Federal Acquisition Regulation: Violations of Arms Control Treaties or Agreements With the United States, 3677-3679 [2020-29086]
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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
GENERAL SERVICES
ADMINISTRATION
reviewed the public comments in the
development of the final rule. A
discussion of the comments and the
changes to the rule as a result of those
comments are provided as follows:
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
A. Summary of Changes
DEPARTMENT OF DEFENSE
48 CFR Parts 9 and 52
[FAC 2021–03; FAR Case 2017–018; Item
I; Docket No. FAR–2017–0018; Sequence
No. 1]
RIN 9000–AN57
Federal Acquisition Regulation:
Violations of Arms Control Treaties or
Agreements With the United States
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
DoD, GSA, and NASA are
adopting as final, with changes, an
interim rule amending the Federal
Acquisition Regulation (FAR) to
implement a section of the National
Defense Authorization Act for Fiscal
Year 2017 that addresses measures
against persons involved in activities
that violate arms control treaties or
agreements with the United States.
DATES: Effective: February 16, 2021.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949 or
michaelo.jackson@gsa.gov for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at 202–501–4755 or
GSARegSec@gsa.gov. Please cite FAC
2021–03, FAR Case 2017–018.
SUPPLEMENTARY INFORMATION:
SUMMARY:
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I. Background
DoD, GSA, and NASA issued an
interim rule at 83 FR 28145 on June 15,
2018, to implement 22 U.S.C. 2593e, as
added by section 1290 of the National
Defense Authorization Act for Fiscal
Year 2017 (Pub. L. 114–328). 22 U.S.C.
2593e addresses measures against
persons involved in activities that
violate arms control treaties or
agreements with the United States and
applicable remedies for determining
that a person has submitted a false
certification regarding such activities.
One respondent submitted comments on
the interim rule.
II. Discussion and Analysis
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (the Councils)
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The final rule:
1. Clarifies, at FAR 9.405, the effect of
an ineligibility determination under 22
U.S.C. 2593e. Conforming changes are
made at FAR 9.400(b) and 9.405–2(a).
2. Enumerates causes of suspension
and debarment at FAR 9.406–2(b)(1)(vii)
and 9.407–2(a)(9).
3. Clarifies at FAR 9.406–4(a)(1)(iii)
that the minimum period of debarment
of not less than two years, as statutorily
mandated by 22 U.S.C. 2593e, for
violation of arms control treaties or
agreements with the United States is
inclusive of any suspension period, if
suspension precedes the debarment per
FAR 9.406–4(a)(2). A conforming
change is also made at FAR 9.109–4(d).
4. Corrects the threshold at FAR
52.209–13 regarding application of the
certification requirement.
B. Analysis of Public Comments
1. Causes for suspension and
debarment.
Comment: The respondent
recommended addition of new causes to
the lists of causes for debarment and
suspension at FAR 9.406–2 and 9.407–
2, respectively, to include determination
of a false certification regarding
violations of arms control treaties or
agreements with the United States
under FAR 52.209–13.
Response: The Councils have added
the causes at FAR 9.406–2(b)(1)(vii) and
9.407–2(a)(9), as recommended. This
change is in line with FAR 9.109–4(d)
and reflects statutory remedies under 22
U.S.C. 2593e.
2. Period of debarment.
Comment: The respondent
recommended that FAR 9.406–
4(a)(1)(iii) should also specify that the
statutory requirement for the 2-year
minimum debarment period is inclusive
of a suspension period, if suspension
precedes a debarment. This is consistent
with FAR 9.406–4(a)(2), which states
that if suspension precedes a
debarment, the suspension period shall
be considered in determining the
debarment period.
The respondent also recommended
changing the reference in this paragraph
from ‘‘9.109–4(d)’’ to the newly
proposed ‘‘9.406–2(b)(1)(vii)’’, because
any suspension or debarment resulting
from determination of a false
certification under FAR 52.209–13 will
be pursued under FAR subpart 9.4.
