUISITION OF COMMERCIAL ITEMS

0
6. Amend section 12.301 by redesignating paragraphs (d)(4) through (6) 
as paragraphs (d)(5) through (7), respectively, and adding a new 
paragraph (d)(4) to read as follows:


12.301  Solicitation provisions and contract clauses for the 
acquisition of commercial items.

* * * * *
    (d) * * *
    (4) Insert the provision at 52.209-12, Certification Regarding Tax 
Matters, as prescribed at 9.104-7(e).
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
7. Amend section 52.204-8 by--
0
a. Revising the date of the provision;
0
b. Redesignating paragraphs (c)(1)(vii) through (xxi) as (c)(1)(viii) 
through (xxii), respectively; and
0
c. Adding a new paragraph (c)(1)(vii).
    The revision and addition read as follows:


52.204-8  Annual Representations and Certifications.

* * * * *

Annual Representations and Certifications (Feb 2016)

* * * * *
    (c)(1) * * *
    (vii) 52.209-11, Representation by Corporations Regarding 
Delinquent Tax Liability or a Felony Conviction under any Federal 
Law. This provision applies to all solicitations.
* * * * *

0
8. Add sections 52.209-11 and 52.209-12 to read as follows:


52.209-11  Representation by Corporations Regarding Delinquent Tax 
Liability or a Felony Conviction under any Federal Law.

    As prescribed in 9.104-7(d), insert the following provision:

Representation by Corporations Regarding Delinquent Tax Liability or a 
Felony Conviction under any Federal Law (Feb 2016)

    (a) As required by sections 744 and 745 of Division E of the 
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. 
L. 113-235), and similar provisions, if contained in subsequent 
appropriations acts, the Government will not enter into a contract 
with any corporation that--
    (1) Has any unpaid Federal tax liability that has been assessed, 
for which all judicial and administrative remedies have been 
exhausted or have lapsed, and that is not being paid in a timely 
manner pursuant to an agreement with the authority responsible for 
collecting the tax liability, where the awarding agency is aware of 
the unpaid tax liability, unless an agency has considered suspension 
or debarment of the corporation and made a determination that 
suspension or debarment is not necessary to protect the interests of 
the Government; or
    (2) Was convicted of a felony criminal violation under any 
Federal law within the preceding 24 months, where the awarding 
agency is aware of the conviction, unless an agency has considered 
suspension or debarment of the corporation and made a determination 
that this action is not necessary to protect the interests of the 
Government.
    (b) The Offeror represents that--
    (1) It is [ ] is not [ ] a corporation that has any unpaid 
Federal tax liability that has been assessed, for which all judicial 
and administrative remedies have been exhausted or have lapsed, and 
that is not being paid in a timely manner pursuant to an agreement 
with the authority responsible for collecting the tax liability; and
    (2) It is [ ] is not [ ] a corporation that was convicted of a 
felony criminal violation under a Federal law within the preceding 
24 months.


(End of provision)


52.209-12  Certification Regarding Tax Matters.

    As prescribed in 9.104-7(e), insert the following provision:

[[Page 75907]]

Certification Regarding Tax Matters (Feb 2016)

    (a) This provision implements section 523 of Division B of the 
Consolidated and Further Continuing Appropriations Act, 2015 (Pub. 
L. 113-235), and similar provisions, if contained in subsequent 
appropriations acts.
    (b) If the Offeror is proposing a total contract price that will 
exceed $5,000,000 (including options), the Offeror shall certify 
that, to the best of its knowledge and belief, it--
    (1) Has [ ] filed all Federal tax returns required during the 
three years preceding the certification;
    (2) Has not [ ] been convicted of a criminal offense under the 
Internal Revenue Code of 1986; and
    (3) Has not [ ], more than 90 days prior to certification, been 
notified of any unpaid Federal tax assessment for which the 
liability remains unsatisfied, unless the assessment is the subject 
of an installment agreement or offer in compromise that has been 
approved by the Internal Revenue Service and is not in default, or 
the assessment is the subject of a non-frivolous administrative or 
judicial proceeding.


(End of provision)


0
9. Amend section 52.212-3 by--
0
a. Revising the date of the provision;
0
b. Removing from the introductory text and the first undesignated 
paragraph in paragraph (b)(2) ``through p'' and adding ``though q'' in 
their places, respectively; and
0
c. Adding paragraph (q).
    The revision and addition read as follows:


52.212-3  Offeror Representations and Certifications--Commercial Items.

* * * * *

Offeror Representations and Certifications--Commercial Items (Feb 2016)

* * * * *
    (q) Representation by Corporations Regarding Delinquent Tax 
Liability or a Felony Conviction under any Federal Law. (1) As 
required by sections 744 and 745 of Division E of the Consolidated 
and Further Continuing Appropriations Act, 2015 (Pub. L. 113-235), 
and similar provisions, if contained in subsequent appropriations 
acts, The Government will not enter into a contract with any 
corporation that--
    (i) Has any unpaid Federal tax liability that has been assessed, 
for which all judicial and administrative remedies have been 
exhausted or have lapsed, and that is not being paid in a timely 
manner pursuant to an agreement with the authority responsible for 
collecting the tax liability, where the awarding agency is aware of 
the unpaid tax liability, unless an agency has considered suspension 
or debarment of the corporation and made a determination that 
suspension or debarment is not necessary to protect the interests of 
the Government; or
    (ii) Was convicted of a felony criminal violation under any 
Federal law within the preceding 24 months, where the awarding 
agency is aware of the conviction, unless an agency has considered 
suspension or debarment of the corporation and made a determination 
that this action is not necessary to protect the interests of the 
Government.
    (2) The Offeror represents that--
    (i) It is [ ] is not [ ] a corporation that has any unpaid 
Federal tax liability that has been assessed, for which all judicial 
and administrative remedies have been exhausted or have lapsed, and 
that is not being paid in a timely manner pursuant to an agreement 
with the authority responsible for collecting the tax liability; and
    (ii) It is [ ] is not [ ] a corporation that was convicted of a 
felony criminal violation under a Federal law within the preceding 
24 months.


(End of provision)

[FR Doc. 2015-30456 Filed 12-3-15; 8:45 am]
BILLING CODE 6820-EP-P