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									                                        53990              Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        DEPARTMENT OF DEFENSE                                                    and National Aeronautics and Space                                        DATES:  For effective dates and comment
                                                                                                                 Administration (NASA).                                                    dates, see separate documents, which
                                        GENERAL SERVICES                                                                                                                                   follow.
                                        ADMINISTRATION                                                           ACTION:       Summary presentation of rules.
                                                                                                                                                                                           FOR FURTHER INFORMATION CONTACT:    The
                                        NATIONAL AERONAUTICS AND                                                 SUMMARY:   This document summarizes                                       analyst whose name appears in the table
                                        SPACE ADMINISTRATION                                                     the Federal Acquisition Regulation                                        below in relation to each FAR case.
                                                                                                                 (FAR) rules agreed to by the Civilian                                     Please cite FAC 2005–27 and the
                                        48 CFR Chapter 1                                                         Agency Acquisition Council and the                                        specific FAR case numbers. For
                                                                                                                 Defense Acquisition Regulations                                           information pertaining to status or
                                        [Docket FAR 2008–0003, Sequence 2]                                       Council in this Federal Acquisition                                       publication schedules, contact the FAR
                                                                                                                 Circular (FAC) 2005–27. A companion                                       Secretariat at (202) 501–4755.
                                        Federal Acquisition Regulation;
                                                                                                                 document, the Small Entity Compliance
                                        Federal Acquisition Circular 2005–27;
                                                                                                                 Guide (SECG), follows this FAC. The
                                        Introduction
                                                                                                                 FAC, including the SECG, is available
                                        AGENCIES: Department of Defense (DoD),                                   via the Internet at http://
                                        General Services Administration (GSA),                                   www.regulations.gov.

                                                                                                                       LIST OF RULES IN FAC 2005–27
                                             Item                                                                            Subject                                                                            FAR case       Analyst

                                          I ............   Correcting Statutory References Related to theHigher Education Act of 1965 ..............................                                          2007–020     Cundiff.
                                          II ...........   Changing the Name of the Office of Small andDisadvantaged Business Utilization for DoD ........                                                    2008–001     Cundiff.
                                          III ..........   Administrative Changes to the FPI Blanket Waiver and the JWOD Program Name .....................                                                   2007–015     Clark.
                                          IV ..........    Local Community Recovery Act of 2006 .........................................................................................                     2006–014     Clark.
                                          V ...........    Additional Requirements for Competition Advocate AnnualReports ...............................................                                     2007–007     Woodson.
                                          VI ..........    Contract Debts .................................................................................................................................   2005–018     Murphy.
                                          VII .........    Subcontractor Requests for Bonds ..................................................................................................                2007–022     Jackson.
                                          VIII ........    Extension of Authority for Use of Simplified Acquisition Procedures for Certain Commercial                                                         2008–002     Jackson.
                                                             Items.
                                          IX ..........    Enhanced Competition for Task and Delivery OrderContracts—Section 843 of the Fiscal Year                                                           2008–006     Clark.
                                                             2008 National Defense Authorization Act(Interim).
                                          X ...........    Online Representations and Certifications ApplicationReview ........................................................                               2006–025     Woodson.
                                          XI ..........    Cost Accounting Standards (CAS) Administration andAssociated Federal Acquisition Regulation                                                        2007–002     Chambers.
                                                             Clauses (Interim).
                                          XII .........    CAS Administration ..........................................................................................................................      2006–004     Chambers.
                                          XIII ........    Accepting and Dispensing of $1 Coin .............................................................................................                  2006–027     Jackson.
                                          XIV .......      Technical Amendments ...................................................................................................................



                                        SUPPLEMENTARY INFORMATION:                                               name of the ‘‘Office of Small and                                         final, with a minor change to the second
                                        Summaries for each FAR rule follow.                                      Disadvantaged Business Utilization’’ to                                   interim rule, two interim rules
                                        For the actual revisions and/or                                          the ‘‘Office of Small Business Programs’’                                 amending the Federal Acquisition
                                        amendments to these FAR cases, refer to                                  for the Department of Defense. Section                                    Regulation (FAR) to implement
                                        the specific item number and subject set                                 904 of the National Defense                                               amendments to the Robert T. Stafford
                                        forth in the documents following these                                   Authorization Act for Fiscal Year 2006,                                   Disaster Relief and Emergency
                                        item summaries.                                                          Pub. L. 109–163, re-designated the                                        Assistance Act. The first interim rule
                                           FAC 2005–27 amends the FAR as                                         ‘‘Office of Small and Disadvantaged                                       was published in the Federal Register at
                                        specified below:                                                         Business Utilization’’.                                                   71 FR 44546, August 4, 2006. The
                                                                                                                                                                                           second interim rule was published in
                                        Item I—Correcting Statutory References                                   Item III—Administrative Changes to the
                                                                                                                                                                                           the Federal Register at 72 FR 63084,
                                        Related to the Higher Education Act of                                   FPI Blanket Waiver and the JWOD
                                                                                                                                                                                           November 7, 2007.
                                        1965 (FAR Case 2007–020)                                                 Program Name (FAR Case 2007–015)
                                                                                                                                                                                           Item V—Additional Requirements for
                                           This final rule amends the Federal                                      This final rule amends the language in                                  Competition Advocate Annual Reports
                                        Acquisition Regulation to reflect the                                    the Federal Acquisition Regulation to                                     (FAR Case 2007–007)
                                        correct public law citations for the                                     increase the blanket waiver threshold
                                        definitions of minority institution and                                  for small dollar-value purchases from                                        This final rule amends the Federal
                                        Hispanic-serving institution. The                                        Federal Prison Industries by Federal                                      Acquisition Regulation 6.502 to require
                                        citations changed when the Higher                                        agencies and also changes the name of                                     that annual reviews by executive agency
                                        Education Act of 1965 was amended by                                     the JWOD Program to the AbilityOne                                        competition advocates be provided in
                                        the Higher Education Amendments of                                       Program. These changes are                                                writing to both the agency senior
                                        1998.                                                                    administrative in nature and any impact                                   procurement executive and the agency
                                                                                                                 will be minimal.                                                          chief acquisition officer, and ensure task
                                        Item II—Changing the Name of the
                                                                                                                 Item IV—Local Community Recovery                                          and delivery orders over $1,000,000
                                        Office of Small and Disadvantaged
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                                                                                                                 Act of 2006 (FAR Case 2006–014)                                           issued under multiple award contracts
                                        Business Utilization for DoD (FAR Case
                                                                                                                                                                                           are properly planned, issued, and
                                        2008–001)
                                                                                                                   The Civilian Agency Acquisition                                         comply with 8.405 and 16.505. The rule
                                         This final rule amends the Federal                                      Council and the Defense Acquisition                                       provides for one of several initiatives by
                                        Acquisition Regulation to change the                                     Regulations Council have adopted as                                       the Administrator, Office of Federal


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                         53991

                                        Procurement Policy, to reinforce the use                355 will be included in the list at FAR               compliance with the requirements of 40
                                        of competition and related practices for                12.503(a) and 12.504(a).                              CFR part 247 and 42 U.S.C. 11023.
                                        achieving a competitive environment.
                                                                                                Item VIII—Extension of Authority for                  Item XI—Cost Accounting Standards
                                        The rule reinvigorates the role of
                                                                                                Use of Simplified Acquisition                         (CAS) Administration and Associated
                                        agencies’ competition advocates,
                                                                                                Procedures for Certain Commercial                     Federal Acquisition Regulation Clauses
                                        strengthens agencies’ competition
                                        practices, and ensures best value for the               Items (FAR Case 2008–002)                             (FAR Case 2007–002) (Interim)
                                        taxpayer.                                                 This final rule amends the Federal                    The subject case is revising the
                                        Item VI—Contract Debts (FAR Case                        Acquisition Regulation to implement                   Federal Acquisition Regulation (FAR)
                                        2005–018)                                               Section 822 of the National Defense                   clauses concerning the administration of
                                                                                                Authorization Act for Fiscal Year 2008                Cost Accounting Standards (CAS) to
                                           This final rule amends and                           (Pub. L. 110–181). Section 822 amends                 maintain consistency between the CAS
                                        reorganizes FAR Subpart 32.6, Contract                  Section 4202(e) of the Clinger-Cohen                  rules and the FAR.
                                        Debts, and amends associated other FAR                  Act of 1996 (division D of Pub. L. 104–
                                        coverage, based on the                                                                                        Item XII—CAS Administration (FAR
                                                                                                106; 110 Stat. 652; 10 U.S.C. 2304 note)
                                        recommendations of the Department of                                                                          Case 2006–004)
                                                                                                by extending until January 1, 2010, the
                                        Defense Contract Debt Integrated                        timeframe in which an agency may use                    This final rule adopts, with minor
                                        Process Team, to improve contract debt                  simplified procedures to purchase                     changes, the proposed rule published in
                                        controls and procedures and to ensure                   commercial items in amounts greater                   the Federal Register at 71 FR 58338,
                                        consistency within and between                          than the simplified acquisition                       October 3, 2006, amending the Federal
                                        existing regulations. FAR Subpart 32.6                  threshold, but not exceeding $5,500,000               Acquisition Regulation to implement
                                        prescribes policies and procedures for                  ($11 million for acquisitions as                      revisions to the regulations related to
                                        identifying, collecting, and deferring
                                                                                                described in 13.500(e)).                              the administration of the Cost
                                        collection of contract debts (including
                                                                                                Item IX—Enhanced Competition for                      Accounting Standards as they pertain to
                                        interest, if applicable). Throughout, the
                                                                                                Task and Delivery Order Contracts—                    contracts with foreign concerns,
                                        term ‘‘responsible official’’ has been
                                        replaced with the specific individual/                  Section 843 of the Fiscal Year 2008                   including United Kingdom concerns.
                                        organization responsible for fulfilling                 National Defense Authorization Act                    Item XIII—Accepting and Dispensing of
                                        the FAR requirement. FAR 32.601 is                      (FAR Case 2008–006) (Interim)                         $1 Coin (FAR Case 2006–027)
                                        revised to specify what constitutes a
                                        contract debt, rather than how a contract                  This interim rule amends Federal                      This final rule adopts, with change,
                                        debt may arise. All discussions of                      Acquisition Regulation Subpart 16.5 to                the interim rule published in the
                                        contract debt determinations are                        implement Section 843 of the Fiscal                   Federal Register at 72 FR 46361, August
                                        consolidated in FAR 32.603, including                   Year 2008 National Defense                            17, 2007. This final rule implements the
                                        the responsibility of the contracting                   Authorization Act (Pub. L. 110–181).                  Presidential $1 Coin Act of 2005 (Pub.
                                        officer in making debt determinations.                  The provisions of Section 843 include:                L. 109–145). The Presidential $1 Coin
                                        All discussions of the demand for                       (1) Limitation on single award task or                Act of 2005 requires the Secretary of the
                                        payment are consolidated in FAR                         delivery order (Indefinite-Delivery                   Treasury to mint and issue annually
                                        32.604, including the requirements for                  Requirements, and Indefinite-Quantity)                four new $1 coins bearing the likenesses
                                        demand letters. All discussions of final                type contracts greater than $100 million;             of the Presidents of the United States in
                                        decisions are consolidated in FAR                       (2) Enhanced competition for task and                 the order of their service and to
                                        32.605. FAR 32.606 includes all                         delivery orders in excess of $5 million;              continue to mint and issue ‘‘Sacagawea-
                                        coverage on debt collections, including                 and (3) Protest on orders on the grounds              design’’ coins for circulation. In order to
                                        when responsibility should be                           that the order increases the scope,                   promote circulation of the coins,
                                        transferred to the Department of                        period, maximum value of the contract                 Section 104 of the Public Law also
                                        Treasury. All discussions of interest are               under which the order is issued; or                   requires that Federal agencies take
                                        consolidated at FAR 32.608, including                   valued in excess of $10 million. FAR                  action so that, by January 1, 2008,
                                        how to compute interest. The                            sections 16.503 and 16.504, as amended                entities that operate any business,
                                        Government’s right to make a demand                     by this rule, are applicable to single                including vending machines, on any
                                        for payment and start the interest clock                award task or delivery order contracts                premises owned by the United States or
                                        running under the contract is ensured,                  awarded on or after May 27, 2008. FAR                 under the control of any agency or
                                        as is the Government’s right to make a                  section 16.505, as amended by this rule,              instrumentality of the United States, are
                                        demand for payment without first                        is applicable to orders awarded on or                 capable of accepting and dispensing $1
                                        issuing a final decision of the                         after May 27, 2008 on existing contracts              coins and that the entities display
                                        contracting officer. A final decision is                as well as new contracts.                             notices of this capability on the business
                                        required only if the contractor disagrees               Item X—Online Representations and                     premises. Pub. L. 110–147 was enacted
                                        with the demand for payment.                            Certifications Application Review (FAR                to amend Section 5112(p)(1)(A) of Title
                                                                                                Case 2006–025)                                        31, United States Code, to allow an
                                        Item VII—Subcontractor Requests for                                                                           exception from the $1 coin dispensing
                                        Bonds (FAR Case 2007–022)                                 This final rule adopts as final, without            capability requirement for those
                                           This final rule amends the list of laws              change, the interim rule published in                 vending machines that do not receive
                                        inapplicable to commercial items, to                    the Federal Register at 72 FR 46359,                  currency denominations greater than $1.
                                        clarify that the existing regulations at                August 17, 2007. The rule amends FAR                  Contracting officers have been
                                        FAR 28.106–4, Contract clause, and                      23.406 and 23.906 to revise the                       instructed in the Applicability Date of
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                                        52.228–12, Prospective Subcontractor                    prescriptions for the use of 52.223–9                 the preamble to modify contracts upon
                                        Requests for Bonds, do not apply to                     and 52.223–14 to provide for their use                request of the contractor, to change the
                                        commercial items. Section 806(a)(3) of                  under the same circumstances as the                   older version of the clause to the newer
                                        Pub. L. 102–190, as amended by                          prescription for use of their associated              version without requiring consideration
                                        Sections 2091 and 8105 of Pub. L. 103–                  provisions. These revisions ensure                    from the contractor.