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Response: The Councils are making
the changes to FAR 9.406–4(a)(1)(iii) as
recommended by the respondent.
Suspension as a remedy for
determination of a false certification
under FAR 52.209–13 continues to
follow FAR 9.407–4(b), which limits the
maximum period of suspension to 18
months.
3. Certification by the offeror.
Comment: The respondent
recommended an edit to FAR 9.109–4(d)
to refer more broadly to FAR subpart
9.4, rather than specifying ‘‘subject to
procedures set forth in subpart 9.4
(including 9.406–1 and 9.407–1)’’. The
respondent was concerned that the
reference to ‘‘procedures’’ set forth in
FAR subpart 9.4 might be too narrowly
interpreted as only applying to the
‘‘Procedures’’ subheading titles of FAR
9.406–3 and 9.407–3.
Response: The Councils are removing
‘‘the procedures’’ language to have FAR
9.109–4(d) refer generally to subpart 9.4.
4. Effect of listing.
Comment: The respondent
commented that the change to FAR
9.405(b) in the interim rule was
unnecessary, because FAR 9.405(b)
already states that contractors included
in System for Award Management
(SAM) exclusions as being ineligible on
the basis of statutory procedures are
excluded under the conditions and
period set forth in the regulation.
Specific statutory prohibitions that are
not issued under FAR subpart 9.4
procedures to date have not been
incorporated into FAR subpart 9.4, and
the scope of those debarments are not
specifically addressed in FAR section
9.405. The respondent further
recommended that if the interim rule
revisions to FAR 9.405 are retained,
then the provisions should be edited to
mirror the statutory language, which
also prohibits agencies from entering
into and renewing contracts with these
entities.
Response: The Councils decided to
retain the language at FAR 9.405 and
adopted the respondent’s change by
adding ‘‘enter into’’ and ‘‘renew’’. Also,
the Councils adopted the respondent’s
recommendation to break out the
paragraph by adding a new paragraph
(c).
III. Applicability to Contracts at or
Below the Simplified Acquisition
Threshold (SAT) and for Commercial
Items, Including Commercially
Available Off-the-Shelf (COTS) Items
Consistent with 41 U.S.C. 1905—
1907, the interim rule did not apply the
certification required by 22 U.S.C. 2593e
to contracts at or below the simplified
acquisition threshold (SAT), or to
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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
contracts for the acquisition of
commercial items, including
commercially available off-the-shelf
(COTS) items. However, when acquiring
products or services, the Government is
still prohibited from contracting with
entities listed as excluded in the SAM.
Similarly, this final rule does not affect
the applicability of the certification
required by 22 U.S.C. 2593e, as
implemented in FAR 52.209–13, to
contracts at or below the SAT, or to
contracts for the acquisition of
commercial items, including COTS
items.
IV. 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.
V. Executive Order 13771
This rule is not subject to E.O. 13771,
Reducing Regulation and Controlling
Regulatory Costs, because this rule is
not a significant regulatory action under
E.O. 12866.
VI. Regulatory Flexibility Act
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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:
This final rule is necessary to implement
changes to the interim rule published at 83
FR 28145. The interim rule amended the FAR
to implement section 1290 of the National
Defense Authorization Act for Fiscal Year
2017 (Pub. L. 114–328). The objective of this
rule is to provide a response to public
comments on the interim rule by clarifying
the suspension and debarment remedies for
determination of a false certification under
22 U.S.C. 2593e. In addition to the
aforementioned, this final rule makes some
other technical corrections to the interim
rule.
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. This final rule makes
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changes to the interim rule published at 83
FR 28145 on June 15, 2018. The objective of
this rule is to provide a response to public
comments on the interim rule by clarifying
the suspension and debarment remedies for
determination of a false certification under
22 U.S.C. 2593e, specifically those related to
suspension and debarment under FAR
subpart 9.4. No significant issues were raised
by public comments in response to the initial
regulatory flexibility analysis.
