Acquisition Regulation: Access to Contractor Records, 1081-1082 [2022-00073]

Download as PDF Federal Register / Vol. 87, No. 6 / Monday, January 10, 2022 / Rules and Regulations .gov domains to state and local government entities. Under GSA’s DotGov program management and operations, domain registrations were approved based on established criteria, detailed in Federal Networking Council request for comments (RFC) 2146, May 1997 and in the Code of Federal Regulations—41 CFR Part 102–173. GSA’s management of the DotGov program also included DotGov DNS Security (DNSSEC), which gives DNS queries origin authenticity and data integrity. This was accomplished by the inclusion of public keys and the use of digital signatures to DNS information. DNSSEC was deployed on the top level Gov domain root zone in January 2008 in accordance with OMB Memorandum M–08–23. khammond on DSKJM1Z7X2PROD with RULES 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 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. III. Congressional Review Act This rule is not a major rule under 5 U.S.C. 804(2). Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996 (codified at 5 U.S.C. 801–808), also known as the Congressional Review Act or CRA, generally provides that before a rule may take effect, the agency promulgating the rule must submit a rule report, which includes a copy of the rule, to each House of the Congress and to the Comptroller General of the United States. GSA will submit a report containing this rule and other required information to the U.S. Senate, the U.S. House of Representatives, and the Comptroller General of the United States. A major rule under the CRA cannot take effect until 60 days after it is published in the Federal Register. OIRA has determined that this is not a ‘‘major rule’’ as defined by 5 U.S.C. 804(2). IV. Regulatory Flexibility Act This interim rule will not have a significant economic impact on a VerDate Sep<11>2014 15:53 Jan 07, 2022 Jkt 256001 substantial number of small entities within the meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., because it applies to agency management or personnel. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. V. Paperwork Reduction Act The Paperwork Reduction Act does not apply because the changes to the FMR do not impose recordkeeping or information collection requirements, or the collection of information from offerors, contractors, or members of the public that require the approval of the Office of Management and Budget (OMB) under 44 U.S.C. 3501, et seq. VI. Determination To Issue an Interim Rule As discussed above, Congress mandated through the DOT Gov Online Trust in Government Act that GSA rescind the regulations contained in part 102–173 of title 41, Code of Federal Regulations. As Congress has directed a specific regulator outcome through statute, this constitutes good cause to issue this as an interim rule with comment period. List of Subjects in 41 CFR Part 102–173 Government property management; Internet Gov Domain. Robin Carnahan, Administrator. PART 102–173—[REMOVED] For the reasons set forth in the preamble, and under the authority of the DOTGOV Online Trust in Government Act of 2020 (Title IX, Division U, H.R. 133, Consolidated Appropriations Act, 2021), GSA removes 41 CFR part 102– 173. ■ [FR Doc. 2021–28421 Filed 1–7–22; 8:45 am] BILLING CODE 6820–14–P DEPARTMENT OF STATE 48 CFR Parts 615 and 652 [Public Notice: 11611] RIN 1400–AE60 Acquisition Regulation: Access to Contractor Records Department of State. Final rule. AGENCY: ACTION: The Department of State (the Department) is finalizing an amendment to the Department of State Acquisition Regulation (DOSAR), to add a new contract clause relating to Department SUMMARY: PO 00000 Frm 00021 Fmt 4700 Sfmt 4700 1081 requests for examination of contractor records. This final rule is effective February 9, 2022. DATES: FOR FURTHER INFORMATION CONTACT: Tandra A. Jones, Senior Procurement, Email: AcquisitionPolicy@state.gov. On July 2, 2021, the Department published a notice of proposed rulemaking, proposing to add 48 CFR part 615, section 615.209– 70, Examination of Records, and 48 CFR part 652, section 652.209–70, Examination of Records, to the Department of State Acquisition Regulation (DOSAR). 86 FR 35257. The Department provided 60 days for public comment. No comments were received. Accordingly, the Department is publishing this final rule. SUPPLEMENTARY INFORMATION: What is the authority for this rule? Title 41 of the U.S. Code, section 4706, provides that the head of an executive agency, acting through an authorized representative, may, for the purpose of evaluating the accuracy, completeness, and currency of certified cost or pricing data required to be submitted pursuant to 41 U.S.C. chapter 35 with respect to a contract or subcontract, examine all records of the contractor or subcontractor related to: • The proposal for the contract or subcontract; • the discussions conducted on the proposal; • pricing of the contract or subcontract; or • performance of the contract or subcontract. The Federal Acquisition Regulation (FAR), 48 CFR 15.209(b), Solicitation provisions and contract clauses, states (in summary) that, when contracting by negotiation, except as provided in paragraph (b)(2) of § 15.209,1 the contracting officer shall insert the clause at § 52.215–2, Audit and RecordsNegotiation, in solicitations and contracts except those for • Acquisitions not exceeding the simplified acquisition threshold; Æ The acquisition of utility services at rates not exceeding those established to apply uniformly to the general public, plus any applicable reasonable connection charge; or Æ The acquisition of commercial items exempted under § 15.403–1. 