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                                        53992        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        Item XIV—Technical Amendments                           Acquisition Regulations Council                       C. Paperwork Reduction Act
                                          Editorial changes are made at FAR                     (Councils) have agreed on a final rule                  The Paperwork Reduction Act does
                                        15.404–1 and 52.212–5.                                  amending the Federal Acquisition                      not apply because the changes to the
                                                                                                Regulation (FAR) to correct references to             FAR do not impose information
                                          Dated: September 9, 2008                              sections of the Higher Education Act of               collection requirements that require the
                                        Al Matera,                                              1965 at FAR 2.101 and 52.2. These                     approval of the Office of Management
                                        Director, Office of Acquisition Policy.                 sections of the Act contain the                       and Budget under 44 U.S.C. 3501, et
                                        Federal Acquisition Circular                            definitions of minority institution and               seq.
                                                                                                Hispanic-serving institution. The
                                          Federal Acquisition Circular (FAC)                    citations for these sections changed                  List of Subjects in 48 CFR Parts 2 and
                                        2005–27 is issued under the authority of                when the Higher Education Act of 1965                 52
                                        the Secretary of Defense, the                           was amended by the Higher Education                     Government procurement.
                                        Administrator of General Services, and                  Amendments of 1998. This final rule                     Dated: September 9, 2008.
                                        the Administrator for the National                      updates the FAR accordingly.
                                        Aeronautics and Space Administration.                                                                         Al Matera,
                                                                                                DATES: Effective Date: October 17, 2008.
                                          Unless otherwise specified, all                                                                             Director, Office of Acquisition Policy.
                                                                                                FOR FURTHER INFORMATION CONTACT: Ms.
                                        Federal Acquisition Regulation (FAR)                                                                          ■ Therefore, DoD, GSA, and NASA
                                                                                                Rhonda Cundiff, Procurement Analyst,                  amend 48 CFR parts 2 and 52 as set
                                        and other directive material contained
                                                                                                at (202) 501–0044, for clarification of               forth below:
                                        in FAC 2005–27 is effective October 17,
                                                                                                content. For information pertaining to                ■ 1. The authority citation for 48 CFR
                                        2008, except for Items VII, VIII, IX, X,
                                                                                                status or publication schedules, contact              parts 2 and 52 continues to read as
                                        XIII, and XIV which are effective
                                                                                                the Regulatory Secretariat at (202) 501–              follows:
                                        September 17, 2008.
                                                                                                4755. Please cite FAC 2005–27, FAR
                                          Dated: September 5, 2008.                             case 2007–020.                                          Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                        Shay D. Assad,                                                                                                chapter 137; and 42 U.S.C. 2473(c).
                                                                                                SUPPLEMENTARY INFORMATION:
                                        Director, Defense Procurement and                                                                             PART 2—DEFINITIONS OF WORDS
                                        Acquisition Policy.                                     A. Background
                                                                                                                                                      AND TERMS
                                          Dated: September 8, 2008.                               The definition of ‘‘minority
                                                                                                institution’’ had been found in section               ■ 2. Amend section 2.101 in paragraph
                                        David A. Drabkin,                                                                                             (b)(2) by revising the definition
                                                                                                1046 of the Higher Education Act of
                                        Senior Procurement Executive & Deputy Chief                                                                   ‘‘Minority Institution’’ to read as
                                        Acquisition Officer, Office of the Chief
                                                                                                1965 (HEA) and at 20 U.S.C. 1135d–
                                                                                                5(3). The Higher Education                            follows:
                                        Acquisition Officer, U.S. General Services
                                        Administration.                                         Amendments of 1998 redesignated                       2.101        Definitions.
                                                                                                section 1046 of the HEA as section 365.
                                          Dated: August 26, 2008.                                 The Hispanic-serving Institution                    *     *     *     *    *
                                        William P. McNally,                                                                                             (b) * * *
                                                                                                Program was authorized in section 316                   (2) * * *
                                        Assistant Administrator for Procurement,                of Title III of the HEA, as amended by                  Minority Institution means an
                                        National Aeronautics and Space                          1992 amendments. In the Higher
                                        Administration.
                                                                                                                                                      institution of higher education meeting
                                                                                                Education Amendments of 1998, Pub. L.                 the requirements of Section 365(3) of
                                        [FR Doc. E8–21383 Filed 9–16–08; 8:45 am]               105–244, the Hispanic-serving                         the Higher Education Act of 1965 (20
                                        BILLING CODE 6820–EP–S                                  institution Program was moved into                    U.S.C. 1067k), including a Hispanic-
                                                                                                Title V of the HEA and reenacted, in                  serving institution of higher education,
                                                                                                that title, with all the relevant                     as defined in Section 502(a) of the Act
                                        DEPARTMENT OF DEFENSE                                   provisions that governed that program                 (20 U.S.C. 1101a).
                                                                                                while it was part of Title III of the HEA.
                                        GENERAL SERVICES                                                                                              *     *     *     *    *
                                                                                                This final rule reflects these changes.
                                        ADMINISTRATION                                            This is not a significant regulatory                PART 52—SOLICITATION PROVISIONS
                                                                                                action and, therefore, was not subject to             AND CONTRACT CLAUSES
                                        NATIONAL AERONAUTICS AND                                review under Section 6(b) of Executive
                                        SPACE ADMINISTRATION                                    Order 12866, Regulatory Planning and                  ■ 3. Amend section 52.212–5 by
                                                                                                Review, dated September 30, 1993. This                revising the date of the clause and
                                        48 CFR Parts 2 and 52                                   rule is not a major rule under 5 U.S.C.               paragraph (b)(11)(i) to read as follows:
                                        [FAC 2005–27; FAR Case 2007–020; Item                   804.                                                  52.212–5 Contract Terms and Conditions
                                        I; Docket 2008–0001; Sequence 15]                                                                             Required to Implement Statutes or
                                                                                                B. Regulatory Flexibility Act
                                        RIN 9000–AL06                                                                                                 Executive Orders—Commercial Items.
                                                                                                  The Regulatory Flexibility Act does
                                                                                                                                                      *        *       *      *   *
                                                                                                not apply to this rule. This final rule
                                        Federal Acquisition Regulation; FAR                                                                           CONTRACT TERMS AND CONDITIONS
                                                                                                does not constitute a significant FAR
                                        Case 2007–020, Correcting Statutory                                                                           REQUIRED TO IMPLEMENT STATUTES OR
                                                                                                revision within the meaning of FAR
                                        References Related to the Higher                                                                              EXECUTIVE ORDERS—COMMERCIALS
                                                                                                1.501 and Pub. L. 98–577, and                         ITEMS (OCT 2008)
                                        Education Act of 1965
                                                                                                publication for public comments is not
                                                                                                required. However, the Councils will                  *        *       *      *   *
                                        AGENCIES: Department of Defense (DoD),                                                                           (b) * * *
                                        General Services Administration (GSA),                  consider comments from small entities                    ll (11)(i) 52.219–23, Notice of Price
                                        and National Aeronautics and Space                      concerning the affected FAR Parts 2 and               Evaluation Adjustment for Small
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                                        Administration (NASA).                                  52 in accordance with 5 U.S.C. 610.                   Disadvantaged Business Concerns (OCT
                                        ACTION: Final rule.                                     Interested parties must submit such                   2008) (10 U.S.C. 2323)(if the offeror elects to
                                                                                                comments separately and should cite 5                 waive the adjustment, it shall so indicate in
                                        SUMMARY:  The Civilian Agency                           U.S.C. 601, et seq. (FAC 2005–27, FAR                 its offer.)
                                        Acquisition Council and the Defense                     case 2007–020, in correspondence.)                    *        *       *      *   *


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                                53993

                                        ■ 4. Amend section 52.219–23 by                         ACTION:   Final rule.                                 List of Subjects in 48 CFR Parts 2 and
                                        revising the date of the clause and in                                                                        19
                                        paragraph (a) the definition ‘‘Minority                 SUMMARY:   The Civilian Agency
                                                                                                Acquisition Council and the Defense                       Government procurement.
                                        institution’’ to read as follows:
                                                                                                Acquisition Regulations Council                         Dated: September 9, 2008.
                                        52.219–23 Notice of Price Evaluation                    (Councils) have agreed on a final rule                Al Matera,
                                        Adjustment for Small Disadvantaged                      amending the Federal Acquisition
                                        Business Concerns.                                                                                            Director, Office of Acquisition Policy.
                                                                                                Regulation (FAR) to change the name of
                                        *      *     *       *      *                           the ‘‘Office of Small and Disadvantaged               ■ Therefore, DoD, GSA, and NASA
                                        NOTICE OF PRICE EVALUATION                              Business Utilization’’ to the ‘‘Office of             amend 48 CFR parts 2 and 19 as set
                                        ADJUSTMENT FOR SMALL                                    Small Business Programs’’ for the                     forth below:
                                        DISADVANTAGED BUSINESS CONCERNS                         Department of Defense.                                ■ 1. The authority citation for 48 CFR
                                        (OCT 2008)                                              DATES: Effective Date: October 17, 2008.              parts 2 and 19 continues to read as
                                          (a) * * *                                             FOR FURTHER INFORMATION CONTACT Ms.                   follows:
                                          Minority institution means an institution of          Rhonda Cundiff, Procurement Analyst,                    Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                        higher education meeting the requirements of            at (202) 501–0044 for clarification of                chapter 137; and 42 U.S.C. 2473(c).
                                        Section 365(3) of the Higher Education Act
                                                                                                content. For information pertaining to
                                        of 1965 (20 U.S.C. 1067k), including a                                                                        PART 2—DEFINITIONS OF WORDS
                                        Hispanic-serving institution of higher                  status or publication schedules, contact
                                                                                                the FAR Secretariat at (202) 501–4755.                AND TERMS
                                        education, as defined in Section 502(a) of the
                                        Act (20 U.S.C. 1101a).                                  Please cite FAC 2005–27, FAR case                     ■ 2. Amend section 2.101 in paragraph
                                        *     *     *      *    *                               2008–001.                                             (b)(2) by adding, in alphabetical order,
                                        ■ 5. Amend section 52.226–2 by                          SUPPLEMENTARY INFORMATION:                            the definition ‘‘Office of Small and
                                        revising the date of the provision and in               A. Background                                         Disadvantaged Business Utilization’’ to
                                        paragraph (a) the definition ‘‘Minority                                                                       read as follows:
                                        institution’’ to read as follows:                          Section 904 of the National Defense
                                                                                                Authorization Act for Fiscal Year 2006,               2.101    Definitions.
                                        52.226–2 Historically Black College or                  Public Law 109–163, re-designated the                 *     *     *    *    *
                                        University and Minority Institution                     ‘‘Office of Small and Disadvantaged
                                        Representation.
                                                                                                                                                        (b) * * *
                                                                                                Business Utilization’’ to the ‘‘Office of
                                                                                                                                                        (2) * * *
                                        *      *     *       *      *                           Small Business Programs’’ for the
                                                                                                Department of Defense, and the                          Office of Small and Disadvantaged
                                        HISTORICALLY BLACK COLLEGE OR                                                                                 Business Utilization means the Office of
                                        UNIVERSITY AND MINORITY                                 Departments of the Army, the Navy, and
                                        INSTITUTION REPRESENTATION (OCT                         the Air Force. The office name change,                Small Business Programs when referring
                                        2008)                                                   as well as the change in the title of the             to the Department of Defense.
                                          (a) * * *                                             director of the office, must be noted in              *     *     *    *    *
                                          Minority institution means an institution of          the FAR. This case amends the FAR to
                                        higher education meeting the requirements of            make the necessary changes.                           PART 19—SMALL BUSINESS
                                        Section 365(3) of the Higher Education Act                 This is not a significant regulatory               PROGRAMS
                                        of 1965 (20 U.S.C. 1067k), including a                  action and therefore, was not subject to
                                        Hispanic-serving institution of higher                                                                        ■ 3. Amend section 19.201 by revising
                                                                                                review under Section 6(b) of Executive                the introductory text of paragraph (d)
                                        education, as defined in Section 502(a) of the
                                                                                                Order 12866, Regulatory Planning and                  and paragraph (d)(1) to read as follows:
                                        Act (20 U.S.C. 1101a).
                                                                                                Review, dated September 30, 1993. This
                                        *      *     *       *      *                           rule is not a major rule under 5 U.S.C.               19.201    General policy.
                                        [FR Doc. E8–21384 Filed 9–16–08; 8:45 am]               804.                                                  *     *     *     *    *
                                        BILLING CODE 6820–EP–S
                                                                                                B. Regulatory Flexibility Act                           (d) The Small Business Act requires
                                                                                                                                                      each agency with contracting authority
                                                                                                  The Regulatory Flexibility Act does                 to establish an Office of Small and
                                        DEPARTMENT OF DEFENSE                                   not apply to this rule. This final rule               Disadvantaged Business Utilization (see
                                                                                                does not constitute a significant FAR                 section (k) of the Small Business Act).
                                        GENERAL SERVICES                                        revision within the meaning of FAR
                                        ADMINISTRATION                                                                                                For the Department of Defense, in
                                                                                                1.501 and Public Law 98–577, and                      accordance with the National Defense
                                                                                                publication for public comments is not                Authorization Act for Fiscal Year 2006
                                        NATIONAL AERONAUTICS AND                                required. However, the Councils will
                                        SPACE ADMINISTRATION                                                                                          (Public Law 109–163), the Office of
                                                                                                consider comments from small entities                 Small and Disadvantaged Business
                                                                                                concerning the affected FAR Parts 2 and               Utilization has been redesignated as the
                                        48 CFR Parts 2 and 19                                   19 in accordance with 5 U.S.C. 610.                   Office of Small Business Programs.
                                        [FAC 2005–27; FAR Case 2008–001; Item                   Interested parties must submit such                   Management of the office shall be the
                                        II; Docket 2008–001; Sequence 12]                       comments separately and should cite 5                 responsibility of an officer or employee
                                                                                                U.S.C. 601, et seq. (FAC 2005–27, FAR                 of the agency who shall, in carrying out
                                        RIN 9000–AL04
                                                                                                case 2008–001), in correspondence.                    the purposes of the Act—
                                        Federal Acquisition Regulation; FAR                     C. Paperwork Reduction Act                              (1) Be known as the Director of Small
                                        Case 2008–001, Changing the Name of                                                                           and Disadvantaged Business Utilization,
                                                                                                  The Paperwork Reduction Act does
                                        the Office of Small and Disadvantaged                                                                         or for the Department of Defense, the
                                                                                                not apply because the changes to the
                                        Business Utilization for DoD
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                                                                                                FAR do not impose information                         Director of Small Business Programs;
                                        AGENCIES: Department of Defense (DoD),                  collection requirements that require the              *     *     *     *    *
                                        General Services Administration (GSA),                  approval of the Office of Management                  ■ 3. Amend section 19.702 by revising
                                        and National Aeronautics and Space                      and Budget under 44 U.S.C. 3501, et                   the second and third sentences of
                                        Administration (NASA).                                  seq.                                                  paragraph (d) to read as follows:


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                                        53994        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        19.702   Statutory requirements.                        earlier resolution adopted by the FPI                 ■ 1. The authority citation for 48 CFR
                                        *     *     *    *    *                                 Board provides that the increased dollar              parts 4, 8, 9, 18, 44, and 52 continues
                                                                              ´ ´
                                          (d) * * * However, the mentor-protege                 threshold necessary to obtain FPI                     to read as follows:
                                        agreement must have been approved by                    clearance would become effective upon                   Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                        the Director, Small Business Programs                   the publication of appropriate                        chapter 137; and 42 U.S.C. 2473(c).
                                        of the cognizant DoD military                           modification to the FAR.
                                        department or defense agency, before                      This final rule amends the FAR to                   PART 4—ADMINISTRATIVE MATTERS
                                        developmental assistance costs may be                   reflect the threshold increase from
                                                                                                $2,500 to $3,000. No waiver is required               4.602    [Amended]
                                        credited against subcontract goals. A list
                                        of approved agreements may be                           to buy from an alternative source below               ■ 2. Amend section 4.602 paragraph
                                        obtained at http://www.acq.osd.mil/                     $3,000. Customers may, however, still                 (a)(2) by removing ‘‘and nonprofit
                                        osbp/mentorlprotege/.                                   purchase from FPI at, or below, this                  agencies’’ and adding ‘‘and AbilityOne
                                        [FR Doc. E8–21385 Filed 9–16–08; 8:45 am]               threshold, if they so choose.                         nonprofit agencies’’ in its place.
                                                                                                  The Committee for Purchase From
                                        BILLING CODE 6820–EP–S                                                                                        4.606    [Amended]
                                                                                                People Who Are Blind or Severely
                                                                                                Disabled, which administers the Javits-               ■ 3. Amend section 4.606 paragraph
                                                                                                Wagner-O’Day Act, has changed its                     (c)(3) by removing ‘‘JWOD’’ and adding
                                        DEPARTMENT OF DEFENSE                                                                                         ‘‘AbilityOne’’ in its place.
                                                                                                program name to the AbilityOne
                                        GENERAL SERVICES                                        Program (formerly JWOD Program). The                  PART 8—REQUIRED SOURCES OF
                                        ADMINISTRATION                                          Committee changed the program’s name                  SUPPLIES AND SERVICES
                                                                                                to the AbilityOne Program through the
                                        NATIONAL AERONAUTICS AND                                Federal Register on November 27, 2006                 ■ 4. Amend section 8.602 by revising
                                        SPACE ADMINISTRATION                                    (71 FR 68492). This final rule will                   the introductory text of paragraph (c)
                                                                                                update the name of the program for all                and paragraph (c)(1) to read as follows.
                                        48 CFR Parts 4, 8, 9, 18, 44, and 52                    occurrences in the FAR.
                                                                                                  This is not a significant regulatory                8.602    Policy.
                                        [FAC 2005–27; FAR Case 2007–015; Item                                                                         *      *    *     *    *
                                        III; Docket 2008–0001; Sequence 16]                     action and, therefore, was not subject to
                                                                                                review under Section 6(b) of Executive                  (c) In some cases where FPI and an
                                        RIN 9000–AK96                                           Order 12866, Regulatory Planning and                  AbilityOne participating nonprofit
                                                                                                Review, dated September 30, 1993. This                agency produce identical items (see
                                        Federal Acquisition Regulation; FAR                     rule is not a major rule under 5 U.S.C.               8.603), FPI grants a waiver to permit the
                                        Case 2007–015, Administrative                           804.                                                  Government to purchase a portion of its
                                        Changes to the FPI Blanket Waiver and                                                                         requirement from the AbilityOne
                                        the JWOD Program Name                                   B. Regulatory Flexibility Act                         participating nonprofit agency. When
                                        AGENCIES: Department of Defense (DoD),                     The Regulatory Flexibility Act does                this occurs, the portion of the
                                        General Services Administration (GSA),                  not apply to this rule. The final rule                requirement for which FPI has granted
                                        and National Aeronautics and Space                      does not constitute a significant FAR                 a waiver—
                                        Administration (NASA).                                  revision within the meaning of FAR                      (1) Shall be purchased from the
                                                                                                1.501 and Pub. L. 99–577, and                         AbilityOne participating nonprofit
                                        ACTION: Final rule.
                                                                                                publication for public comments is not                agency using the procedures in Subpart
                                        SUMMARY:   The Civilian Agency                          required. However, the Councils will                  8.7; and
                                        Acquisition Council and the Defense                     consider comments from small entities                 *      *    *     *    *
                                        Acquisition Regulations Council                         concerning the affected FAR parts 4, 8,               ■ 5. Amend section 8.603 by revising
                                        (Councils) have agreed on a final rule                  9, 18, 44 and 52 in accordance with 5                 the introductory paragraph; and
                                        amending the Federal Acquisition                        U.S.C. 610. Interested parties must                   removing from paragraphs (a)(2) and
                                        Regulation (FAR) to increase the blanket                submit such comments separately and                   (b)(1) ‘‘JWOD’’ and adding ‘‘AbilityOne’’
                                        waiver threshold for small dollar-value                 should cite 5 U.S.C. 601, et seq. (FAC                in its place.
                                        purchases from Federal Prison                           2005–27, FAR Case 2007–015), in
                                                                                                correspondence.                                       8.603    Purchase priorities.
                                        Industries (FPI) by Federal agencies and
                                        to change the name of the JWOD                                                                                  FPI and nonprofit agencies
                                                                                                C. Paperwork Reduction Act                            participating in the AbilityOne Program
                                        Program to the AbilityOne Program.
                                                                                                  The Paperwork Reduction Act does                    under the Javits-Wagner-O’Day Act (see
                                        DATES: Effective Date: October 17, 2008.
                                                                                                not apply because the changes to the                  Subpart 8.7) may produce identical
                                        FOR FURTHER INFORMATION CONTACT Mr.                                                                           supplies or services. When this occurs,
                                                                                                FAR do not impose information
                                        William Clark, Procurement Analyst, at                  collection requirements that require the              ordering offices shall purchase supplies
                                        (202) 219–1813 for clarification of                     approval of the Office of Management                  and services in the following priorities:
                                        content. For information pertaining to                  and Budget under 44 U.S.C. 3501, et                   *     *    *      *    *
                                        status or publication schedules, contact                seq.
                                        the FAR Secretariat at (202) 501–4755.                                                                        8.605    [Amended]
                                        Please cite FAC 2005–27, FAR case                       List of Subjects in 48 CFR Parts 4, 8, 9,             ■  6. Amend section 8.605 by removing
                                        2007–015.                                               18, 44, and 52                                        from paragraph (e) ‘‘$2,500’’ and adding
                                        SUPPLEMENTARY INFORMATION:                                  Government procurement.                           ‘‘$3,000’’ in its place.
                                                                                                  Dated: September 9, 2008.                           ■ 7. Revise section 8.700 to read as
                                        A. Background
                                                                                                                                                      follows:
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                                          The FPI Board of Directors recently                   Al Matera,
                                        revised its 2003 resolution to increase                 Director, Office of Acquisition Policy.               8.700    Scope of subpart.
                                        the blanket waiver threshold for small                  ■ Therefore, DoD, GSA, and NASA                         This subpart prescribes the policies
                                        dollar-value purchases from FPI by                      amend 48 CFR parts 4, 8, 9, 18, 44, and               and procedures for implementing the
                                        Federal agencies. A revision to an                      52 as set forth below:                                Javits-Wagner-O’Day Act (41 U.S.C. 46–