Using FPDS data for FY 2017, 2018, and
2019, this rule applies to 19,511 small
entities. Of this number, an average of 6,504
small entities annually are required to fill out
the certification.
This final rule requires certification from
each offeror that submits an offer in response
to a Government solicitation that exceeds the
simplified acquisition threshold and is not
for the acquisition of a commercial item,
including COTS items.
Estimated burden hours are 11,106 hours
per year for the first certification by an
average of 6,504 small entities. The final rule
adds determination of a false certification
under FAR 52.209–13 as an enumerated
cause for both suspension and debarment. It
was clear from the interim rule that cause for
suspension and debarment was part of the
remedy for determination of a false
certification, however, the cause was not
enumerated under FAR 9.407–2 and 9.406–
2, respectively. This revision has no impact
(or low impact) on small business entities as
it provides additional clarifications without
adding a new burden.
The rule does not duplicate, overlap, or
conflict with any other Federal rules.
DoD, GSA, and NASA considered whether
to apply the certification provision to
contracts at or below the SAT and to the
acquisition of commercial items, including
COTS items, or to exempt such acquisitions
in accordance with 41 U.S.C. 1905—1907.
The FAR Council and the Administrator for
Federal Procurement Policy did not sign
determinations that the provision should
apply to contracts at or below the SAT and
to the acquisition of commercial items,
including COTS items, thus minimizing the
impact on small business to the extent
permitted by law.
Interested parties may obtain a copy
of the FRFA from the Regulatory
Secretariat Division. The Regulatory
Secretariat Division has submitted a
copy of the FRFA to the Chief Counsel
for Advocacy of the Small Business
Administration.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44
U.S.C. chapter 35) does apply; however,
these changes to the FAR do not impose
additional information collection
requirements to the paperwork burden
previously approved under OMB
Control Number 9000–0198, titled:
Violations of Arms Control Treaties or
Agreements.
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List of Subjects in 48 CFR Parts 9 and
52
Government procurement.
William F. Clark,
Director, Office of Government-wide
Acquisition Policy, Office of Acquisition
Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA
adopt the interim rule published June
15, 2018, as final with amendments to
48 CFR parts 9 and 52 as set forth
below:
■ 1. The authority citation for 48 CFR
parts 9 and 52 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C.
chapter 137; and 51 U.S.C. 20113.
PART 9—CONTRACTOR
QUALIFICATIONS
2. Amend section 9.109–4 by—
a. Removing from the last sentence in
paragraph (a)(1)(i) ‘‘via the internet at’’
and adding ‘‘at’’ in its place; and
■ b. Revising paragraph (d).
The revision reads as follows:
■
■
9.109–4
Certification by the offeror.
*
*
*
*
*
(d) Upon the determination of a false
certification under 52.209–13, an offeror
will be subject to such remedies as
suspension or debarment under subpart
9.4, or termination of any contract
resulting from the false certification.
Debarments pursued as a remedy under
subpart 9.4 shall be for a period of not
less than 2 years, inclusive of any
suspension period, if suspension
precedes a debarment (see 9.406–
4(a)(1)(iii) and (a)(2)).
*
*
*
*
*
9.400
[Amended]
3. Amend section 9.400 by removing
from paragraph (b) ‘‘(9.405(b))’’ and
adding ‘‘(9.405)’’ in its place.
■ 4. Amend section 9.405 by—
■ a. Removing the last sentence from
paragraph (b);
■ b. Redesignating paragraphs (c) and
(d) as paragraphs (d) and (e); and
■ c. Adding a new paragraph (c) to read
as follows:
■
9.405
Effect of listing.
*
*
*
*
*
(c) Agencies shall not enter into,
renew, or extend contracts with
contractors that have been declared
ineligible pursuant to 22 U.S.C. 2593e.