1 Paragraph (b)(2) relates to contracts using funds appropriated or otherwise made available by the American Recovery and Reinvestment Act of 2009 (Pub. L. 111–5). E:\FR\FM\10JAR1.SGM 10JAR1 1082 Federal Register / Vol. 87, No. 6 / Monday, January 10, 2022 / Rules and Regulations Why is the Department publishing this rule? The DOSAR implements the FAR (and therefore, the statute, 41 U.S.C. 4706) for the Department of State.2 The Department has determined, after a review of the existing regulations, that further clarity is required regarding implementation of 41 U.S.C. 4706 as it relates to contracts other than contracts by negotiation (which, as noted, are already covered by FAR § 15.209(b)). For these reasons, the Department is adding § 615.209–70 to the DOSAR, requiring the contracting officer to insert a new clause, Examination of Records (proposed § 652.215–70), in all solicitations and contracts other than contracts by negotiation. Regulatory Findings Administrative Procedure Act In accordance with the provisions of the Administrative Procedure Act, the Department published this rulemaking as a proposed rule, and provided 60 days for public comment. This final rule will be effective 30 days after publication. Regulatory Flexibility Act The Department of State, in accordance with the Regulatory Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by approving it, certifies that this rule will not have a significant economic impact on small entities. This determination is based on the fact that this rulemaking clarifies within the DOSAR the authority of the Department to examine contractor records, which is already provided by statute. Congressional Review Act This rule is not a major rule as defined by 5 U.S.C. 804(2). khammond on DSKJM1Z7X2PROD with RULES Unfunded Mandates Act of 1995 This will not result in the expenditure by State, local, and tribal governments, in the aggregate, or by the private sector, of $100 million or more in any year and it will not significantly or uniquely affect small governments. Therefore, no actions were deemed necessary under the provisions of the Unfunded Mandates Act of 1995. Executive Orders 12866 and 13563 Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 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 emphasized the importance of quantifying both costs and benefits, of reducing costs, of harmonizing rules, and of promoting flexibility. The Department has reviewed the regulation to ensure its consistency with the regulatory philosophy and principles set forth in the Executive Orders and finds that the benefits of this rule outweigh any costs, which the Department assesses to be minimal. As noted, this rule does not impose any new requirements on contractors. The Office of Information and Regulatory Affairs has determined that this regulation is ‘‘not significant’’ under E.O. 12866. Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1. Executive Order 13132 ■ This rule will not have substantial direct effects on the States, on the relationship between the national government and the States, or on the distribution of power and responsibilities among the various levels of government. Therefore, in accordance with section 6 of Executive Order 13132, it is determined that this rulemaking will not have sufficient federalism implications to require consultations or warrant the preparation of a federalism summary impact statement. Executive Order 13175 The Department has determined that this rulemaking will not have tribal implications, will not impose substantial direct compliance costs on Indian tribal governments, and will not pre-empt tribal law. Accordingly, the requirements of Executive Order 13175 do not apply to this rulemaking. Paperwork Reduction Act This rule does not add or revise any information collection requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 35. List of Subjects in 48 CFR Parts 615 and 652 Administrative practice and procedure, Government procurement. Accordingly, the Department of State amends 48 CFR chapter 6 as follows: PART 615—CONTRACTING BY NEGOTIATION 1. The authority citation for part 615 continues to read as follows: ■ 2 48 CFR 601.303. VerDate Sep<11>2014 15:53 Jan 07, 2022 Jkt 256001 PO 00000 Frm 00022 Fmt 4700 Sfmt 9990 2. Section 615.209–70 is added to read as follows: ■ 615.209–70 Examination of records. The contracting officer shall insert the clause at 652.215–70, Examination of Records, in all solicitations and contracts other than those described in Federal Acquisition Regulation 15.209(b)(1). PART 652—SOLICITATION PROVISIONS AND CONTRACT CLAUSES 3. The authority citation for part 652 continues to read as follows: ■ Authority: 22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 1 4. Section 652.215–70 is added to read as follows: 652.215–70 Examination of records. As prescribed in 615.209–70, insert the following clause. Examination of Records (a) With respect to matters related to this contract or a subcontract hereunder, the Department of State Office of the Inspector General, or an authorized representative, shall have upon request: (1) Complete, prompt, and free access to all Contractor and Subcontractor files (in any format), documents, records, data, premises, and employees, except as limited by law; and (2) The right to interview any current Contractor and Subcontractor personnel, individually and directly, with respect to such matters. (b) This clause may not be construed to require the contractor or any subcontractor to create or maintain any record that the contractor or subcontractor does not maintain in the ordinary course of business or pursuant to a provision of law. (c) The Contractor shall insert a clause containing all the terms of this clause, including this paragraph (c), in all subcontracts under this contract other than acquisitions described in Federal Acquisition Regulation 15.209(b)(1). (End of clause) Michael W. Derrios, Senior Procurement Executive, Office of the Procurement Executive, U.S. Department of State. [FR Doc. 2022–00073 Filed 1–7–22; 8:45 am] BILLING CODE 4710–24–P E:\FR\FM\10JAR1.SGM 10JAR1