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                         53995

                                        48c) and the rules of the Committee for                 8.713    [Amended]                                    PART 52—SOLICITATION PROVISIONS
                                        Purchase from People Who Are Blind or                   ■ 17. Amend section 8.713 by removing                 AND CONTRACT CLAUSES
                                        Severely Disabled (41 CFR Chapter 51)                   from paragraph (a) ‘‘a JWOD’’ and
                                        which implements the AbilityOne                         adding ‘‘an AbilityOne’’ in its place; and            ■  23. Amend section 52.208–9 by—
                                        Program.                                                removing from paragraph (b) ‘‘JWOD’’                  ■  a. Revising the date of the clause;
                                                                                                and adding ‘‘AbilityOne’’ in its place.               ■  b. Removing from paragraph (a)
                                        8.701   [Amended]                                                                                             ‘‘(JWOD)’’;
                                        ■  8. Amend section 8.701 by removing                   8.715    [Amended]                                    ■ c. Removing from paragraph (b) ‘‘a
                                        ‘‘JWOD’’ wherever it occurs and adding                  ■  18. Amend section 8.715 by removing                JWOD’’ and adding ‘‘an AbilityOne’’ in
                                        ‘‘AbilityOne’’ in its place.                            ‘‘JWOD’’ wherever it occurs and adding                its place; and
                                                                                                ‘‘AbilityOne’’ in its place.                          ■ d. Removing from paragraph (c)
                                        8.702   [Amended]                                                                                             ‘‘JWOD’’ and adding ‘‘AbilityOne’’ in its
                                        ■ 9. Amend section 8.702 by removing                    8.716    [Amended]                                    place.
                                        from paragraph (a) ‘‘JWOD’’ and adding                  ■  19. Amend section 8.716 by removing                ■ The revised text reads as follows:
                                        ‘‘AbilityOne’’ in its place; and removing               from the introductory paragraph ‘‘a
                                                                                                                                                      52.208–9 Contractor Use of Mandatory
                                        from paragraph (c) ‘‘the JWOD’’ and                     JWOD’’ and adding ‘‘an AbilityOne’’ in
                                                                                                                                                      Sources of Supply or Services.
                                        adding ‘‘the Javits-Wagner-O’Day’’ in its               its place.
                                                                                                                                                      *        *   *     *     *
                                        place.                                                                                                          CONTRACTOR USE OF MANDATORY
                                                                                                PART 9—CONTRACTOR
                                        8.703   [Amended]                                       QUALIFICATIONS                                        SOURCES OF SUPPLY OR SERVICES (OCT
                                                                                                                                                      2008)
                                        ■  10. Amend section 8.703 by removing                  ■  20. Amend section 9.107 by revising
                                        ‘‘JWOD’’ and adding ‘‘AbilityOne’’ in its                                                                     *        *   *     *     *
                                                                                                the section heading and paragraph (a);                [FR Doc. E8–21386 Filed 9–16–08; 8:45 am]
                                        place; removing ‘‘http://www.jwod.gov/                  and removing from paragraphs (b) and
                                        procurementlist’’ and adding ‘‘http://                  (d) ‘‘JWOD’’ and adding ‘‘AbilityOne’’ in
                                                                                                                                                      BILLING CODE 6820–EP–S
                                        www.abilityone.gov/jwod/PL.html’’ in                    its place. The revised text reads as
                                        its place; and removing                                 follows:
                                        ‘‘info@jwod.gov’’ and adding                                                                                  DEPARTMENT OF DEFENSE
                                        ‘‘info@abilityone.gov’’ in its place.                   9.107 Surveys of nonprofit agencies
                                                                                                participating in the AbilityOne Program
                                                                                                                                                      GENERAL SERVICES
                                        8.704   [Amended]                                       under the Javits-Wagner-O’Day Act.                    ADMINISTRATION
                                        ■  11. Amend section 8.704 by removing                    (a) The Committee for Purchase From
                                        from the introductory text of paragraph                                                                       NATIONAL AERONAUTICS AND
                                                                                                People Who Are Blind or Severely
                                        (a) ‘‘The JWOD’’ and adding ‘‘The Javits-                                                                     SPACE ADMINISTRATION
                                                                                                Disabled (Committee), as authorized by
                                        Wagner-O’Day’’ in its place, and                        41 U.S.C. 46–48c, determines what
                                        removing ‘‘from JWOD’’ and adding                                                                             48 CFR Parts 5, 6, 12, 18, 26, and 52
                                                                                                supplies and services Federal agencies
                                        ‘‘from AbilityOne’’ in its place; and                   are required to purchase from                         [FAC 2005–27; FAR Case 2006–014; Item
                                        removing from paragraphs (a)(1)(ii),                    AbilityOne participating nonprofit                    IV; Docket 2007–0001; Sequence 7]
                                        (a)(2)(i), and (c) ‘‘JWOD’’ and adding                  agencies serving people who are blind                 RIN 9000–AK54
                                        ‘‘AbilityOne’’ in its place.                            or have other severe disabilities (see
                                                                                                Subpart 8.7). The Committee is required               Federal Acquisition Regulation; FAR
                                        8.705–1    [Amended]
                                                                                                to find an AbilityOne participating                   Case 2006–014, Local Community
                                        ■ 12. Amend section 8.705–1 by                          nonprofit agency capable of furnishing                Recovery Act of 2006
                                        removing ‘‘JWOD’’ wherever it occurs                    the supplies or services before the
                                        and adding ‘‘AbilityOne’’ in its place.                 nonprofit agency can be designated as a               AGENCIES: Department of Defense (DoD),
                                                                                                mandatory source under the AbilityOne                 General Services Administration (GSA),
                                        8.705–2    [Amended]                                                                                          and National Aeronautics and Space
                                                                                                Program. The Committee may request a
                                        ■ 13. Amend section 8.705–2 by                                                                                Administration (NASA).
                                                                                                contracting office to assist in assessing
                                        removing ‘‘a JWOD’’ and adding ‘‘an                                                                           ACTION: Final rule.
                                                                                                the capabilities of a nonprofit agency.
                                        AbilityOne’’ in its place.
                                                                                                *     *    *      *     *                             SUMMARY:    The Civilian Agency
                                        8.705–3    [Amended]
                                                                                                                                                      Acquisition Council and the Defense
                                        ■  14. Amend section 8.705–3 by                         PART 18—EMERGENCY
                                                                                                                                                      Acquisition Regulations Council
                                        removing from paragraphs (a) and (c)                    ACQUISITIONS
                                                                                                                                                      (Councils) have adopted as final, with a
                                        ‘‘JWOD’’ and adding ‘‘AbilityOne’’ in its               ■ 21. Revise section 18.107 to read as                minor change to the second interim
                                        place.                                                  follows:                                              rule, two interim rules amending the
                                        8.705–4    [Amended]
                                                                                                                                                      Federal Acquisition Regulation (FAR) to
                                                                                                18.107    AbilityOne specification changes.           implement amendments to the Robert T.
                                        ■  15. Amend section 8.705–4 by                           Contracting officers are not held to the            Stafford Disaster Relief and Emergency
                                        removing from paragraphs (a) and (b)                    notification required when changes in                 Assistance Act. The first interim rule
                                        ‘‘JWOD’’ and adding ‘‘AbilityOne’’ in its               AbilityOne specifications or                          was published in the Federal Register at
                                        place; and removing from paragraph (c)                  descriptions are required to meet                     71 FR 44546, August 4, 2006. The
                                        ‘‘a JWOD’’ and adding ‘‘an AbilityOne’’                 emergency needs. (See 8.712(d).)                      second interim rule was published in
                                        in its place.                                                                                                 the Federal Register at 72 FR 63084,
                                                                                                PART 44—SUBCONTRACTING                                November 7, 2007.
                                        8.706, 8.707, 8.708, 8.710, 8.711, and 8.712            POLICIES AND PROCEDURES
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                                          [Amended]                                                                                                   DATES: Effective Date: October 17, 2008.
                                        ■ 16. Amend sections 8.706, 8.707,                      44.202–2    [Amended]                                 FOR FURTHER INFORMATION CONTACT: For
                                        8.708, 8.710, 8.711, and 8.712 by                       ■  22. Amend section 44.202–2 by                      clarification of content, contact Mr.
                                        removing ‘‘JWOD’’ wherever it occurs                    removing from paragraph (a)(4)(ii)                    William Clark, Procurement Analyst, at
                                        and adding ‘‘AbilityOne’’ in its place.                 ‘‘(JWOD)’’.                                           (202) 219–1813. For information


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                                        53996        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        pertaining to status or publication                     contracts already in effect be                        DEPARTMENT OF DEFENSE
                                        schedules, contact the Regulatory                       transitioned to local area organizations,
                                        Secretariat at (202) 501–4755. Please                   firms or individuals, unless the agency               GENERAL SERVICES
                                        cite FAC 2005–27, FAR case 2006–014.                    head determines it is not feasible or                 ADMINISTRATION
                                        SUPPLEMENTARY INFORMATION:                              practicable. The Councils expect that
                                                                                                more work will be transitioned to small               NATIONAL AERONAUTICS AND
                                        A. Background                                                                                                 SPACE ADMINISTRATION
                                                                                                businesses than away from them. The
                                           This final rule amends the Federal                   Government Accountability Office
                                        Acquisition Regulation implementing                     (GAO) report on Hurricane Katrina                     48 CFR Part 6
                                        amendments to the Robert T. Stafford
                                                                                                Small Business Contracts (GAO–07–                     [FAC 2005–27; FAR Case 2007–007; Item
                                        Disaster Relief and Emergency                                                                                 V; Docket 2008–001; Sequence 17]
                                                                                                205) found that businesses in the three
                                        Assistance Act at 42 U.S.C. 5150.
                                           The Local Community Recovery Act                     states primarily affected by the                      RIN 9000–AL08
                                        of 2006 amended the Robert T. Stafford                  hurricane received $1.9 billion, which
                                        Disaster Relief and Emergency                           was 18 percent of the $11.6 billion spent             Federal Acquisition Regulation; FAR
                                        Assistance Act to authorize set-asides                  by DHS, GSA, DoD and the Army Corps                   Case 2007–007, Additional
                                        for major disaster or emergency                         of Engineers between August 1, 2005                   Requirements for Competition
                                        assistance acquisitions to businesses                   and June 30, 2006. Small businesses                   Advocate Annual Reports
                                        that reside or primarily do business in                 received 66 percent of the $1.9 billion               AGENCIES: Department of Defense (DoD),
                                        the geographic area affected by the                     awarded to those local businesses. The                General Services Administration (GSA),
                                        disaster or emergency. DoD, GSA, and                    Councils believe this shows that small                and National Aeronautics and Space
                                        NASA published an interim rule in the                   businesses would not be hurt by a local               Administration (NASA).
                                        Federal Register at 71 FR 44546, August                 area set-aside.                                       ACTION: Final rule.
                                        4, 2006, to implement this statutory
                                        amendment.                                              C. Paperwork Reduction Act                            SUMMARY:   The Civilian Agency
                                           Subsequently, Section 694 of the                                                                           Acquisition Council and the Defense
                                                                                                  The Paperwork Reduction Act does
                                        Department of Homeland Security                                                                               Acquisition Regulations Council
                                                                                                not apply because the changes to the
                                        Appropriations Act of 2007, Pub. L.                                                                           (Councils) have agreed on a final rule
                                        109–295, amended the Robert T.                          FAR do not impose information
                                                                                                collection requirements that require the              amending the Federal Acquisition
                                        Stafford Disaster Relief and Emergency                                                                        Regulation (FAR) to require that annual
                                        Assistance Act to enact requirements for                approval of the Office of Management
                                                                                                                                                      reviews by executive agency
                                        transitioning work under existing                       and Budget under 44 U.S.C. 3501, et
                                                                                                                                                      competition advocates be provided in
                                        contracts. A second interim rule was                    seq.
                                                                                                                                                      writing to both the agency senior
                                        published in the Federal Register at 72                 List of Subjects in 48 CFR Parts 5, 6, 12,            procurement executive and the agency
                                        FR 63084, November 7, 2007, to address                  18, 26, and 52                                        chief acquisition officer, if designated,
                                        this statutory amendment. The second                                                                          and that the reports specifically address
                                        interim rule addressed the public                           Government procurement.                           the quality of planning, executing, and
                                        comments received on the first interim                                                                        managing of task and delivery orders
                                                                                                  Dated: September 9, 2008.
                                        rule. There were no comments received                                                                         over $1 million.
                                        on the second interim rule.                             Al Matera,
                                                                                                                                                      DATES: Effective Date: October 17, 2008.
                                           This is not a significant regulatory                 Director, Office of Acquisition Policy.
                                                                                                                                                      FOR FURTHER INFORMATION CONTACT Mr.
                                        action and, therefore, was not subject to
                                                                                                ■ Accordingly, under the authority of 40              Ernest Woodson, Procurement Analyst,
                                        review under Section 6(b) of Executive
                                        Order 12866, Regulatory Planning and                    U.S.C. 121, the interim rule published at             at (202) 501–3775 for clarification of
                                        Review, dated September 30, 1993. This                  71 FR 44546, August 4, 2006, is adopted               content. For information pertaining to
                                        rule is not a major rule under 5 U.S.C.                 as a final rule, and the interim rule                 status or publication schedules, contact
                                        804.                                                    published at 72 FR 63084, November 7,                 the FAR Secretariat at (202) 501–4755.
                                                                                                2007, is adopted as a final rule with the             Please cite FAC 2005–27, FAR case
                                        B. Regulatory Flexibility Act                           following change:                                     2007–007.
                                          The Department of Defense, the                                                                              SUPPLEMENTARY INFORMATION:
                                        General Services Administration, and                    PART 26—OTHER SOCIOECONOMIC
                                                                                                PROGRAMS                                              A. Background
                                        the National Aeronautics and Space
                                        Administration certify that this final                                                                           The Administrator of the Office of
                                        rule will not have a significant                        ■ 1. The authority citation for 48 CFR                Federal Procurement Policy (OFPP)
                                        economic impact on a substantial                        part 26 continues to read as follows:                 issued a memorandum dated May 31,
                                        number of small entities within the                       Authority: 40 U.S.C. 121(c); 10 U.S.C.              2007, entitled ‘‘Enhancing Competition
                                        meaning of the Regulatory Flexibility                   chapter 137; and 42 U.S.C. 2473(c).                   in Federal Acquisition’’, to executive
                                        Act, 5 U.S.C. 601, et seq. The rule                                                                           agency chief acquisition officers and
                                                                                                ■ 2. Revise section 26.202–2 to read as               senior procurement executives that
                                        implements set-asides for local
                                        businesses in an area affected by a major               follows.                                              outlined several initiatives for
                                        disaster or emergency to promote                        26.202–2    Evaluation preference.
                                                                                                                                                      enhancing competition in Federal
                                        economic recovery.                                                                                            acquisition. The agency competition
                                          The set-aside does not replace the                      The contracting officer may use an                  advocates are required to describe
                                        small business set-aside. Both set-asides               evaluation preference, when authorized                initiatives that ensure task and delivery
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                                        can apply to an acquisition. The local                  in agency regulations or procedures.                  orders over $1,000,000 issued under
                                        set-aside encourages the use of local                   [FR Doc. E8–21387 Filed 9–16–08; 8:45 am]             multiple award contracts are properly
                                        small businesses.                                       BILLING CODE 6820–EP–S                                planned, issued, and comply with 8.405
                                          The rule also implements a new                                                                              and 16.505 in a report to the agency
                                        requirement that work performed under                                                                         senior procurement executive and the


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                        53997