*
*
*
*
*
9.405–2
[Amended]
5. Amend section 9.405–2 by
removing from paragraph (a) ‘‘9.405(b)’’
and adding ‘‘9.405’’ in its place.
■
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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations
6. Amend section 9.406–2 by adding
paragraph (b)(1)(vii) to read as follows:
■
9.406–2
II. Discussion and Analysis
DEPARTMENT OF DEFENSE
GENERAL SERVICES
ADMINISTRATION
Causes for debarment.
*
*
*
*
(b) * * *
(1) * * *
(vii) Determination of a false
certification under 52.209–13, Violation
of Arms Control Treaties or AgreementsCertification.
*
*
*
*
*
*
7. Amend section 9.406–4 by revising
paragraph (a)(1)(iii) to read as follows:
NATIONAL AERONAUTICS AND
SPACE ADMINISTRATION
48 CFR Parts 12, 13, 15, 16, and 37
[FAC 2021–03; FAR Case 2018–016; Item
II; Docket No. FAR–2018–0016, Sequence
No. 1]
■
9.406–4
Period of debarment.
Department of Defense (DoD),
General Services Administration (GSA),
and National Aeronautics and Space
Administration (NASA).
ACTION: Final rule.
AGENCY:
8. Amend section 9.407–2 by—
a. Redesignating paragraph (a)(9) as
(a)(10); and
■ b. Adding a new paragraph (a)(9) to
read as follows:
■
Causes for suspension.
(a) * * *
(9) Determination of a false
certification under 52.209–13, Violation
of Arms Control Treaties or AgreementsCertification.
*
*
*
*
*
PART 52—SOLICITATION PROVISIONS
AND CONTRACT CLAUSES
9. Amend section 52.209–13 by—
a. Revising the date of the provision;
■ b. Removing from paragraph (a)
‘‘acquisitions below’’ and adding
‘‘acquisitions at or below’’ in its place;
■ c. Removing from paragraph (b)(1)(i)
‘‘available via the internet at’’ and
adding ‘‘available at’’ in its place; and
■ d. Removing from paragraph (b)(1)(ii)
‘‘available via the internet at’’ and
adding ‘‘available at’’ in its place.
The revision reads as follows:
■
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■
52.209–13 Violation of Arms Control
Treaties or Agreements-Certification.
*
*
*
*
*
Violation of Arms Control Treaties or
Agreements—Certification (Feb 2021)
*
*
*
*
*
[FR Doc. 2020–29086 Filed 1–13–21; 8:45 am]
BILLING CODE 6820–EP–P
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DoD, GSA, and NASA are
issuing a final rule amending the
Federal Acquisition Regulation (FAR) to
implement a section of the John S.
McCain National Defense Authorization
Act for Fiscal Year 2019 that applies
criteria for and limitations on the use of
the lowest price technically acceptable
source selection criteria in solicitations.
DATES: Effective: February 16, 2021.
FOR FURTHER INFORMATION CONTACT: Mr.
Michael O. Jackson, Procurement
Analyst, at 202–208–4949 or
Michaelo.jackson@gsa.gov for
clarification of content. For information
pertaining to status or publication
schedules, contact the Regulatory
Secretariat Division at (202) 501–4755
or GSARegSec@gsa.gov. Please cite FAC
2021–03, FAR Case 2018–016.
SUPPLEMENTARY INFORMATION:
SUMMARY:
■
9.407–2
RIN 9000–AN75
Federal Acquisition Regulation:
Lowest Price Technically Acceptable
Source Selection Process
(a) * * *
(1) * * *
(iii) Debarments under 9.406–
2(b)(1)(vii) shall be for a period of not
less than 2 years, inclusive of any
suspension period, if suspension
precedes a debarment (see paragraph
(a)(2) of this section).