Agencies

DEPARTMENT OF STATE

[Federal Register Volume 87, Number 6 (Monday, January 10, 2022)]
[Rules and Regulations]
[Pages 1081-1082]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-00073]


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DEPARTMENT OF STATE

48 CFR Parts 615 and 652

[Public Notice: 11611]
RIN 1400-AE60


Acquisition Regulation: Access to Contractor Records

AGENCY: Department of State.

ACTION: Final rule.

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

SUMMARY: The Department of State (the Department) is finalizing an 
amendment to the Department of State Acquisition Regulation (DOSAR), to 
add a new contract clause relating to Department requests for 
examination of contractor records.

DATES: This final rule is effective February 9, 2022.

FOR FURTHER INFORMATION CONTACT: Tandra A. Jones, Senior Procurement, 
Email: [email protected].

SUPPLEMENTARY INFORMATION: On July 2, 2021, the Department published a 
notice of proposed rulemaking, proposing to add 48 CFR part 615, 
section 615.209-70, Examination of Records, and 48 CFR part 652, 
section 652.209-70, Examination of Records, to the Department of State 
Acquisition Regulation (DOSAR). 86 FR 35257. The Department provided 60 
days for public comment. No comments were received. Accordingly, the 
Department is publishing this final rule.

What is the authority for this rule?

    Title 41 of the U.S. Code, section 4706, provides that the head of 
an executive agency, acting through an authorized representative, may, 
for the purpose of evaluating the accuracy, completeness, and currency 
of certified cost or pricing data required to be submitted pursuant to 
41 U.S.C. chapter 35 with respect to a contract or subcontract, examine 
all records of the contractor or subcontractor related to:
     The proposal for the contract or subcontract;
     the discussions conducted on the proposal;
     pricing of the contract or subcontract; or
     performance of the contract or subcontract.
    The Federal Acquisition Regulation (FAR), 48 CFR 15.209(b), 
Solicitation provisions and contract clauses, states (in summary) that, 
when contracting by negotiation, except as provided in paragraph (b)(2) 
of Sec.  15.209,\1\ the contracting officer shall insert the clause at 
Sec.  52.215-2, Audit and Records-Negotiation, in solicitations and 
contracts except those for
---------------------------------------------------------------------------

    \1\ Paragraph (b)(2) relates to contracts using funds 
appropriated or otherwise made available by the American Recovery 
and Reinvestment Act of 2009 (Pub. L. 111-5).
---------------------------------------------------------------------------

     Acquisitions not exceeding the simplified acquisition 
threshold;
    [cir] The acquisition of utility services at rates not exceeding 
those established to apply uniformly to the general public, plus any 
applicable reasonable connection charge; or
    [cir] The acquisition of commercial items exempted under Sec.  
15.403-1.

[[Page 1082]]

Why is the Department publishing this rule?