                                        agency chief acquisition officer. An                    ■ d. Adding a new paragraph (b)(2)(vii);              Acquisition Regulations Council
                                        attachment to the Administrator’s May                   and                                                   (Councils) have agreed on a final rule
                                        31, 2007 memorandum entitled,                           ■ e. Revising paragraphs (b)(3) and                   amending the Federal Acquisition
                                        Enhancing Competition in Federal                        (b)(4) to read as follows:                            Regulation (FAR) to revise the policies
                                        Acquisition, contains a list of questions                                                                     and procedures for contract debts.
                                        designed to assist competition advocates                6.502    Duties and Responsibilities.
                                                                                                                                                      DATES: Effective Date: October 17, 2008
                                        in assessing the quality of competitive                 *     *      *     *     *
                                                                                                                                                      FOR FURTHER INFORMATION CONTACT: Ms.
                                        practices at their agencies. The policy                   (b) * * *
                                                                                                  (1) Review the contracting operations               Meredith Murphy, Procurement
                                        memorandum and attachment can be                                                                              Analyst, at (202) 208–6925 for
                                        found at http://www.whitehouse.gov/                     of the agency and identify and report to
                                                                                                the agency senior procurement                         clarification of content. For information
                                        omb/procurement/complcontracting/
                                                                                                executive and the chief acquisition                   pertaining to status or publication
                                        competitionlmemol053107.pdf. This
                                                                                                officer—                                              schedules, contact the FAR Secretariat
                                        FAR case implements this policy
                                                                                                                                                      at (202) 501–4755. Please cite FAC
                                        change.                                                 *     *      *     *     *
                                           This is not a significant regulatory                                                                       2005–27, FAR case 2005–018.
                                                                                                  (2) Prepare and submit an annual
                                        action and, therefore, was not subject to                                                                     SUPPLEMENTARY INFORMATION:
                                                                                                report to the agency senior procurement
                                        review under Section 6(b) of Executive                  executive and the chief acquisition                   A. Background
                                        Order 12866, Regulatory Planning and                    officer in accordance with agency
                                        Review, dated September 30, 1993. This                                                                           In 2003, the DoD Comptroller
                                                                                                procedures, describing—                               established the DoD Accounts
                                        rule is not a major rule under 5 U.S.C.
                                                                                                *     *      *     *     *                            Receivable Workgroup to evaluate the
                                        804.
                                                                                                  (vii) Initiatives that ensure task and              processes and procedures for reporting
                                        B. Regulatory Flexibility Act                           delivery orders over $1,000,000 issued                accounts receivables. This Workgroup
                                           The Regulatory Flexibility Act does                  under multiple award contracts are                    concluded that contracting officers may
                                        not apply to this rule. This final rule                 properly planned, issued, and comply                  not be properly reporting contract debts.
                                        does not constitute a significant FAR                   with 8.405 and 16.505.                                Based on the Workgroup’s
                                        revision within the meaning of FAR                        (3) Recommend goals and plans for                   recommendations, DoD established a
                                        1.501 and Public Law98–577, and                         increasing competition on a fiscal year               Contract Debt Integrated Process Team
                                        publication for public comments is not                  basis to the agency senior procurement                (IPT).
                                        required. However, the Councils will                    executive and the chief acquisition                      The mission of the IPT was to
                                        consider comments from small entities                   officer; and                                          evaluate the adequacy of DoD’s existing
                                        concerning the affected FAR Part 6 in                     (4) Recommend to the agency senior                  controls and procedures for ensuring
                                        accordance with 5 U.S.C. 610. Interested                procurement executive and the chief                   that contract debts are identified and
                                        parties must submit such comments                       acquisition officer a system of personal              recovered in a timely manner, properly
                                        separately and should cite 5 U.S.C. 601,                and organizational accountability for                 accounted for in DoD’s books and
                                        et seq. (FAC 2005–27, FAR case 2007–                    competition, which may include the use                records, and properly coordinated with
                                        007), in correspondence.                                of recognition and awards to motivate                 the appropriate Government officials.
                                                                                                program managers, contracting officers,               Contract debts result from compliance,
                                        C. Paperwork Reduction Act                              and others in authority to promote                    or a failure to comply, with the terms of
                                          The Paperwork Reduction Act does                      competition in acquisition.                           a contract and include debts identified
                                        not apply because the changes to the                    [FR Doc. E8–21388 Filed 9–16–08; 8:45 am]             by auditors, contracting officers,
                                        FAR do not impose information                           BILLING CODE 6820–EP–S                                disbursing officials, and contractors. On
                                        collection requirements that require the                                                                      May 26, 2005, a final report was issued
                                        approval of the Office of Management                                                                          that included a number of
                                        and Budget under 44 U.S.C. 3501, et                     DEPARTMENT OF DEFENSE                                 recommended FAR changes to improve
                                        seq.                                                                                                          contract debt controls and procedures,
                                                                                                GENERAL SERVICES                                      and to ensure consistency within/
                                        List of Subjects in 48 CFR Part 6                       ADMINISTRATION                                        between existing regulations.
                                          Government procurement.                                                                                        The Councils established this case to
                                          Dated: September 9, 2008.                             NATIONAL AERONAUTICS AND                              evaluate the DoD recommendations and
                                        Al Matera,                                              SPACE ADMINISTRATION                                  apply them, where appropriate,
                                        Director, Office of Acquisition Policy.                                                                       Governmentwide. The rule makes the
                                                                                                48 CFR Parts 12, 13, 32, 33, 36, 42, and              following changes:
                                        ■Therefore, DoD, GSA, and NASA                          52
                                        amend 48 CFR part 6 as set forth below:                                                                          1. Reorganizes FAR 32.6. Reorganizes
                                                                                                [FAC 2005–27; FAR Case 2005–018; Item                 FAR 32.6 to add clarity and provide a
                                        PART 6—COMPETITION                                      VI; Docket 2006–0020; Sequence 11]                    logical sequence. The section has been
                                        REQUIREMENTS                                                                                                  reorganized as follows:
                                                                                                RIN 9000–AK59
                                                                                                                                                         32.600—Scope of subpart.
                                        ■ 1. The authority citation for 48 CFR                                                                           32.601—General.
                                        part 6 continues to read as follows:                    Federal Acquisition Regulation; FAR
                                                                                                Case 2005–018, Contract Debts                            32.602—Responsibilities.
                                          Authority: 40 U.S.C. 121(c); 10 U.S.C.                                                                         32.603—Debt determination.
                                        chapter 137; and 42 U.S.C. 2473(c).                     AGENCIES: Department of Defense (DoD),                   32.604—Demand for payment.
                                        ■ 2. Amend section 6.502 by—                            General Services Administration (GSA),                   32.605—Final decisions.
                                        ■ a. Revising the introductory text of                  and National Aeronautics and Space                       32.606—Debt collection.
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                                        paragraphs (b)(1) and (b)(2);                           Administration (NASA).                                   32.607—Installment payments and
                                        ■ b. Removing from the end of the                       ACTION: Final rule.                                   deferment of collection.
                                        paragraph (b)(2)(v) the word ‘‘and’’;                                                                            32.608—Interest.
                                        ■ c. Adding to the end of paragraph                     SUMMARY:  The Civilian Agency                            32.609—Delays in receipt of notices
                                        (b)(2)(vi) the word ‘‘and’’;                            Acquisition Council and the Defense                   or demands.


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                                           32.610—Compromising debts.                           (Sec. 1481) was repealed on November                  overcollection is remitted to the
                                           32.611—Contract clause.                              5, 1990, by Public Law 101–508.                       contractor.
                                           2. Scope of Subpart. Revises FAR                        8. Demand for Payment. Consolidates                   13. Revises FAR 12.215 and 32.008 to
                                        32.600 to provide a more accurate                       all discussions of the demand for                     refer to the responsibilities of the
                                        description of the scope of this FAR                    payment in a single section, at FAR                   contracting officer at 32.604 when
                                        subpart. FAR Subpart 32.6 prescribes                    32.604, Demand for payment, to                        notified by the contractor of an
                                        policies and procedures for identifying,                include—                                              overpayment.
                                        collecting, and deferring collection of                    a. A requirement to issue the demand                  14. FAR Contract Clauses—Payment.
                                        contract debts (including interest, if                  letter except in specific circumstances;              Revises the contract clauses at FAR
                                        applicable).                                               b. A requirement that the demand                   52.212–4(i)(5) and (6); 52.232–25(d);
                                           3. Responsible Official. Replaces the                letter include accounting information to              52.232–26(c); and FAR 52.232–27(l) to
                                        term ‘‘responsible official’’ with the                  enable the payment office to correctly                assure that the contractor remits
                                        specific individual/organization                        record the amounts in the proper                      payment to the payment office (rather
                                        responsible for fulfilling the FAR                      accounts;                                             than the contracting officer) and the
                                        requirement. Some of the                                   c. A requirement that the demand                   payment office is able to properly
                                        responsibilities currently listed are                   letter include the amount of interest                 account for the remittance. Also, revises
                                        assigned to one individual/organization                 owed under statutes that require interest             Alternate I of the clause at FAR 52.212–
                                        (e.g., the Procuring Contracting Officer)               assessments from the date of                          4 to be consistent with the requirements
                                        and other responsibilities are assigned                 noncompliance to the date of repayment                of the basic clause.
                                        to another individual/organization (e.g.,               (CAS and TINA).                                          15. FAR 52.232–17, Interest. Revises
                                        the payment office). To assure a clear                     d. A paragraph implementing the                    FAR 52.232–17 to conform with the
                                        understanding of the process and                        requirements of 31 U.S.C. 3717(e)(1) and              other revisions.
                                        applicable duties, the rule specifies the               the Debt Collection Improvement Act of                   16. FAR 52.212–4 and 52.232–17.
                                        responsible party for each required                     1996; and                                             Revises the subject clauses to be
                                        action (e.g., the Procuring Contracting                    e. A paragraph addressing instances                consistent with the policy at FAR Part
                                        Officer, the Administrative Contracting                 where overpayments exist but a demand                 32:
                                        Officer, the payment office, etc.) rather               for payment is not necessary.                            a. The Government’s right to make a
                                        than referring to all parties as                           9. Final Decisions. Consolidates all               demand for payment and start the
                                        ‘‘responsible officials.’’                              discussions of final decisions in a single            interest clock running under the
                                           4. Contract Debt—General. Revises                    section at FAR 32.605, Final Decisions,               contract is ensured by adding a
                                        FAR 32.601 to specify what constitutes                  to include—                                           procedure to the Interest Clause
                                        a contract debt, rather than how a                         a. When a final decision must be                   permitting a demand for payment.
                                        contract debt may arise. In addition, this              issued;                                                  b. The Government’s right to make a
                                        section is amended to include payments                     b. A statement that the due date for a             demand for payment without first
                                        determined to be in excess of contract                  demand letter is not extended simply                  issuing a final decision of the
                                        limitations for commercial financing,                   because a final decision is being issued;             contracting officer is ensured by
                                        because such payments constitute a                      and                                                   incorporating the procedure into the
                                        contract debt.                                             c. A need to obtain evidence of receipt            interest clause. A final decision is
                                           5. Contract Debt Responsibilities—                   by the contractor to establish the                    required only if the contractor disagrees
                                        Identifying, Demanding Payment,                         starting date for interest computations               with the demand for payment.
                                        Collecting, and Liquidating. Adds a                     and the statute of limitations.                          DoD, GSA, and NASA published a
                                        section to clearly define the                              10. Debt Collection. Consolidates all              proposed rule in the Federal Register at
                                        responsibilities of the contracting officer             discussions of debt collection in a single            71 FR 62230, October 24, 2006.
                                        and the payment officials to assure an                  section, at FAR 32.606, Debt Collection,              Comments were received from three
                                        efficient and non-duplicative process.                  to include—                                           respondents in response to the proposed
                                        Under the rule—                                            a. The current requirements at FAR                 rule. The Councils considered all of the
                                           a. The contracting officer is                        32.612;                                               comments and recommendations in
                                        responsible for identifying a contract                     b. The current requirements for                    developing the final rule. A discussion
                                        debt and demanding payment of a                         transferring debts to the Department of               of the comments is provided below.
                                        contract debt. The contracting officer is               Treasury; and
                                                                                                   c. A requirement to assure the debt is             B. Disposition of Comments:
                                        prohibited from collecting contract
                                        debts or otherwise liquidating contract                 being collected by maintaining                           1. Comment. One commenter
                                        debts (e.g., offsetting the amount of the               communication between the contracting                 recommended deleting the requirement
                                        debt against existing unpaid bills due                  officer and the payment office.                       at FAR 32.607–2(a)(2) for contractors to
                                        the contractor or allowing contractors to                  11. Installment Payments and                       provide contracting officers information
                                        retain contract debts to cover amounts                  Deferment of Collection. Clarifies                    on the advisability of debt deferment to
                                        that may be payable to the contractor in                procedures for processing installment                 avoid possible over-collections when
                                        the future); and                                        payments and deferment of collection                  the contractor is not disputing the debt.
                                           b. The payment office is responsible                 requests.                                             When the contractor does not dispute
                                        for collecting payment of the contract                     12. Interest. Consolidates and                     the debt, there can be no over-
                                        debt and liquidating the contract debt.                 simplifies all discussions of interest in             collection.
                                           6. Contract Debt Determinations.                     a single section, at FAR 32.608, Interest,               Response. Under the Contract
                                        Consolidates all discussions of contract                to include—                                           Disputes Act of 1978, contractors have
                                        debt determinations in FAR 32.603,                         a. The substance of the current                    one year to file an appeal. While a
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                                        Debt Determinations, including the                      language at FAR 32.614; and                           contractor may not initially dispute the
                                        responsibility of the contracting officer                  b. Computing interest credits. The                 claim, a contractor can subsequently
                                        in making debt determinations.                          discussion focuses on how to compute                  decide to file an appeal within the
                                           7. Tax Credit. Deletes the current FAR               the interest, i.e., from the time of                  statutory time limits. Therefore, over-
                                        32.607 because the referenced tax credit                overcollection until the time the                     collections can occur when a contractor


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                                        does not initially dispute the claim but                the action is decided’’ was unnecessary               the Government becomes unnecessary
                                        subsequently files a claim. However, the                and confusing since contractors do not                and should be deleted.
                                        office designated in agency procedures                  have to file an ‘‘action’’ or appeal in                  Response. The requirements of the
                                        is responsible for determining whether                  order to be eligible for a deferment of               subpart apply to all contractor requests
                                        the deferment of collection should be                   collection.                                           for deferment of collections, not just to
                                        granted to avoid possible over-                            Response. The Councils agree and                   deferments granted by the Government.
                                        collections. That determination does not                deleted the statement.                                Therefore, there can be over-collections
                                        require input from the contractor.                         6. Comment. One commenter                          when the Government does not grant
                                        Therefore, the Councils deleted the                     recommended deleting the requirement                  the deferment of collections. In
                                        requirement as recommended. In                          at FAR 32.607–2(j) for contractors to                 addition, the requirements apply to all
                                        addition, the proposed rule also                        present ‘‘a good and sufficient bond or               Government over-collections, not just
                                        required contractors to provide the same                other acceptable collateral in the                    those involving deferment of
                                        information when the contractor is                      amount of the claim’’ for a deferment of              collections. Therefore, the coverage was
                                        disputing the debt. The Councils also                   collection because the requirement                    relocated to the subsection on interest
                                        deleted that requirement since the                      conflicts with the requirements that                  credits, and the last sentence of subpart
                                        determination does not require input                    allow deferment of collections when a                 32.607–2(j) was deleted as
                                        from the contractor.                                    claim is not filed. The contractor’s                  recommended. Also, the methodology
                                           2. Comment. One commenter                            financial condition and promise to pay                for calculating interest in the subpart
                                        recommended moving the requirement                      are considered ‘‘other acceptable                     did conflict with the methodology in the
                                        at FAR 32.607–2(c)(2) for contracting                   collateral.’’ Also, the requirement for the           subpart on ‘‘interest credits.’’ Therefore,
                                        officers to consider any information                    contractor to present the collateral to the           the rule was revised to make the
                                        necessary to develop a recommendation                   contracting officer within 30 days of                 requirements consistent. Interest on
                                        on a deferment request before the                       filing a dispute makes no sense because               Government over-collections begins on
                                        requirement for the contracting officer                 there is no time limit requirement for                the date of over-collection, not the date
                                        to forward the recommendation on the                    filing a dispute.                                     of the first demand for payment.
                                        deferment request to the office                                                                                  8. Comment. One commenter
                                                                                                   Response. A contractor’s financial
                                        designated in agency procedures since                                                                         recommending deleting the
                                                                                                condition and promise to pay are not
                                        the contracting officer should consider                                                                       methodology for computing interest
                                                                                                ‘‘other acceptable collateral.’’ Collateral
                                        the information before developing and                                                                         charges from 32.608–1(a)(2) because it
                                                                                                is property pledged by a contractor to
                                        sending the recommendation.                                                                                   duplicates coverage in the clause at FAR
                                                                                                protect the interests of the Government.
                                           Response. The Councils agreed and                                                                          52.232–7, Interest.
                                                                                                However, the office designated in                        Response. The Councils agree the
                                        revised the rule as recommended.
                                           3. Comment. One commenter said the                   agency procedure, not the contracting                 language is redundant and deleted the
                                        statement at FAR 32.607–2(d) that an                    officer, is responsible for determining               text as recommended.
                                        agency is required to use current year                  whether a bond or other acceptable                       9. Comment. One commenter
                                        unexpired funds to pay interest on over-                collateral is needed. Therefore, the                  recommended adding the requirement
                                        collections is unnecessary since the                    Councils deleted the statement as                     for making interest on contract debts
                                        information is related to a financial                   recommended.                                          part of the required elements for
                                        management matter, not a contracting                       7. Comment. One commenter said the                 deferment agreements at 32.608–2(g)
                                        matter.                                                 statement at FAR 32.607–2(j) that ‘‘any               and deleting the requirement at 32.608–
                                           Response. The rule requires                          amount collected by the Government in                 1(b) because it duplicates coverage at
                                        contracting officers to provide a                       excess of the amount found to be due on               32.607(c) on installment payments and
                                        recommendation on the contractor’s                      appeal shall be refunded to the                       deferment of collection.
                                        request for a deferment of collection,                  contractor with interest’’ was misplaced                 Response. The Councils agree and
                                        including the advisability of deferment                 since there can be no excess collection               revised the rule as recommended.
                                        to avoid possible over-collections.                     if payment is deferred. Also, this                       10. Comment. One commenter
                                        Contracting officers need to know the                   requirement would apply to cases where                recommended revising the coverage at
                                        possible ramifications of over-                         there is no deferment of collection but               32.608–2(b)(1) on interest credits to say
                                        collections to make an informed                         including it only in the subpart on                   interest ‘‘to be credited’’ instead of
                                        recommendation.                                         deferment of collection means it would                interest ‘‘to be charged’’ since the
                                           4. Comment. One commenter stated                     only apply to cases with deferments of                subsection deals with ‘‘interest credits.’’
                                        that ‘‘actions filed by contractors shall               collection. The requirement should be                    Response. The Councils disagree and
                                        not suspend or delay collection’’ in the                addressed in subsection FAR 32.608–2                  leave the rule as is.
                                        last paragraph at FAR 32.607–2(j),                      on ‘‘interest credits.’’ Further, the                    11. Comment. One commenter said
                                        ‘‘deferment of collection,’’ made no                    requirement says interest will be                     including information such as lines of
                                        sense since the subsection provides the                 refunded to the contractor for any                    accounting in the demand for payment
                                        rule for processing a deferment to                      amounts collected by the Government in                is excessive and not particularly
                                        suspend or defer collection. The                        excess of the amount found due on                     relevant to the contractor. Instead,
                                        commenter recommended rewording                         appeal from ‘‘the date of collection’’                require the contracting officer to provide
                                        the requirement to say ‘‘the filing of an               conflicts with the requirements in the                the distribution of the debt by line of
                                        action under the Disputes clause does                   subsection on ‘‘interest credits’’ that               accounting and ‘‘additional
                                        not suspend or delay the need for                       says the interest will be computed from               information’’ to allow the payment or
                                        collection of a debt’’ and moving the                   the ‘‘date specified in the first demand              finance office to identify the affected
                                        requirement to the beginning of the                     for payment.’’ If the requirement is                  lines of accounting, appropriations, and
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                                        subsection.                                             addressed in the subsection on ‘‘interest             contracts, when the demand for
                                           Response. The Councils agree and                     credits,’’ the last sentence of subpart               payment is forwarded to the payment
                                        revised the rule as recommended.                        FAR 32.607–2(j) that includes                         office. Finance offices have procedures
                                           5. Comment. One commenter said the                   additional requirements for calculating               for debt collection or other recovery of
                                        statement in FAR 32.607–2(j) that ‘‘until               interest on excess amounts collected by               monies owed that are in accordance