*
*
*
*
*
I. Background
DoD, GSA, and NASA published a
proposed rule at 84 FR 52425 on
October 2, 2019, to implement section
880 of the John S. McCain National
Defense Authorization Act (NDAA) for
Fiscal Year (FY) 2019 (Pub. L. 115–232,
41 U.S.C. 3701 Note). Section 880
specifies the criteria that must be met in
order to include lowest price technically
acceptable (LPTA) source selection
criteria in a solicitation; and requires
solicitations predominantly for the
acquisition of certain services and
supplies to avoid the use of LPTA
source selection criteria, to the
maximum extent practicable. Nine
respondents submitted public
comments in response to the proposed
rule.
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3679
The Civilian Agency Acquisition
Council and the Defense Acquisition
Regulations Council (the Councils)
reviewed the public comments in the
development of the final rule.
A. Summary of Significant Changes
From the Proposed Rule
No changes were made to the final
rule as a result of public comments.
Minor edits were made to the final rule
to account for baseline updates and to
add the full name of the applicable
statute. A discussion of the comments is
provided as follows:
B. Analysis of Public Comments
Comment: Respondents expressed
support for the rule and advised that the
rule is beneficial to the small business
community and provides them with a
greater opportunity to compete in the
Federal marketplace.
Response: The Councils acknowledge
support for the rule.
Comment: Respondents expressed
support for using the LPTA source
selection process, when its use is
appropriate and the selection criteria
can be well-defined.
Response: The Councils agree that use
of the LPTA source selection process is
a valuable part of the best value
continuum and an acceptable and
appropriate source selection approach
for many acquisitions.
Comment: Respondents expressed
concern that the rule will be considered
a complete ban on the use of the LPTA
source selection process. A respondent
is specifically concerned that the use of
the LPTA source selection process is
prohibited for a significant number of
information technology (IT) supplies
and services that can be appropriately
purchased using the process. As a
result, the respondent recommends that
the rule not be implemented, or be
revised to narrow the scope of IT
products and services to which the rule
applies, because the rule, as proposed,
will result in increased acquisition lead
times and higher prices without a
corresponding increase in quality of
services.
Response: It is not the intent of the
rule to prohibit the use of the LPTA
source selection process. Instead, the
intent of the rule is to implement the
statutory language, which aims to
identify circumstances that must exist
for an acquisition to use the LPTA
source selection process and certain
types of requirements that will regularly
benefit from the use of tradeoff source
selection procedures. Specifically,
section 880 requires use of the LPTA
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]]>Agencies
[Federal Register Volume 86, Number 9 (Thursday, January 14, 2021)]
[Rules and Regulations]
[Pages 3677-3679]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-29086]
[[Page 3677]]
-----------------------------------------------------------------------
DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9 and 52
[FAC 2021-03; FAR Case 2017-018; Item I; Docket No. FAR-2017-0018;
Sequence No. 1]
RIN 9000-AN57
Federal Acquisition Regulation: Violations of Arms Control
Treaties or Agreements With the United States
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: DoD, GSA, and NASA are adopting as final, with changes, an
interim rule amending the Federal Acquisition Regulation (FAR) to
implement a section of the National Defense Authorization Act for
Fiscal Year 2017 that addresses measures against persons involved in
activities that violate arms control treaties or agreements with the
United States.
DATES: Effective: February 16, 2021.
FOR FURTHER INFORMATION CONTACT: Mr. Michael O. Jackson, Procurement
Analyst, at 202-208-4949 or [email protected] for clarification
of content. For information pertaining to status or publication
schedules, contact the Regulatory Secretariat Division at 202-501-4755
or [email protected]. Please cite FAC 2021-03, FAR Case 2017-018.
SUPPLEMENTARY INFORMATION:
I. Background
DoD, GSA, and NASA issued an interim rule at 83 FR 28145 on June
15, 2018, to implement 22 U.S.C. 2593e, as added by section 1290 of the
National Defense Authorization Act for Fiscal Year 2017 (Pub. L. 114-
328). 22 U.S.C. 2593e addresses measures against persons involved in
activities that violate arms control treaties or agreements with the
United States and applicable remedies for determining that a person has
submitted a false certification regarding such activities. One
respondent submitted comments on the interim rule.