    The DOSAR implements the FAR (and therefore, the statute, 41 U.S.C. 
4706) for the Department of State.\2\ The Department has determined, 
after a review of the existing regulations, that further clarity is 
required regarding implementation of 41 U.S.C. 4706 as it relates to 
contracts other than contracts by negotiation (which, as noted, are 
already covered by FAR Sec.  15.209(b)).
---------------------------------------------------------------------------

    \2\ 48 CFR 601.303.
---------------------------------------------------------------------------

    For these reasons, the Department is adding Sec.  615.209-70 to the 
DOSAR, requiring the contracting officer to insert a new clause, 
Examination of Records (proposed Sec.  652.215-70), in all 
solicitations and contracts other than contracts by negotiation.

Regulatory Findings

Administrative Procedure Act

    In accordance with the provisions of the Administrative Procedure 
Act, the Department published this rulemaking as a proposed rule, and 
provided 60 days for public comment. This final rule will be effective 
30 days after publication.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by 
approving it, certifies that this rule will not have a significant 
economic impact on small entities. This determination is based on the 
fact that this rulemaking clarifies within the DOSAR the authority of 
the Department to examine contractor records, which is already provided 
by statute.

Congressional Review Act

    This rule is not a major rule as defined by 5 U.S.C. 804(2).

Unfunded Mandates Act of 1995

    This will not result in the expenditure by State, local, and tribal 
governments, in the aggregate, or by the private sector, of $100 
million or more in any year and it will not significantly or uniquely 
affect small governments. Therefore, no actions were deemed necessary 
under the provisions of the Unfunded Mandates Act of 1995.

Executive Orders 12866 and 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
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 
emphasized the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. The 
Department has reviewed the regulation to ensure its consistency with 
the regulatory philosophy and principles set forth in the Executive 
Orders and finds that the benefits of this rule outweigh any costs, 
which the Department assesses to be minimal. As noted, this rule does 
not impose any new requirements on contractors. The Office of 
Information and Regulatory Affairs has determined that this regulation 
is ``not significant'' under E.O. 12866.

Executive Order 13132

    This rule will not have substantial direct effects on the States, 
on the relationship between the national government and the States, or 
on the distribution of power and responsibilities among the various 
levels of government. Therefore, in accordance with section 6 of 
Executive Order 13132, it is determined that this rulemaking will not 
have sufficient federalism implications to require consultations or 
warrant the preparation of a federalism summary impact statement.

Executive Order 13175

    The Department has determined that this rulemaking will not have 
tribal implications, will not impose substantial direct compliance 
costs on Indian tribal governments, and will not pre-empt tribal law. 
Accordingly, the requirements of Executive Order 13175 do not apply to 
this rulemaking.

Paperwork Reduction Act

    This rule does not add or revise any information collection 
requirements subject to the Paperwork Reduction Act, 44 U.S.C. chapter 
35.

List of Subjects in 48 CFR Parts 615 and 652

    Administrative practice and procedure, Government procurement.

    Accordingly, the Department of State amends 48 CFR chapter 6 as 
follows:

PART 615--CONTRACTING BY NEGOTIATION

0
1. The authority citation for part 615 continues to read as follows:

    Authority:  22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 
1.

0
2. Section 615.209-70 is added to read as follows:


615.209-70  Examination of records.

    The contracting officer shall insert the clause at 652.215-70, 
Examination of Records, in all solicitations and contracts other than 
those described in Federal Acquisition Regulation 15.209(b)(1).

PART 652--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for part 652 continues to read as follows:

    Authority:  22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 
1

0
4. Section 652.215-70 is added to read as follows:


652.215-70   Examination of records.

    As prescribed in 615.209-70, insert the following clause.

Examination of Records

    (a) With respect to matters related to this contract or a 
subcontract hereunder, the Department of State Office of the Inspector 
General, or an authorized representative, shall have upon request:
    (1) Complete, prompt, and free access to all Contractor and 
Subcontractor files (in any format), documents, records, data, 
premises, and employees, except as limited by law; and
    (2) The right to interview any current Contractor and Subcontractor 
personnel, individually and directly, with respect to such matters.
    (b) This clause may not be construed to require the contractor or 
any subcontractor to create or maintain any record that the contractor 
or subcontractor does not maintain in the ordinary course of business 
or pursuant to a provision of law.
    (c) The Contractor shall insert a clause containing all the terms 
of this clause, including this paragraph (c), in all subcontracts under 
this contract other than acquisitions described in Federal Acquisition 
Regulation 15.209(b)(1).

(End of clause)

Michael W. Derrios,
Senior Procurement Executive, Office of the Procurement Executive, U.S. 
Department of State.
[FR Doc. 2022-00073 Filed 1-7-22; 8:45 am]
BILLING CODE 4710-24-P

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