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                                        with Department of Treasury regulations                 Improvement Act of 1996. The                             Response. Approving or denying a
                                        and policy. Most payment offices also                   Department of Treasury will then offset               contractor’s request for installment
                                        know how to apply payments. Some of                     the debt against any payment made by                  payments or deferment of collections is
                                        these procedures may overlap other                      a Federal agency under any contract and               not the same as issuing a final decision.
                                        policy or regulations such as those                     other Federal payments to the                         The contracting officer is required to
                                        issued by the Department of Treasury.                   delinquent debt holder under the                      issue a demand for payment as soon as
                                           Response. The lines of accounting are                cognizant contract or other contracts                 the contracting officer has determined
                                        required for agency finance or payment                  awarded by the agency issuing the                     the existence and amount of a debt. In
                                        offices to properly record the debt. If the             demand letter.                                        most cases, contractors willingly repay
                                        lines of accounting are not readily                        15. Comment. One commenter                         the debt after receiving the demand for
                                        available, the rule authorizes issuing the              recommended including a statement in                  payment. If a contractor instead requests
                                        demand for payment without the lines                    the required notice at FAR 32.604(b)(8)               a deferment of collection or otherwise
                                        of accounting. The Councils see no                      that requests for installment payments                does not repay the debt in accordance
                                        reason to require contracting officers to               or deferment of collection must be                    with the demand for payment, the
                                        separately report the lines of accounting               written, provided to the contracting                  Government is required to initiate a
                                        if the information is readily available                 officer, and include ‘‘any information                claim against the contractor to ensure
                                        when the demand for payment is made.                    required.’’                                           the debt is repaid. Government claims
                                        In addition, the Councils are unaware of                   Response. The commenter did not                    require a contracting officer’s final
                                        any conflict with Treasury or other                     provide rationale for the change;                     decision under the Contract Disputes
                                        agency’s policy or regulations.                         however, the rule already requires that               Act.
                                           12. Comment. One commenter                           requests for installment payments or                     18. Comment. One commenter said
                                        recommended combining the                               deferment of collection be written (see               the proposed coverage at 32.607(b)(1) on
                                        requirements of FAR 32.604(b)(4)(iii)                   32.607–1 and 32.607–2(a)). The rule also              the circumstances that might justify
                                        and (i).                                                identifies to whom the contractor                     debt deferment or installment payments
                                           Response. The Councils believe the
                                                                                                should submits its request, i.e., payment             when the contractor has not appealed
                                        commenter is recommending combining
                                                                                                office for installment payments and                   the debt or filed an action under the
                                        the requirements at FAR 32.604(b)(4)(iii)
                                                                                                contracting officer for deferment of                  disputes clause appears to be
                                        and FAR 32.604(b)(4)(i). Both references
                                                                                                collections. Finally, nothing in the rule             information necessary for agency
                                        discuss the methodology for calculating
                                                                                                precludes agencies from requiring                     financing offices, not contracting
                                        interest on contract debts that result
                                                                                                contractors to provide additional                     officers, since the office designed to
                                        from specific contract terms. The
                                                                                                information to make a decision on a                   approve or deny these actions is
                                        Councils agree and have revised the rule
                                                                                                request for installment payments or                   probably the payment or finance office.
                                        as recommended.
                                           13. Comment. One commenter said                      deferment.                                            The commenter questioned the purpose
                                        the rule should also allow contractors to                  16. Comment. One commenter asked                   of and need for its inclusion in the FAR.
                                        remit checks ‘‘payable to the agency,’’                 if there was a point in time that the                    Response. Contracting officers are
                                        instead of requiring that the checks be                 contracting officer is expected to do                 required to provide the office designated
                                        ‘‘payable to the Treasurer of the United                more than follow up with the payment                  in agency procedures for a decision on
                                        States’’ because payments due an                        office to determine whether the debt has              a deferment request a recommendation
                                        agency are made payable to the agency.                  been collected and credited to the                    on the requests. Therefore, contracting
                                           Response. Section 2015 of the                        correct appropriations.                               officers need to understand the
                                        Treasury Financial Manual (TFM) says                       Response. The payment office is                    circumstances that might justify a
                                        checks should be made payable to the                    responsible for collecting debts                      deferment of collection. In addition, if
                                        organization maintaining the account to                 identified by the contracting officer. As             the contractor’s operations under
                                        be credited, not to the Department of                   discussed above, agencies are required                national defense contracts will be
                                        Treasury. Therefore, the Councils                       to transfer any debt that is delinquent               seriously impaired by immediate
                                        revised the rule to be consistent with                  more than 180 days to the Department                  repayment, the contracting officer
                                        the TFM.                                                of Treasury for collection. The                       should provide the payment or finance
                                           14. Comment. One commenter asked                     Department of Treasury then offsets the               office information that will be
                                        whether the required notification at                    debt against any payment made by a                    considered for an installment payment
                                        32.604(b)(6) that the payment office may                Federal agency under any contract and                 agreement or debt deferment. The
                                        offset the debt against any payments                    other Federal payments to the                         Councils note the subject requirements
                                        otherwise due the contractor means any                  delinquent debt holder. As stated in the              are not changed by this rule.
                                        payment owed to the contractor by any                   rule, contracting officers are not                       19. Comment. One commenter
                                        Federal agency under any contract or                    authorized to collect contract debts or               questioned the need for the deferment/
                                        only payments under the cognizant                       otherwise agree to liquidate contract                 installment agreement requirements at
                                        contract or other contracts awarded by                  debts.                                                32.607(b)(2) in the FAR since
                                        the agency issuing the demand for                          17. Comment. One commenter said                    contracting officers are not authorized to
                                        payment.                                                the requirement at 32.607(a) that the                 approve or deny requests for deferments
                                           Response. For the first 180 days after               contracting officer cannot approve or                 or installment payments.
                                        the demand for payment, the agency                      deny a contractor’s request for                          Response. The Councils note the
                                        issuing the demand for payment will                     installment payments or deferment of                  subject requirements are not changed by
                                        attempt to offset the debt against any                  collections appears to contradict the                 this rule. The Councils believe it is
                                        payments otherwise due from the                         requirement at FAR 32.605(a)(3) for the               appropriate to include the language so
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                                        agency to the contractor. If an agency is               contracting officer to issue a final                  contracting officers and contractors
                                        unable to recover the debt within 180                   decision if the contractor requests a                 understand what will be required if an
                                        days, agencies are required to transfer                 deferment of collection on a debt                     agreement is reached. While the
                                        the debt to the Department of Treasury                  previously demanded by the contracting                contracting officers do not approve or
                                        in accordance with the Debt Collection                  officer.                                              deny these requests, contracting officers


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                                54001

                                        routinely provide contractors assistance                   23. Comment. One commenter                         Review, dated September 30, 1993. This
                                        when preparing the requests.                            recommended revising the coverage on                  rule is not a major rule under 5 U.S.C.
                                           20. Comment. One commenter                           ‘‘compromise’’ at 32.610 because the                  804.
                                        questioned how the requirement for the                  contracting officer has the authority to
                                        contracting officer to forward to the                                                                         C. Regulatory Flexibility Act
                                                                                                settle any Government claim under the
                                        office designated in agency procedures                  Contract Disputes Act at any time                       The Department of Defense, the
                                        for a decision (a) a copy of the                        except for claims pending litigation,                 General Services Administration, and
                                        contractor’s request for a deferment of                 which are the responsibility of the                   the National Aeronautics and Space
                                        collection, (b) a recommendation on that                Attorney General. While the term                      Administration certify that this final
                                        request, (c) a statement as to whether                  ‘‘compromise’’ is not defined in the                  rule will not have a significant
                                        the contractor has an appeal pending or                 Federal Claims Collection Act or the                  economic impact on a substantial
                                        action filed under the disputes clause,                 implementing regulations at 31 CFR                    number of small entities within the
                                        and (d) a copy of the contracting                       900.2, Black’s Law Dictionary defines                 meaning of the Regulatory Flexibility
                                        officer’s final decision (see 32.607–                   ‘‘compromise’’ as settlement. The                     Act, 5 U.S.C. 601, et seq., because the
                                        2(c)(1)) is different from the contracting              commenter recommended revising the                    regulatory changes are predominantly
                                        officer’s final decision.                               coverage to allow contracting officers to             internal operating procedures for
                                           Response. The contracting officer’s                  ‘‘compromise’’ debt claims that fall                  contracting officers and will not
                                        final decision is one of the four items                 under the Contract Disputes Act to be                 significantly change duties of small
                                        the contracting officer is required to                  consistent with FAR 33.204 and 33.210.                entities under their contract.
                                        forward to the office designated in                        Response. Contracting officers have
                                        agency procedure for a decision on the                                                                        D. Paperwork Reduction Act
                                                                                                the authority to resolve all contractual
                                        deferment request. The other required                   issues in controversy. Contracting                      The Paperwork Reduction Act does
                                        items provide additional information                    officers do not have the authority to                 not apply because the changes to the
                                        used by the office designated in agency                 compromise any resulting debt after the               FAR do not impose information
                                        procedure for a decision on the                         controversial issues have been resolved.              collection requirements that require the
                                        deferment request. Finally, a contracting                  24. Comment. One commenter                         approval of the Office of Management
                                        officer has sole authority to determine                 recommended requiring contracting                     and Budget under 44 U.S.C. 3501, et
                                        the existence and amount of contract                    officers to attempt to resolve any                    seq.
                                        debts and to issue the final decision.                  disputes over the existence of a debt or
                                                                                                                                                      List of Subjects in 48 CFR Parts 12, 13,
                                        That contracting officer’s final decision               the amount through negotiations as part
                                                                                                                                                      32, 33, 36, 42, and 52
                                        is not subject to any other office’s                    of the initial debt determination at FAR
                                        decision.                                               32.605(a) to be consistent with the                     Government procurement.
                                           21. Comment. One commenter said                      requirements at FAR 33.204.                             Dated: September 9, 2008.
                                        the coverage at 32.607–2(f) that states                    Response. The rule is consistent with              Al Matera,
                                        contracts and arrangements for                          FAR 33.204, which requires contracting                Director, Office of Acquisition Policy.
                                        deferment shall not provide that a claim                officers to use reasonable efforts to
                                        of the Government will not become due                   resolve controversies prior to the                    ■ Therefore, DoD, GSA, and NASA
                                        and payable pending mutual agreement                    submission of a claim. Making a debt                  amend 48 CFR parts 12, 13, 32, 33, 36,
                                        on the amount of the claim or, in the                   determination does not constitute                     42, and 52 as set forth below:
                                                                                                                                                      ■ 1. The authority citation for 48 CFR
                                        case of dispute, until a decision is                    submission of a claim. A Government
                                        reached is confusing and unclear as to                  claim is submitted when the contracting               parts 12, 13, 32, 33, 36, 42, and 52
                                        its meaning.                                            officer issues a final decision on the                continues to read as follows:
                                           Response. The Councils note that the                 claim. Nothing in the rule prevents the                 Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                        coverage is not changed by this rule.                   Government from attempting to resolve                 chapter 137; and 42 U.S.C. 2473(c).
                                        However, the Councils believe stating                   controversies prior to the contracting
                                        ‘contracts and arrangements for                                                                               PART 12—ACQUISITION OF
                                                                                                officer’s final decision.
                                        deferments’ could be confusing since                       25. Comment. One commenter said                    COMMERCIAL ITEMS
                                        deferment agreements are binding                        the coverage on final decisions at FAR                ■ 2. Revise section 12.215 to read as
                                        contracts between the contractor and the                32.605 duplicates the coverage on                     follows:
                                        Government. Therefore, the Councils                     contracting officer’s decisions at FAR
                                        deleted the reference to ‘‘contracts’’ and              33.211. The commenter also said all                   12.215    Notification of overpayment.
                                        changed ‘‘arrangements for deferment’’                  coverage on final decisions should be                   If the contractor notifies the
                                        to ‘‘deferment agreements’’ to clarify the              addressed in one FAR section and that                 contracting officer of a duplicate
                                        requirement. The remaining coverage                     section should be FAR Subpart 33.2,                   payment or that the Government has
                                        says that the Government retains the                    Disputes and Appeals.                                 otherwise overpaid, the contracting
                                        right to collect the debt at any time. The                 Response. FAR 32.6 prescribes the                  officer shall follow the procedures at
                                        Councils are unaware of any problems                    policies and procedures for identifying,              32.604.
                                        with this coverage.                                     collecting, and deferring contract debts.
                                           22. Comment. One commenter asked                     Part 33 prescribes policies and                       PART 13—SIMPLIFIED ACQUISITION
                                        if the deferment agreement is a contract                procedures for processing contract                    PROCEDURES
                                        or whether the agreement should be                      disputes and appeals. Contracting                     ■ 3. Amend section 13.401 by revising
                                        incorporated into the contract to ensure                officer’s final decisions are key to both             paragraph (b) to read as follows:
                                        the agreement is legally binding.                       processes. Therefore, the Councils
                                           Response. There is no need to                        believe it is appropriate to include                  13.401    General.
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                                        incorporate the agreements into the                     coverage in both subparts.                            *      *    *     *     *
                                        affected contracts because the                             This is not a significant regulatory                  (b) The contracting officer shall be
                                        agreements themselves are legally                       action and, therefore, was not subject to             primarily responsible for determining
                                        binding contracts between the                           review under Section 6(b) of Executive                the amount of debts resulting from
                                        contractor and the Government.                          Order 12866, Regulatory Planning and                  failure of contractors to properly