II. Discussion and Analysis
The Civilian Agency Acquisition Council and the Defense Acquisition
Regulations Council (the Councils) reviewed the public comments in the
development of the final rule. A discussion of the comments and the
changes to the rule as a result of those comments are provided as
follows:
A. Summary of Changes
The final rule:
1. Clarifies, at FAR 9.405, the effect of an ineligibility
determination under 22 U.S.C. 2593e. Conforming changes are made at FAR
9.400(b) and 9.405-2(a).
2. Enumerates causes of suspension and debarment at FAR 9.406-
2(b)(1)(vii) and 9.407-2(a)(9).
3. Clarifies at FAR 9.406-4(a)(1)(iii) that the minimum period of
debarment of not less than two years, as statutorily mandated by 22
U.S.C. 2593e, for violation of arms control treaties or agreements with
the United States is inclusive of any suspension period, if suspension
precedes the debarment per FAR 9.406-4(a)(2). A conforming change is
also made at FAR 9.109-4(d).
4. Corrects the threshold at FAR 52.209-13 regarding application of
the certification requirement.
B. Analysis of Public Comments
1. Causes for suspension and debarment.
Comment: The respondent recommended addition of new causes to the
lists of causes for debarment and suspension at FAR 9.406-2 and 9.407-
2, respectively, to include determination of a false certification
regarding violations of arms control treaties or agreements with the
United States under FAR 52.209-13.
Response: The Councils have added the causes at FAR 9.406-
2(b)(1)(vii) and 9.407-2(a)(9), as recommended. This change is in line
with FAR 9.109-4(d) and reflects statutory remedies under 22 U.S.C.
2593e.
2. Period of debarment.
Comment: The respondent recommended that FAR 9.406-4(a)(1)(iii)
should also specify that the statutory requirement for the 2-year
minimum debarment period is inclusive of a suspension period, if
suspension precedes a debarment. This is consistent with FAR 9.406-
4(a)(2), which states that if suspension precedes a debarment, the
suspension period shall be considered in determining the debarment
period.
The respondent also recommended changing the reference in this
paragraph from ``9.109-4(d)'' to the newly proposed ``9.406-
2(b)(1)(vii)'', because any suspension or debarment resulting from
determination of a false certification under FAR 52.209-13 will be
pursued under FAR subpart 9.4.
Response: The Councils are making the changes to FAR 9.406-
4(a)(1)(iii) as recommended by the respondent. Suspension as a remedy
for determination of a false certification under FAR 52.209-13
continues to follow FAR 9.407-4(b), which limits the maximum period of
suspension to 18 months.
3. Certification by the offeror.
Comment: The respondent recommended an edit to FAR 9.109-4(d) to
refer more broadly to FAR subpart 9.4, rather than specifying ``subject
to procedures set forth in subpart 9.4 (including 9.406-1 and 9.407-
1)''. The respondent was concerned that the reference to ``procedures''
set forth in FAR subpart 9.4 might be too narrowly interpreted as only
applying to the ``Procedures'' subheading titles of FAR 9.406-3 and
9.407-3.
Response: The Councils are removing ``the procedures'' language to
have FAR 9.109-4(d) refer generally to subpart 9.4.
4. Effect of listing.
Comment: The respondent commented that the change to FAR 9.405(b)
in the interim rule was unnecessary, because FAR 9.405(b) already
states that contractors included in System for Award Management (SAM)
exclusions as being ineligible on the basis of statutory procedures are
excluded under the conditions and period set forth in the regulation.
Specific statutory prohibitions that are not issued under FAR subpart
9.4 procedures to date have not been incorporated into FAR subpart 9.4,
and the scope of those debarments are not specifically addressed in FAR
section 9.405. The respondent further recommended that if the interim
rule revisions to FAR 9.405 are retained, then the provisions should be
edited to mirror the statutory language, which also prohibits agencies
from entering into and renewing contracts with these entities.