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                                        replace, repair, or correct supplies lost,              Payments, or any contract clause for                    (3) Actual monetary loss to the
                                        damaged, or not conforming to purchase                  commercial item financing.                            Government.
                                        requirements (see 32.602 and 32.603).                      (4) Increases to financing payment                   (b) The amount of indebtedness
                                                                                                liquidation rates.                                    determined by the contracting officer
                                        PART 32—CONTRACT FINANCING                                 (5) Overpayments disclosed by                      shall be an amount that—
                                                                                                quarterly statements required under                     (1) Is based on the merits of the case;
                                        ■ 4. Revise section 32.008 to read as
                                                                                                price redetermination or incentive                    and
                                        follows:                                                                                                        (2) Is consistent with the contract
                                                                                                contracts.
                                        32.008   Notification of overpayment.                      (6) Price adjustments resulting from               terms.
                                          If the contractor notifies the                        Cost Accounting Standards (CAS)
                                                                                                                                                      32.604    Demand for payment.
                                        contracting officer of a duplicate                      noncompliances or changes in cost
                                                                                                accounting practice.                                     (a) Except as provided in paragraph
                                        payment or that the Government has                                                                            (c) of this section, the contracting officer
                                        otherwise overpaid, the contracting                        (7) Reinspection costs for
                                                                                                nonconforming supplies or services.                   shall take the following actions:
                                        officer shall follow the procedures at                                                                           (1) Issue the demand for payment as
                                        32.604.                                                    (8) Duplicate or erroneous payments.
                                                                                                   (9) Damages or excess costs related to             soon as the contracting officer has
                                        ■ 5. Revise Subpart 32.6 to read as
                                                                                                defaults in performance.                              determined that an actual debt is due
                                        follows:                                                                                                      the Government and the amount.
                                                                                                   (10) Breach of contract obligations
                                        Sec.                                                    concerning progress payments,                            (2) Issue the demand for payment
                                        32.600 Scope of subpart.                                performance-based payments, advance                   even if—
                                        32.601 General.                                         payments, commercial item financing,                     (i) The debt is or will be the subject
                                        32.602 Responsibilities.                                                                                      of a bilateral modification;
                                        32.603 Debt determination.
                                                                                                or Government-furnished property.
                                                                                                   (11) Government expense of                            (ii) The contractor is otherwise
                                        32.604 Demand for payment.                                                                                    obligated to pay the money under the
                                        32.605 Final decisions.                                 correcting defects.
                                                                                                   (12) Overpayments related to errors in             existing contract terms; or
                                        32.606 Debt collection.
                                        32.607 Installment payments and                         quantity or billing or deficiencies in                   (iii) The contractor has agreed to
                                             deferment of collection.                           quality.                                              repay the debt.
                                        32.607–1 Installment payments.                             (13) Delinquency in contractor                        (3) Issue the demand for payment as
                                        32.607–2 Deferment of collection.                       payments due under agreements or                      a part of the final decision, if a final
                                        32.608 Interest.                                        arrangements for deferral or                          decision is required by 32.605(a).
                                        32.608–1 Interest charges.                              postponement of collections.                             (b) The demand for payment shall
                                        32.608–2 Interest credits.                                 (14) Reimbursement of amounts due                  include the following:
                                        32.609 Delays in receipt of notices or
                                                                                                under 33.102(b)(3) and 33.104(h)(8).                     (1) A description of the debt,
                                             demands.                                                                                                 including the debt amount.
                                        32.610 Compromising debts.                              32.602    Responsibilities.                              (2) A distribution of the principal
                                        32.611 Contract clause.                                                                                       amount of the debt by line(s) of
                                                                                                  (a) The contracting officer has primary
                                                                                                responsibility for identifying and                    accounting subject to the following:
                                        Subpart 32.6—Contract Debts                                                                                      (i) If the debt affects multiple lines of
                                                                                                demanding payment of contract debts
                                        32.600   Scope of subpart.                              except those resulting from errors made               accounting, the contracting officer shall,
                                           This subpart prescribes policies and                 by the payment office. The contracting                to the maximum extent practicable,
                                        procedures for identifying, collecting,                 officer shall not collect contract debts or           identify all affected lines of accounting.
                                        and deferring collection of contract                    otherwise agree to liquidate contract                 If it is not practicable to identify all
                                        debts (including interest, if applicable).              debts (e.g., offset the amount of the debt            affected lines of accounting, the
                                        Sections 32.607, 32.608, and 32.610 of                  against existing unpaid bills due the                 contracting officer may select
                                        this subpart do not apply to claims                     contractor, or allow contractors to retain            representative lines of accounting in
                                        against common carriers for                             contract debts to cover amounts that                  accordance with paragraph (b)(2)(ii) of
                                        transportation overcharges and freight                  may become payable in future periods).                this section.
                                        and cargo losses (31 U.S.C. 3726).                        (b) The payment office has primary                     (ii) In selecting representative lines of
                                                                                                responsibility for—                                   accounting, the contracting officer
                                        32.601   General.                                         (1) Collecting contract debts identified            shall—
                                           (a) Contract debts are amounts that—                 by contracting officers;                                 (A) Consider the affected departments
                                           (1) Have been paid to a contractor to                  (2) Identifying and collecting                      or agencies, years of appropriations, and
                                        which the contractor is not currently                   duplicate and erroneous payments; and                 the predominant types of
                                        entitled under the terms and conditions                   (3) Authorizing the liquidation of                  appropriations; and
                                        of the contract; or                                     contract debts in accordance with                        (B) Not distribute to any line of
                                           (2) Are otherwise due from the                       agency procedures.                                    accounting an amount of the principal
                                        contractor under the terms and                                                                                in excess of the total obligation for the
                                        conditions of the contract.                             32.603    Debt determination.                         line of accounting; and
                                           (b) Contract debts include, but are not                (a) If the contracting officer has any                 (iii) Include the lines of accounting
                                        limited to, the following:                              indication that a contractor owes money               even if the associated funds are expired
                                           (1) Billing and price reductions                     to the Government under a contract, the               or cancelled. While cancelled funds will
                                        resulting from contract terms for price                 contracting officer shall determine                   be deposited in a miscellaneous receipt
                                        redetermination or for determination of                 promptly whether an actual debt is due                account of the Treasury if collected, the
                                        prices under incentive type contracts.                  and the amount. Any unnecessary delay                 funds are tracked under the closed year
                                           (2) Price or cost reductions for                     may contribute to—                                    appropriation(s) to comply with the
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                                        defective cost or pricing data.                           (1) Loss of timely availability of the              Anti-Deficiency Act.
                                           (3) Financing payments determined to                 funds to the program for which the                       (iv) If the debt affects multiple
                                        be in excess of the contract limitations                funds were initially provided;                        contracts and the lines of accounting are
                                        at 52.232–16(a)(7), Progress Payments,                    (2) Increased difficulty in collecting              not readily available, the contracting
                                        or 52.232–32(d)(2), Performance—Based                   the debt; or                                          officer shall—


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                                           (A) Issue the demand for payment                     accordance with the applicable statutory              previously demanded by the contracting
                                        without the distribution of the principal               and regulatory requirements, to offset                officer (see 32.607–2).
                                        amount to the affected lines of                         the debt against any payments otherwise                  (b) If a demand for payment was
                                        accounting;                                             due the contractor.                                   previously issued for the debt, the
                                           (B) Include a statement in the demand                   (7) Notification that the debt may be              demand for payment included in the
                                        for payment advising when the                           subject to administrative charges in                  final decision shall identify the same
                                        distribution will be provided; and                      accordance with the requirements of 31                due date as the original demand for
                                           (C) Provide the distribution by the                  U.S.C. 3717(e) and the Debt Collection                payment.
                                        date identified in the demand for                       Improvement Act of 1996.                                 (c) The contracting officer shall—
                                        payment.                                                   (8) Notification that the contractor                  (1) Furnish the decision to the
                                           (3) The basis for and amount of any                  may submit a request for installment                  contractor by certified mail, return
                                        accrued interest or penalty.                            payments or deferment of collection if                receipt requested, or by any other
                                           (4)(i) For debts resulting from specific             immediate payment is not practicable or               method that provides evidence of
                                        contract terms (e.g., debts resulting from              if the amount is disputed.                            receipt; and
                                        incentive clause provisions, Quarterly                     (c) Except as provided in paragraph                   (2) Forward a copy to the payment
                                        Limitation on Payments Statement, Cost                  (d) of this section, the contracting officer          office identified in the contract.
                                        Accounting Standards, price reduction                   should not issue a demand for payment
                                        for defective pricing), a notification                  if the contracting officer only becomes               32.606    Debt collection.
                                        stating that payment should be made                     aware of the debt when the contractor—                  (a) If the contractor has not liquidated
                                        promptly, and that interest is due in                      (1) Provides a lump sum payment or                 the debt within 30 days of the date due
                                        accordance with the terms of the                        submits a credit invoice. (A credit                   or requested installment payments or
                                        contract. Interest shall be computed                    invoice is a contractor’s request to                  deferment of collection, the payment
                                        from the date specified in the applicable               liquidate the debt against existing                   office shall initiate withholding of
                                        contract clause until repayment by the                  unpaid bills due the contractor); or                  principal, interest, penalties, and
                                        contractor. The interest rate shall be the                 (2) Notifies the contracting officer that          administrative charges. In the event the
                                        rate specified in the applicable contract               the payment office overpaid on an                     contract is assigned under the
                                        clause. In the case of a debt arising from              invoice payment. When the contractor                  Assignment of Claims Act of 1940 (31
                                        a price reduction for defective pricing,                provides the notification, the                        U.S.C. 3727 and 41 U.S.C. 15), the rights
                                        or as specifically set forth in a Cost                  contracting officer shall notify the                  of the assignee will be scrupulously
                                        Accounting Standards (CAS) clause in                    payment office of the overpayment.                    respected and withholding of payments
                                        the contract, interest is computed from                    (d) If a demand for payment was not                shall be consistent with those rights. For
                                        the date of overpayment by the                          issued as provided for in paragraph (c)               additional information on assignment of
                                        Government until repayment by the                       of this section, the contracting officer              claims, see Subpart 32.8.
                                        contractor at the underpayment rate                     shall issue a demand for payment no                     (b) As provided for in the Debt
                                        established by the Secretary of the                     sooner than 30 days after the contracting             Collection Improvement Act of 1996 (31
                                        Treasury, for the periods affected, under               officer becomes aware of the debt                     U.S.C. 3711(g)(1)), payment offices are
                                        26 U.S.C. 6621(a)(2).                                   unless—                                               required to transfer any debt that is
                                           (ii) For all other contract debts, a                    (1) The contractor has liquidated the              delinquent more than 180 days to the
                                        notification stating that any amounts not               debt;                                                 Department of Treasury for collection.
                                        paid within 30 days from the date of the                   (2) The contractor has requested an                  (c) The contracting officer shall
                                        demand for payment will bear interest.                  installment payment agreement; or                     periodically follow up with the payment
                                        Interest shall be computed from the date                   (3) The payment office has issued a                office to determine whether the debt has
                                        of the demand for payment until                         demand for payment.                                   been collected and credited to the
                                        repayment by the contractor. The                           (e) The contracting officer shall—                 correct appropriation(s).
                                        interest rate shall be the interest rate                   (1) Furnish a copy of the demand for
                                        established by the Secretary of the                     payment to the contractor by certified                32.607 Installment payments and
                                                                                                                                                      deferment of collection.
                                        Treasury, as provided in Section 611 of                 mail, return receipt requested, or by any
                                        the Contract Disputes Act of 1978                       other method that provides evidence of                  (a) The contracting officer shall not
                                        (Public Law 95–563), which is                           receipt; and                                          approve or deny a contractor’s request
                                        applicable to the period in which the                      (2) Forward a copy of the demand to                for installment payments or deferment
                                        amount becomes due, and then at the                     the payment office.                                   of collections. The office designated in
                                        rate applicable for each six-month                                                                            agency procedures is responsible for
                                        period as established by the Secretary                  32.605    Final decisions.                            approving or denying requests for
                                        until the amount is paid.                                  (a) The contracting officer shall issue            installment payments or deferment of
                                           (5) A statement advising the                         a final decision as required by 33.211                collections.
                                        contractor—                                             if—                                                     (b) If a contractor has not appealed the
                                           (i) To contact the contracting officer if               (1) The contracting officer and the                debt or filed an action under the
                                        the contractor believes the debt is                     contractor are unable to reach agreement              Disputes clause of the contract and the
                                        invalid or the amount is incorrect; and                 on the existence or amount of a debt in               contractor has submitted a proposal for
                                           (ii) If the contractor agrees, to remit a            a timely manner;                                      debt deferment or installment
                                        check payable to the agency’s payment                      (2) The contractor fails to liquidate a            payments—
                                        office annotated with the contract                      debt previously demanded by the                         (1) The office designated in agency
                                        number along with a copy of the                         contracting officer within the timeline               procedures may arrange for deferment/
                                        demand for payment to the payment                       specified in the demand for payment                   installment payments if the contractor is
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                                        office identified in the contract or as                 unless the amounts were not repaid                    unable to pay at once in full or the
                                        otherwise specified in the demand letter                because the contractor has requested an               contractor’s operations under national
                                        in accordance with agency procedures.                   installment payment agreement; or                     defense contracts would be seriously
                                           (6) Notification that the payment                       (3) The contractor requests a                      impaired. The arrangement shall
                                        office may initiate procedures, in                      deferment of collection on a debt                     include appropriate covenants and


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                                        securities and should be limited to the                 designated in agency procedures for a                   (h) If a contractor appeal of the debt
                                        shortest practicable maturity; and                      decision:                                             determination is pending, the deferment
                                          (2) The deferment/installment                            (i) A copy of the contractor’s request             agreement shall also include a
                                        agreement shall include a specific                      for a deferment of collection.                        requirement that the contractor shall—
                                        schedule or plan for payment. It should                    (ii) A written recommendation on the                 (1) Diligently prosecute the appeal;
                                        permit the Government to make                           request and the basis for the                         and
                                        periodic financial reviews of the                       recommendation including the                            (2) Pay the debt in full when the
                                        contractor and to require payments                      advisability of deferment to avoid                    appeal is decided, or when the parties
                                        earlier than required by the agreement if               possible overcollections.                             reach agreement on the debt amount.
                                        the Government considers the                               (iii) A statement as to whether the                  (i) The deferment agreement may
                                        contractor’s ability to pay improved. It                contractor has an appeal pending or                   provide for the right to make early
                                        should also provide for required stated                 action filed under the Disputes clause of             payments without prejudice, for refund
                                        or measurable payments on the                           the contract and the docket number if                 of overpayments, and for crediting of
                                        occurrence of specific events or                        the appeal has been filed.                            interest.
                                        contingencies that improve the                             (iv) A copy of the contracting officer’s
                                        contractor’s ability to pay.                            final decision (see 32.605).                          32.608    Interest.
                                          (c) If not already applicable under the                  (d) The office designated in agency
                                                                                                                                                      32.608–1    Interest charges.
                                        contract terms, interest on contract debt               procedures may authorize a deferment
                                                                                                pending the resolution of appeal to                     Unless specified otherwise in the
                                        shall be made an element of any
                                                                                                avoid possible overcollections. The                   clause at 52.232–17, Interest, interest
                                        agreement entered into for installment
                                                                                                agency is required to use unexpired                   charges shall apply to any contract debt
                                        payments or deferment of collection.
                                                                                                funds to pay interest on overcollections.             unpaid after 30 days from the issuance
                                        32.607–1    Installment payments.                          (e) Deferments pending disposition of              of a demand unless—
                                          If a contractor requests an installment               appeal may be granted to small business                 (a) The contract is a kind excluded
                                        payment agreement, the contracting                      concerns and financially weak                         under 32.611; or
                                        officer shall notify the contractor to                  contractors, balancing the need for                     (b) The contract or debt has been
                                        send a written request for installment                  Government security against loss and                  exempted from interest charges under
                                        payments to the office designated in                    undue hardship on the contractor.                     agency procedures.
                                        agency procedures.                                         (f) The deferment agreement shall not              32.608–2    Interest credits.
                                                                                                provide that a claim of the Government
                                        32.607–2    Deferment of collection.                    will not become due and payable                          (a) An equitable interest credit shall
                                          (a) All requests for deferment of                     pending mutual agreement on the                       be applied under the following
                                        collection must be submitted in writing                 amount of the claim or, in the case of                circumstances:
                                        to the contracting officer.                             a dispute, until the decision is reached.                (1) When the amount of debt initially
                                          (1) If the contractor has appealed the                   (g) At a minimum, the deferment                    determined is subsequently reduced;
                                        debt under the procedures of the                        agreement shall contain the following:                e.g., through a successful appeal.
                                        Disputes clause of the contract, the                       (1) A description of the debt.                        (2) When any amount collected by the
                                        information with the request for                           (2) The date of first demand for                   Government is in excess of the amount
                                        deferment may be limited to an                          payment.                                              found to be due on appeal under the
                                        explanation of the contractor’s financial                  (3) Notice of an interest charge, in               Disputes Clause of the contract.
                                        condition.                                              conformity with 32.608 and the FAR                       (3) When the collection procedures
                                          (2) Actions filed by contractors under                clause at 52.232–17, Interest; or, in the             followed in a given case result in an
                                        the Disputes Clause shall not suspend or                case of a debt arising from a defective               overcollection of the debt due.
                                        delay collection.                                       pricing or a CAS noncompliance                           (4) When the responsible official
                                          (3) If there is no appeal pending or                  overpayment, interest, as prescribed by               determines that the Government has
                                        action filed under the Disputes clause of               the applicable Price Reduction for                    unduly delayed payments to the
                                        the contract, the following information                 Defective Cost or Pricing Data or CAS                 contractor on the same contract at some
                                        about the contractor should be                          clause (see 32.607(c)).                               time during the period to which the
                                        submitted with the request:                                (4) Identification of the office to                interest charge applied, provided an
                                          (i) Financial condition.                              which the contractor is to send debt                  interest penalty was not paid for such
                                          (ii) Contract backlog.                                payments.                                             late payment.
                                          (iii) Projected cash receipts and                        (5) A requirement for the contractor to               (b) Any appropriate interest credits
                                        requirements.                                           submit financial information requested                shall be computed under the following
                                          (iv) The feasibility of immediate                     by the Government and for reasonable                  procedures:
                                        payment of the debt.                                    access to the contractor’s records and                   (1) Interest at the rate under 52.232–
                                          (v) The probable effect on operations                 property by Government                                17 shall be charged on the reduced debt
                                        of immediate payment in full.                           representatives.                                      from the date of collection by the
                                          (b) Upon receipt of the contractor’s                     (6) Provision for the Government to                Government until the date the monies
                                        written request, the contracting officer                terminate the deferment agreement and                 are remitted to the contractor.
                                        shall promptly provide a notification to                accelerate the maturity of the debt if the               (2) Interest may not be reduced for
                                        the payment office and advise the                       contractor defaults or if bankruptcy or               any time between the due date under
                                        payment office that the contractor’s                    insolvency proceedings are instituted by              the demand and the period covered by
                                        request is under consideration.                         or against the contractor.                            a deferment of collection, unless the
                                          (c)(1) The contracting officer should                    (7) Protective requirements that are               contract includes an interest clause; e.g.,
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                                        consider any information necessary to                   considered by the Government to be                    the clause prescribed in 32.611.
                                        develop a recommendation on the                         prudent and feasible in the specific                     (3) Interest shall not be credited in an
                                        deferment request.                                      circumstances. The coverage of                        amount that, when added to other
                                          (2) The contracting officer shall                     protective terms at 32.409 and 32.501–                amounts refunded or released to the
                                        forward the following to the office                     5 may be used as a guide.                             contractor, exceeds the total amount