Response: The Councils decided to retain the language at FAR 9.405
and adopted the respondent's change by adding ``enter into'' and
``renew''. Also, the Councils adopted the respondent's recommendation
to break out the paragraph by adding a new paragraph (c).
III. Applicability to Contracts at or Below the Simplified Acquisition
Threshold (SAT) and for Commercial Items, Including Commercially
Available Off-the-Shelf (COTS) Items
Consistent with 41 U.S.C. 1905--1907, the interim rule did not
apply the certification required by 22 U.S.C. 2593e to contracts at or
below the simplified acquisition threshold (SAT), or to
[[Page 3678]]
contracts for the acquisition of commercial items, including
commercially available off-the-shelf (COTS) items. However, when
acquiring products or services, the Government is still prohibited from
contracting with entities listed as excluded in the SAM. Similarly,
this final rule does not affect the applicability of the certification
required by 22 U.S.C. 2593e, as implemented in FAR 52.209-13, to
contracts at or below the SAT, or to contracts for the acquisition of
commercial items, including COTS items.
IV. 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.
V. Executive Order 13771
This rule is not subject to E.O. 13771, Reducing Regulation and
Controlling Regulatory Costs, because this rule is not a significant
regulatory action under E.O. 12866.
VI. 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:
This final rule is necessary to implement changes to the interim
rule published at 83 FR 28145. The interim rule amended the FAR to
implement section 1290 of the National Defense Authorization Act for
Fiscal Year 2017 (Pub. L. 114-328). The objective of this rule is to
provide a response to public comments on the interim rule by
clarifying the suspension and debarment remedies for determination
of a false certification under 22 U.S.C. 2593e. In addition to the
aforementioned, this final rule makes some other technical
corrections to the interim rule.
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.
This final rule makes changes to the interim rule published at 83 FR
28145 on June 15, 2018. The objective of this rule is to provide a
response to public comments on the interim rule by clarifying the
suspension and debarment remedies for determination of a false
certification under 22 U.S.C. 2593e, specifically those related to
suspension and debarment under FAR subpart 9.4. No significant
issues were raised by public comments in response to the initial
regulatory flexibility analysis.
Using FPDS data for FY 2017, 2018, and 2019, this rule applies
to 19,511 small entities. Of this number, an average of 6,504 small
entities annually are required to fill out the certification.
This final rule requires certification from each offeror that
submits an offer in response to a Government solicitation that
exceeds the simplified acquisition threshold and is not for the
acquisition of a commercial item, including COTS items.
Estimated burden hours are 11,106 hours per year for the first
certification by an average of 6,504 small entities. The final rule
adds determination of a false certification under FAR 52.209-13 as
an enumerated cause for both suspension and debarment. It was clear
from the interim rule that cause for suspension and debarment was
part of the remedy for determination of a false certification,
however, the cause was not enumerated under FAR 9.407-2 and 9.406-2,
respectively. This revision has no impact (or low impact) on small
business entities as it provides additional clarifications without
adding a new burden.
The rule does not duplicate, overlap, or conflict with any other
Federal rules.
DoD, GSA, and NASA considered whether to apply the certification
provision to contracts at or below the SAT and to the acquisition of
commercial items, including COTS items, or to exempt such
acquisitions in accordance with 41 U.S.C. 1905--1907. The FAR
Council and the Administrator for Federal Procurement Policy did not
sign determinations that the provision should apply to contracts at
or below the SAT and to the acquisition of commercial items,
including COTS items, thus minimizing the impact on small business
to the extent permitted by law.
Interested parties may obtain a copy of the FRFA from the
Regulatory Secretariat Division. The Regulatory Secretariat Division
has submitted a copy of the FRFA to the Chief Counsel for Advocacy of
the Small Business Administration.