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                                        that has been collected, or withheld for                and adding ‘‘32.604 and 32.605’’ in its                  (6) Interest. (i) All amounts that become
                                        the purpose of collecting the debt. This                place.                                                payable by the Contractor to the Government
                                        limitation shall be further reduced by                                                                        under this contract shall bear simple interest
                                                                                                PART 36—CONSTRUCTION AND                              from the date due until paid unless paid
                                        the amount of any limitation applicable                                                                       within 30 days of becoming due. The interest
                                        under paragraph (b)(2) of this                          ARCHITECT-ENGINEER CONTRACTS
                                                                                                                                                      rate shall be the interest rate established by
                                        subsection.                                             36.608    [Amended]                                   the Secretary of the Treasury as provided in
                                                                                                                                                      Section 611 of the Contract Disputes Act of
                                        32.609 Delays in receipt of notices or                  ■ 8. Amend section 36.608 in the fourth               1978 (Public Law 95–563), which is
                                        demands.                                                sentence by removing ‘‘collect’’ and                  applicable to the period in which the amount
                                           If interest is accrued based on the date             adding ‘‘issue a demand for payment of’’              becomes due, as provided in (i)(6)(v) of this
                                        of the demand letter and delivery of the                in its place.                                         clause, and then at the rate applicable for
                                        demand letter is delayed by the                                                                               each six-month period as fixed by the
                                        Government (e.g., undue delay after                     PART 42—CONTRACT                                      Secretary until the amount is paid.
                                        dating at the originating office or delays              ADMINISTRATION AND AUDIT                                 (ii) The Government may issue a demand
                                                                                                SERVICES                                              for payment to the Contractor upon finding
                                        in the mail), the date of the debt and                                                                        a debt is due under the contract.
                                        accrual of interest shall be extended to                ■ 9. Amend section 42.302 by revising                    (iii) Final decisions. The Contracting
                                        a time that is fair and reasonable under                paragraph (a)(17) to read as follows:                 Officer will issue a final decision as required
                                        the particular circumstances.                                                                                 by 33.211 if—
                                                                                                42.302    Contract administration functions.             (A) The Contracting Officer and the
                                        32.610   Compromising debts.                              (a) * * *                                           Contractor are unable to reach agreement on
                                          For debts under $100,000, excluding                     (17) Analyze quarterly limitation on                the existence or amount of a debt within 30
                                        interest, the designated agency official                payments statements and take action in                days;
                                        may compromise the debt pursuant to                     accordance with Subpart 32.6 to recover                  (B) The Contractor fails to liquidate a debt
                                        the Federal Claims Collection Standards                                                                       previously demanded by the Contracting
                                                                                                overpayments from the contractor.
                                                                                                                                                      Officer within the timeline specified in the
                                        (31 CFR part 902) and agency                            *     *     *   *    *                                demand for payment unless the amounts
                                        regulations. Unless specifically                                                                              were not repaid because the Contractor has
                                        authorized by agency procedures,                        PART 52—SOLICITATION PROVISIONS                       requested an installment payment agreement;
                                        contracting officers cannot compromise                  AND CONTRACT CLAUSES                                  or
                                        debts.                                                                                                           (C) The Contractor requests a deferment of
                                                                                                ■ 10. Amend section 52.212–4 by—                      collection on a debt previously demanded by
                                        32.611   Contract clause.                               ■ a. Revising the date of the clause;                 the Contracting Officer (see 32.607–2).
                                          (a) The contracting officer shall insert              ■ b. Revising paragraph (i)(5);                          (iv) If a demand for payment was
                                        the clause at 52.232—17, Interest, in                   ■ c. Adding paragraph (i)(6); and                     previously issued for the debt, the demand
                                        solicitations and contracts unless it is                ■ d. Amending Alternate I as follows:                 for payment included in the final decision
                                        contemplated that the contract will be                  ■ 1. Revising the date of Alternate I;                shall identify the same due date as the
                                                                                                ■ 2. Revising paragraph (i)(5); and                   original demand for payment.
                                        in one or more of the following                         ■ 3. Redesignating paragraphs (i)(6)                     (v) Amounts shall be due at the earliest of
                                        categories:                                             through (i)(9) as (i)(7) through (i)(10),             the following dates:
                                          (1) Contracts at or below the                                                                                  (A) The date fixed under this contract.
                                                                                                respectively, and adding a new
                                        simplified acquisition threshold.                                                                                (B) The date of the first written demand for
                                                                                                paragraph (i)(6).
                                          (2) Contracts with Government                                                                               payment, including any demand for payment
                                                                                                  The revised and added text reads as                 resulting from a default termination.
                                        agencies.
                                                                                                follows:                                                 (vi) The interest charge shall be computed
                                          (3) Contracts with a State or local
                                        government or instrumentality.                          52.212–4 Contract Terms and                           for the actual number of calendar days
                                          (4) Contracts with a foreign                          Conditions—Commercial Items.                          involved beginning on the due date and
                                                                                                                                                      ending on—
                                        government or instrumentality.                          *   *    *  *   *                                        (A) The date on which the designated
                                          (5) Contracts without any provision                     CONTRACT TERMS AND                                  office receives payment from the Contractor;
                                        for profit or fee with a nonprofit                      CONDITIONS—COMMERCIAL ITEMS                              (B) The date of issuance of a Government
                                        organization.                                           (OCT 2008)                                            check to the Contractor from which an
                                          (6) Contracts described in Subpart 5.5,                                                                     amount otherwise payable has been withheld
                                                                                                *   *    *  *   *
                                        Paid Advertisements.                                       (i) * * *
                                                                                                                                                      as a credit against the contract debt; or
                                          (7) Any other exceptions authorized                                                                            (C) The date on which an amount withheld
                                                                                                   (5) Overpayments. If the Contractor
                                        under agency procedures.                                                                                      and applied to the contract debt would
                                                                                                becomes aware of a duplicate contract
                                          (b) The contracting officer may insert                                                                      otherwise have become payable to the
                                                                                                financing or invoice payment or that the
                                                                                                                                                      Contractor.
                                        the FAR clause at 52.232–17, Interest, in               Government has otherwise overpaid on a
                                                                                                                                                         (vii) The interest charge made under this
                                        solicitations and contracts when it is                  contract financing or invoice payment, the
                                                                                                                                                      clause may be reduced under the procedures
                                        contemplated that the contract will be                  Contractor shall—
                                                                                                                                                      prescribed in 32.608–2 of the Federal
                                        in any of the categories specified in                      (i) Remit the overpayment amount to the
                                                                                                                                                      Acquisition Regulation in effect on the date
                                        32.611(a).                                              payment office cited in the contract along            of this contract.
                                                                                                with a description of the overpayment
                                                                                                including the—                                        *        *    *     *     *
                                        PART 33—PROTESTS, DISPUTES,                                                                                       Alternate I (OCT 2008). * * *
                                                                                                   (A) Circumstances of the overpayment
                                        AND APPEALS                                             (e.g., duplicate payment, erroneous payment,          *        *    *     *     *
                                        33.208   [Amended]                                      liquidation errors, date(s) of overpayment);            (i) * * *
                                                                                                   (B) Affected contract number and delivery            (5) Overpayments/Underpayments. Each
                                        ■  6. Amend section 33.208 by removing                  order number, if applicable;                          payment previously made shall be subject to
                                        from paragraph (b) ‘‘32.614’’ and adding
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                                                                                                   (C) Affected contract line item or subline         reduction to the extent of amounts, on
                                        ‘‘the clause at 52.232–17’’ in its place.               item, if applicable; and                              preceding invoices, that are found by the
                                                                                                   (D) Contractor point of contact.                   Contracting Officer not to have been properly
                                        33.211   [Amended]                                         (ii) Provide a copy of the remittance and          payable and shall also be subject to reduction
                                        ■ 7. Amend section 33.211 by removing                   supporting documentation to the Contracting           for overpayments or to increase for
                                        from paragraph (a)(4)(vi) ‘‘32.610(b’’)                 Officer.                                              underpayments. The Contractor shall



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                                        promptly pay any such reduction within 30               amount otherwise payable has been withheld               (c) Final Decisions. The Contracting Officer
                                        days unless the parties agree otherwise. The            as a credit against the contract debt; or             will issue a final decision as required by
                                        Government within 30 days will pay any                     (C) The date on which an amount withheld           33.211 if—
                                        such increases, unless the parties agree                and applied to the contract debt would                   (1) The Contracting Officer and the
                                        otherwise. The Contractor’s payment will be             otherwise have become payable to the                  Contractor are unable to reach agreement on
                                        made by check. If the Contractor becomes                Contractor.                                           the existence or amount of a debt in a timely
                                        aware of a duplicate invoice payment or that               (vii) The interest charge made under this          manner;
                                        the Government has otherwise overpaid on                clause may be reduced under the procedures               (2) The Contractor fails to liquidate a debt
                                        an invoice payment, the Contractor shall—               prescribed in 32.608–2 of the Federal                 previously demanded by the Contracting
                                           (i) Remit the overpayment amount to the              Acquisition Regulation in effect on the date          Officer within the timeline specified in the
                                        payment office cited in the contract along              of this contract.                                     demand for payment unless the amounts
                                        with a description of the overpayment                      (viii) Upon receipt and approval of the            were not repaid because the Contractor has
                                        including the—                                          invoice designated by the Contractor as the           requested an installment payment agreement;
                                           (A) Circumstances of the overpayment                 ‘‘completion invoice’’ and supporting                 or
                                        (e.g., duplicate payment, erroneous payment,            documentation, and upon compliance by the                (3) The Contractor requests a deferment of
                                        liquidation errors, date(s) of overpayment);            Contractor with all terms of this contract, any       collection on a debt previously demanded by
                                           (B) Affected contract number and delivery            outstanding balances will be paid within 30           the Contracting Officer (see 32.607–2).
                                        order number, if applicable;                            days unless the parties agree otherwise. The             (d) If a demand for payment was
                                           (C) Affected contract line item or subline           completion invoice, and supporting                    previously issued for the debt, the demand
                                        item, if applicable; and                                documentation, shall be submitted by the              for payment included in the final decision
                                           (D) Contractor point of contact.                     Contractor as promptly as practicable                 shall identify the same due date as the
                                           (ii) Provide a copy of the remittance and            following completion of the work under this           original demand for payment.
                                        supporting documentation to the Contracting             contract, but in no event later than 1 year (or          (e) Amounts shall be due at the earliest of
                                        Officer.                                                such longer period as the Contracting Officer         the following dates:
                                           (6)(i) All amounts that become payable by            may approve in writing) from the date of                 (1) The date fixed under this contract.
                                        the Contractor to the Government under this             completion.                                              (2) The date of the first written demand for
                                        contract shall bear simple interest from the                                                                  payment, including any demand for payment
                                        date due until paid unless paid within 30               *     *    *     *      *
                                                                                                ■ 11. Amend section 52.213–4 by                       resulting from a default termination.
                                        days of becoming due. The interest rate shall                                                                    (f) The interest charge shall be computed
                                        be the interest rate established by the                 revising the date of the clause and
                                                                                                                                                      for the actual number of calendar days
                                        Secretary of the Treasury, as provided in               paragraph (a)(2)(iv) to read as follows:              involved beginning on the due date and
                                        section 611 of the Contract Disputes Act of                                                                   ending on—
                                        1978 (Public Law 95–563), which is                      52.213–4 Terms and Conditions—
                                                                                                Simplified Acquisitions (Other Than                      (1) The date on which the designated office
                                        applicable to the period in which the amount                                                                  receives payment from the Contractor;
                                        becomes due, and then at the rate applicable            Commercial Items).
                                                                                                                                                         (2) The date of issuance of a Government
                                        for each six month period as established by             *    *   *   *    *                                   check to the Contractor from which an
                                        the Secretary until the amount is paid.                   TERMS AND CONDITIONS—                               amount otherwise payable has been withheld
                                           (ii) The Government may issue a demand               SIMPLIFIED ACQUISITIONS (OTHER                        as a credit against the contract debt; or
                                        for payment to the Contractor upon finding
                                                                                                THAN COMMERCIAL ITEMS) (OCT                              (3) The date on which an amount withheld
                                        a debt is due under the contract.                                                                             and applied to the contract debt would
                                           (iii) Final Decisions. The Contracting               2008)
                                                                                                                                                      otherwise have become payable to the
                                        Officer will issue a final decision as required         *    *   *   *    *                                   Contractor.
                                        by 33.211 if—                                             (a) * * *
                                                                                                                                                         (g) The interest charge made under this
                                           (A) The Contracting Officer and the                    (2) * * *
                                                                                                                                                      clause may be reduced under the procedures
                                        Contractor are unable to reach agreement on               (iv) 52.232–25, Prompt Payment (OCT
                                                                                                                                                      prescribed in 32.608–2 of the Federal
                                        the existence or amount of a debt in a timely           2008).
                                                                                                                                                      Acquisition Regulation in effect on the date
                                        manner;                                                 *     *     *    *     *                              of this contract.
                                           (B) The Contractor fails to liquidate a debt         ■ 12. Revise section 52.232–17 to read                   (End of clause)
                                        previously demanded by the Contracting
                                        Officer within the timeline specified in the
                                                                                                as follows:                                           ■ 13. Amend section 52.232–25 by
                                        demand for payment unless the amounts                   52.232–17     Interest.                               revising the date of the clause and
                                        were not repaid because the Contractor has                                                                    paragraph (d) to read as follows:
                                        requested an installment payment agreement;               As prescribed in 32.611(a) and (b),
                                        or                                                      insert the following clause:                          52.232–25    Prompt Payment.
                                           (C) The Contractor requests a deferment of             INTEREST (OCT 2008)                                 *   *   *   *  *
                                        collection on a debt previously demanded by               (a) Except as otherwise provided in this
                                        the Contracting Officer (see FAR 32.607–2).             contract under a Price Reduction for                    PROMPT PAYMENT (OCT 2008)
                                           (iv) If a demand for payment was                     Defective Cost or Pricing Data clause or a            *   *   *   *  *
                                        previously issued for the debt, the demand              Cost Accounting Standards clause, all                    (d) Overpayments. If the Contractor
                                        for payment included in the final decision              amounts that become payable by the                    becomes aware of a duplicate contract
                                        shall identify the same due date as the                 Contractor to the Government under this               financing or invoice payment or that the
                                        original demand for payment.                            contract shall bear simple interest from the          Government has otherwise overpaid on a
                                           (v) Amounts shall be due at the earliest of          date due until paid unless paid within 30             contract financing or invoice payment, the
                                        the following dates:                                    days of becoming due. The interest rate shall         Contractor shall—
                                           (A) The date fixed under this contract.              be the interest rate established by the                  (1) Remit the overpayment amount to the
                                           (B) The date of the first written demand for         Secretary of the Treasury as provided in              payment office cited in the contract along
                                        payment, including any demand for payment               Section 611 of the Contract Disputes Act of           with a description of the overpayment
                                        resulting from a default termination.                   1978 (Public Law 95–563), which is                    including the—
                                           (vi) The interest charge shall be computed           applicable to the period in which the amount             (i) Circumstances of the overpayment (e.g.,
                                        for the actual number of calendar days                  becomes due, as provided in paragraph (e) of          duplicate payment, erroneous payment,
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                                        involved beginning on the due date and                  this clause, and then at the rate applicable for      liquidation errors, date(s) of overpayment);
                                        ending on—                                              each six-month period as fixed by the                    (ii) Affected contract number and delivery
                                           (A) The date on which the designated                 Secretary until the amount is paid.                   order number if applicable;
                                        office receives payment from the Contractor;              (b) The Government may issue a demand                  (iii) Affected contract line item or subline
                                           (B) The date of issuance of a Government             for payment to the Contractor upon finding            item, if applicable; and
                                        check to the Contractor from which an                   a debt is due under the contract.                        (iv) Contractor point of contact.