VII. Paperwork Reduction Act
The Paperwork Reduction Act (44 U.S.C. chapter 35) does apply;
however, these changes to the FAR do not impose additional information
collection requirements to the paperwork burden previously approved
under OMB Control Number 9000-0198, titled: Violations of Arms Control
Treaties or Agreements.
List of Subjects in 48 CFR Parts 9 and 52
Government procurement.
William F. Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA adopt the interim rule published June
15, 2018, as final with amendments to 48 CFR parts 9 and 52 as set
forth below:
0
1. The authority citation for 48 CFR parts 9 and 52 continues to read
as follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
PART 9--CONTRACTOR QUALIFICATIONS
0
2. Amend section 9.109-4 by--
0
a. Removing from the last sentence in paragraph (a)(1)(i) ``via the
internet at'' and adding ``at'' in its place; and
0
b. Revising paragraph (d).
The revision reads as follows:
9.109-4 Certification by the offeror.
* * * * *
(d) Upon the determination of a false certification under 52.209-
13, an offeror will be subject to such remedies as suspension or
debarment under subpart 9.4, or termination of any contract resulting
from the false certification. Debarments pursued as a remedy under
subpart 9.4 shall be for a period of not less than 2 years, inclusive
of any suspension period, if suspension precedes a debarment (see
9.406-4(a)(1)(iii) and (a)(2)).
* * * * *
9.400 [Amended]
0
3. Amend section 9.400 by removing from paragraph (b) ``(9.405(b))''
and adding ``(9.405)'' in its place.
0
4. Amend section 9.405 by--
0
a. Removing the last sentence from paragraph (b);
0
b. Redesignating paragraphs (c) and (d) as paragraphs (d) and (e); and
0
c. Adding a new paragraph (c) to read as follows:
9.405 Effect of listing.
* * * * *
(c) Agencies shall not enter into, renew, or extend contracts with
contractors that have been declared ineligible pursuant to 22 U.S.C.
2593e.
* * * * *
9.405-2 [Amended]
0
5. Amend section 9.405-2 by removing from paragraph (a) ``9.405(b)''
and adding ``9.405'' in its place.
[[Page 3679]]
0
6. Amend section 9.406-2 by adding paragraph (b)(1)(vii) to read as
follows:
9.406-2 Causes for debarment.
* * * * *
(b) * * *
(1) * * *
(vii) Determination of a false certification under 52.209-13,
Violation of Arms Control Treaties or Agreements-Certification.
* * * * *
0
7. Amend section 9.406-4 by revising paragraph (a)(1)(iii) to read as
follows:
9.406-4 Period of debarment.
(a) * * *
(1) * * *
(iii) Debarments under 9.406-2(b)(1)(vii) shall be for a period of
not less than 2 years, inclusive of any suspension period, if
suspension precedes a debarment (see paragraph (a)(2) of this section).
* * * * *
0
8. Amend section 9.407-2 by--
0
a. Redesignating paragraph (a)(9) as (a)(10); and
0
b. Adding a new paragraph (a)(9) to read as follows:
9.407-2 Causes for suspension.
(a) * * *
(9) Determination of a false certification under 52.209-13,
Violation of Arms Control Treaties or Agreements-Certification.
* * * * *
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
0
9. Amend section 52.209-13 by--
0
a. Revising the date of the provision;
0
b. Removing from paragraph (a) ``acquisitions below'' and adding
``acquisitions at or below'' in its place;
0
c. Removing from paragraph (b)(1)(i) ``available via the internet at''
and adding ``available at'' in its place; and
0
d. Removing from paragraph (b)(1)(ii) ``available via the internet at''
and adding ``available at'' in its place.
The revision reads as follows:
52.209-13 Violation of Arms Control Treaties or Agreements-
Certification.
* * * * *
Violation of Arms Control Treaties or Agreements--Certification (Feb
2021)
* * * * *
[FR Doc. 2020-29086 Filed 1-13-21; 8:45 am]
BILLING CODE 6820-EP-P