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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                                54007

                                          (2) Provide a copy of the remittance and              DEPARTMENT OF DEFENSE                                 which has an effective date of October
                                        supporting documentation to the Contracting                                                                   1, 1995, reflects the addition of Section
                                        Officer.                                                GENERAL SERVICES                                      806(a)(3) of Pub L. 102–190, as amended
                                          (End of clause)                                       ADMINISTRATION                                        by Sections 2091 and 8105 of Pub. L.
                                        *     *    *     *     *                                                                                      103–355, at FAR 12.503(a) and
                                        ■ 14. Amend section 52.232–26 by                        NATIONAL AERONAUTICS AND                              12.504(a). When the implementation of
                                        revising the date of the clause and                     SPACE ADMINISTRATION                                  FAR 28.106–4 occurred, the appropriate
                                        paragraph (c) to read as follows:                                                                             incorporation of the FAR clause at
                                                                                                48 CFR Part 12                                        52.228–12, Prospective Subcontractor
                                        52.232–26 Prompt Payment for Fixed-Price
                                        Architect-Engineer Contracts.                           [FAC 2005–27; FAR Case 2007–022; Item                 Requests for Bonds, was accomplished,
                                        *   *    *   *   *                                      VII; Docket 2008–0001; Sequence 13]                   but not the incorporation of the
                                          PROMPT PAYMENT FOR FIXED-                                                                                   associated statutory citation in FAR
                                                                                                RIN 9000–AL03
                                        PRICE ARCHITECT-ENGINEER                                                                                      12.503 and 12.504.
                                        CONTRACTS (OCT 2008)                                    Federal Acquisition Regulation; FAR                      This is not a significant regulatory
                                        *   *    *   *   *                                      Case 2007–022, Subcontractor                          action and, therefore, was not subject to
                                           (c) Overpayments. If the Contractor                  Requests for Bonds                                    review under Section 6(b) of Executive
                                        becomes aware of a duplicate contract                                                                         Order 12866, Regulatory Planning and
                                        financing or invoice payment or that the                AGENCIES: Department of Defense (DoD),
                                                                                                                                                      Review, dated September 30, 1993. This
                                        Government has otherwise overpaid on a                  General Services Administration (GSA),
                                                                                                                                                      rule is not a major rule under 5 U.S.C.
                                        contract financing or invoice payment, the              and National Aeronautics and Space
                                                                                                                                                      804.
                                        Contractor shall—                                       Administration (NASA).
                                           (1) Remit the overpayment amount to the              ACTION: Final rule.                                   B. Regulatory Flexibility Act
                                        payment office cited in the contract along
                                        with a description of the overpayment                   SUMMARY:   The Civilian Agency                           The Regulatory Flexibility Act does
                                        including the—                                          Acquisition Council and the Defense                   not apply to this rule. This final rule
                                           (i) Circumstances of the overpayment (e.g.,          Acquisition Regulations Council                       does not constitute a significant FAR
                                        duplicate payment, erroneous payment,                   (Councils) have agreed on a final rule                revision within the meaning of FAR
                                        liquidation errors, date(s) of overpayment);
                                           (ii) Affected contract number and delivery
                                                                                                amending the Federal Acquisition                      1.501 and Pub. L. 98–577, and
                                        order number if applicable;                             Regulation (FAR) to clarify that the                  publication for public comments is not
                                           (iii) Affected contract line item or subline         clause ‘‘Prospective Subcontractor                    required. However, the Councils will
                                        item, if applicable; and                                Requests for Bonds’’ does not apply to                consider comments from small entities
                                           (iv) Contractor point of contact.                    commercial items.                                     concerning the affected FAR Part 12 in
                                           (2) Provide a copy of the remittance and             DATES: Effective Date: September 17,                  accordance with 5 U.S.C. 610. Interested
                                        supporting documentation to the Contracting             2008.                                                 parties must submit such comments
                                        Officer.                                                                                                      separately and should cite 5 U.S.C. 601,
                                           (End of clause)                                      FOR FURTHER INFORMATION CONTACT: Mr.
                                                                                                                                                      et seq. (FAC 2005–27, FAR case 2007–
                                        ■ 15. Amend section 52.232–27 by                        Michael Jackson, Procurement Analyst,
                                                                                                                                                      022), in correspondence.
                                        revising the date of the clause and                     at (202) 208–4949 for clarification of
                                        paragraph (l) to read as follows:                       content. For information pertaining to                C. Paperwork Reduction Act
                                                                                                status or publication schedules, contact
                                        52.232–27 Prompt Payment for                            the FAR Secretariat at (202) 501–4755.                  The Paperwork Reduction Act does
                                        Construction Contracts.                                 Please cite FAC 2005–27, FAR case                     not apply because the changes to the
                                        *    *  *   *  *                                        2007–022.                                             FAR do not impose information
                                          PROMPT PAYMENT FOR                                    SUPPLEMENTARY INFORMATION:                            collection requirements that require the
                                        CONSTRUCTION CONTRACTS (OCT                                                                                   approval of the Office of Management
                                        2008)                                                   A. Background                                         and Budget under 44 U.S.C. 3501, et
                                        *    *  *   *  *                                          The FAR clause at FAR 52.228–12,                    seq.
                                           (l) Overpayments. If the Contractor                  Prospective Subcontractor Requests for
                                        becomes aware of a duplicate contract                                                                         List of Subjects in 48 CFR Part 12
                                                                                                Bonds, implemented Section 806(a)(3)
                                        financing or invoice payment or that the                of Public Law 102–190, as amended,
                                        Government has otherwise overpaid on a
                                                                                                                                                          Government procurement.
                                                                                                which specifies that, upon the request of
                                        contract financing or invoice payment, the                                                                      Dated: September 9, 2008.
                                        Contractor shall—
                                                                                                a prospective subcontractor or supplier
                                                                                                offering to furnish labor or material for             Al Matera,
                                           (1) Remit the overpayment amount to the
                                        payment office cited in the contract along              the performance of a construction                     Director, Office of Acquisition Policy.
                                        with a description of the overpayment                   contract for which a payment bond has
                                                                                                                                                      ■ Therefore, DoD, GSA, and NASA
                                        including the—                                          been furnished to the United States
                                           (i) Circumstances of the overpayment (e.g.,                                                                amend 48 CFR part 12 as set forth
                                                                                                pursuant to the Miller Act, the
                                        duplicate payment, erroneous payment,                                                                         below:
                                                                                                contractor shall promptly provide a
                                        liquidation errors, date(s) of overpayment);            copy of such payment bond to the
                                           (ii) Affected contract number and delivery                                                                 PART 12—ACQUISITION OF
                                                                                                requestor. In conjunction with                        COMMERCIAL ITEMS
                                        order number if applicable;
                                           (iii) Affected contract line item or subline
                                                                                                performance bonds, payment bonds are
                                        item, if applicable; and                                used in Government construction                       ■ 1. The authority citation for 48 CFR
                                           (iv) Contractor point of contact.                    contracts to secure fulfillment of the                part 12 continues to read as follows:
                                           (2) Provide a copy of the remittance and             contractor’s obligations under the
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                                        supporting documentation to the Contracting             contract and to assure that the                         Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                        Officer.                                                contractor makes all payments, as                     chapter 137; and 42 U.S.C. 2473(c).
                                           (End of clause)                                      required by law, to persons furnishing                ■ 2. Amend section 12.503 by revising
                                        [FR Doc. E8–21382 Filed 9–16–08; 8:45 am]               labor or material in performance of the               the section heading and adding
                                        BILLING CODE 6820–EP–S                                  contract. The FAR clause at 52.228–12,                paragraph (a)(7) to read as follows:


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                                        54008        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        12.503 Applicability of certain laws to                 the FAR Secretariat at (202) 501–4755.                  Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                        Executive agency contracts for the                      Please cite FAC 2005–27, FAR case                     chapter 137; and 42 U.S.C. 2473(c).
                                        acquisition of commercial items.                        2008–002.                                             13.500    [Amended]
                                          (a) * * *                                             SUPPLEMENTARY INFORMATION:
                                          (7) Section 806(a)(3) of Pub. L. 102–                                                                       ■ 2. Amend section 13.500 by removing
                                        190, as amended by Sections 2091 and                    A. Background                                         from paragraph (d) ‘‘January 1, 2008’’
                                        8105 of Pub. L. 103–355, Payment                                                                              and adding ‘‘January 1, 2010’’ in its
                                                                                                   This final rule amends the FAR to                  place.
                                        Protections for Subcontractors and                      implement Section 822 of the National
                                        Suppliers (see 28.106–6).                                                                                     [FR Doc. E8–21380 Filed 9–16–08; 8:45 am]
                                                                                                Defense Authorization Act for Fiscal
                                                                                                                                                      BILLING CODE 6820–EP–S
                                        *     *     *    *     *                                Year 2008 (Pub. L. 110–181). Section
                                        ■ 3. Amend section 12.504 by adding                     822 amends Section 4202(e) of the
                                        paragraph (a)(13) to read as follows:                   Clinger-Cohen Act of 1996 (division D                 DEPARTMENT OF DEFENSE
                                                                                                of Pub. L. 104–106; 110 Stat. 652; 10
                                        12.504 Applicability of certain laws to
                                        subcontracts for the acquisition of                     U.S.C. 2304 note) by extending until                  GENERAL SERVICES
                                        commercial items.                                       January 1, 2010, the timeframe in which               ADMINISTRATION
                                          (a) * * *                                             an agency may use simplified
                                          (13) Section 806(a)(3) of Pub. L. 102–                procedures to purchase commercial                     NATIONAL AERONAUTICS AND
                                        190, as amended by Sections 2091 and                    items in amounts greater than the                     SPACE ADMINISTRATION
                                        8105 of Pub. L. 103–355, Payment                        simplified acquisition threshold, but not
                                        Protections for Subcontractors and                      exceeding $5,500,000 ($11 million for                 48 CFR Part 16
                                        Suppliers (see 28.106–6).                               acquisitions as described in 13.500(e)).
                                                                                                   This is not a significant regulatory               [FAC 2005–27; FAR Case 2008–006; Item
                                        *     *     *    *    *                                 action and, therefore, was not subject to
                                                                                                                                                      IX; Docket 2008–01, Sequence 5]
                                        [FR Doc. E8–21381 Filed 9–16–08; 8:45 am]               review under Section 6(b) of Executive                RIN 9000–AL05
                                        BILLING CODE 6820–EP–S                                  Order 12866, Regulatory Planning and
                                                                                                Review, dated September 30, 1993. This                Federal Acquisition Regulation; FAR
                                                                                                rule is not a major rule under 5 U.S.C.               Case 2008–006, Enhanced Competition
                                        DEPARTMENT OF DEFENSE                                   804.                                                  for Task and Delivery Order
                                                                                                                                                      Contracts—Section 843 of the Fiscal
                                        GENERAL SERVICES                                        B. Regulatory Flexibility Act                         Year 2008 National Defense
                                        ADMINISTRATION                                                                                                Authorization Act
                                                                                                   The Regulatory Flexibility Act does
                                                                                                not apply to this rule. This final rule               AGENCIES:  Department of Defense (DoD),
                                        NATIONAL AERONAUTICS AND
                                                                                                does not constitute a significant FAR                 General Services Administration (GSA),
                                        SPACE ADMINISTRATION
                                                                                                revision within the meaning of FAR                    and National Aeronautics and Space
                                                                                                1.501 and Pub. L. 98–577, and                         Administration (NASA).
                                        48 CFR Part 13
                                                                                                publication for public comments is not
                                                                                                                                                      ACTION: Interim rule with request for
                                        [FAC 2005–27; FAR Case 2008–002; Item                   required. However, the Councils will
                                        VIII; Docket 2008–0001; Sequence 11]                                                                          comments.
                                                                                                consider comments from small entities
                                        RIN 9000–AL02                                           concerning the affected FAR Part 13 in                SUMMARY:   The Civilian Agency
                                                                                                accordance with 5 U.S.C. 610. Interested              Acquisition Council and the Defense
                                        Federal Acquisition Regulation; FAR                     parties must submit such comments                     Acquisition Regulations Council
                                        Case 2008–002, Extension of Authority                   separately and should cite 5 U.S.C. 601,              (Councils) have agreed on an interim
                                        for Use of Simplified Acquisition                       et seq. (FAC 2005–27, FAR case 2008–                  rule amending the Federal Acquisition
                                        Procedures for Certain Commercial                       002), in all correspondence.                          Regulation (FAR) to implement the
                                        Items                                                   C. Paperwork Reduction Act                            Fiscal Year 2008 National Defense
                                                                                                                                                      Authorization Act, Section 843
                                        AGENCIES: Department of Defense (DoD),                    The Paperwork Reduction Act does                    ‘‘Enhanced Competition for Task and
                                        General Services Administration (GSA),                  not apply because the changes to the                  Delivery Order Contracts’’ (FY08
                                        and National Aeronautics and Space                      FAR do not impose information                         NDAA). Section 843 of the FY08 NDAA
                                        Administration (NASA).                                  collection requirements that require the              stipulates several requirements
                                        ACTION: Final rule.                                     approval of the Office of Management                  regarding enhancing competition within
                                                                                                and Budget under 44 U.S.C. 3501, et                   Federal contracting.
                                        SUMMARY:   The Civilian Agency                          seq.
                                        Acquisition Council and the Defense                                                                           DATES: Effective Date: September 17,
                                        Acquisition Regulations Council                         List of Subjects in 48 CFR Part 13                    2008.
                                        (Councils) have agreed on a final rule                                                                           Applicability date: FAR 16.503 and
                                                                                                    Government procurement.                           16.504, as amended by this rule, are
                                        amending the Federal Acquisition
                                        Regulation (FAR) to implement Section                     Dated: September 9, 2008.                           applicable to single award task or
                                        822 of the National Defense                             Al Matera,                                            delivery order contracts awarded on or
                                        Authorization Act for Fiscal Year 2008                  Director, Office of Acquisition Policy.               after May 27, 2008. FAR 16.505, as
                                        (Pub. L. 110–181).                                                                                            amended by this rule, is applicable to
                                                                                                ■ Therefore, DoD, GSA, and NASA
                                                                                                                                                      orders awarded on or after May 27, 2008
                                        DATES: Effective Date: September 17,                    amend 48 CFR part 13 as set forth
                                                                                                                                                      on existing contracts as well as new
                                        2008.                                                   below:
                                                                                                                                                      contracts.
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                                        FOR FURTHER INFORMATION CONTACT      Mr.                PART 13—SIMPLIFIED ACQUISITION                           Comment Date: Interested parties
                                        Michael Jackson, Procurement Analyst,                   PROCEDURES                                            should submit written comments to the
                                        at (202) 208–4949 for clarification of                                                                        FAR Secretariat on or before November
                                        content. For information pertaining to                  ■ 1. The authority citation for 48 CFR                17, 2008 to be considered in the
                                        status or publication schedules, contact                part 13 continues to read as follows:                 formulation of a final rule.


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                       54009

                                        ADDRESSES:    Submit comments                           through fair opportunity, transparency                improve the transparency and
                                        identified by FAC 2005–27, FAR case                     and accountability in contracting.                    accountability of agency award
                                        2008–006, by any of the following                          1. Limitation on single award task or              decisions. The new requirements apply
                                        methods:                                                delivery order contracts greater than                 to orders on existing contracts, as well
                                           • Regulations.gov: http://                           $100 million. Section 843 states that no              as on new contracts.
                                        www.regulations.gov.                                    task or delivery order contract in an                    3. Protest of orders greater than $10
                                           Submit comments via the Federal                      amount estimated to exceed $100                       million. This Section 843 requirement
                                        eRulemaking portal by inputting ‘‘FAR                   million (including all options) may be                provides a mechanism to protest task or
                                        Case 2008–006’’ under the heading                       awarded to a single source unless the                 delivery orders valued in excess of $10
                                        ‘‘Comment or Submission’’. Select the                   head of the agency determines in                      million (including options) under
                                        link ‘‘Send a Comment or Submission’’                   writing that—                                         multiple award contracts and states that
                                        that corresponds with FAR Case 2008–                       a. The task or delivery orders                     the Comptroller General shall have
                                        006. Follow the instructions provided to                expected under the contract are so                    exclusive jurisdiction over such
                                        complete the ‘‘Public Comment and                       integrally related that only a single                 protests. In particular, protests are
                                        Submission Form’’. Please include your                  source can reasonably perform the work;               authorized on the grounds that—
                                        name, company name (if any), and                           b. The contract provides only for firm-
                                                                                                                                                         (a) The order increases the scope,
                                        ‘‘FAR Case 2008–006’’ on your attached                  fixed price task or delivery orders;
                                                                                                   c. Only one source is qualified and                period, or maximum value of the
                                        document.                                                                                                     contract under which the order is
                                           • Fax: 202–501–4067.                                 capable of performing the work at a
                                                                                                reasonable price to the Government; or                issued; or
                                           • Mail: General Services                                                                                      (b) As a matter of right for orders
                                                                                                   d. It is necessary in the public interest
                                        Administration, Regulatory Secretariat                                                                        valued in excess of $10 million. This
                                                                                                to award the contract to a single source
                                        (VPR), 1800 F Street, NW, Room 4041,                                                                          provision provides for greater
                                                                                                due to exceptional circumstances.
                                        ATTN: Laurieann Duarte, Washington,                        The agency head must also notify                   accountability, oversight and discipline
                                        DC 20405.                                               Congress within 30 days after making                  within the Federal acquisition
                                           Instructions: Please submit comments                 the determination in the public interest.             framework, when coupled with the
                                        only and cite FAC 2005–27, FAR case                     The objective of this provision is to                 requirement of post award debriefings.
                                        2008–006, in all correspondence related                 place greater emphasis on awarding                    The existing requirement to protest
                                        to this case. All comments received will                multiple award contracts and enhancing                orders under section 16.505(a)(9) and
                                        be posted without change to http://                     the fair opportunity provisions within                the newly added requirement for orders
                                        www.regulations.gov, including any                      FAR Subpart 16.5. Competition of                      greater than $10 million expire May 27,
                                        personal and/or business confidential                   orders leads to improved contractor                   2011, unless extended by a new statute.
                                        information provided.                                   performance, stimulation of                           The protest authority applies to orders
                                        FOR FURTHER INFORMATION CONTACT: Mr.                    technological solutions, and reduction                on existing contracts, as well as on new
                                        William Clark, Procurement Analyst, at                  of costs over time. The tenets of this                contracts.
                                        (202) 219–1813 for clarification of                     provision strike at the core of enhancing                This is not a significant regulatory
                                        content. Please cite FAC 2005–27, FAR                   competition and ensuring competition                  action and, therefore, was not subject to
                                        case 2008–006. For information                          continues to exist even after award of                review under Section 6(b) of Executive
                                        pertaining to status or publication                     the initial contract vehicles.                        Order 12866, Regulatory Planning and
                                        schedules, contact the FAR Secretariat                  Notwithstanding the limitation on                     Review, dated September 30, 1993. This
                                        at (202) 501–4755.                                      single awards, there are occasions when               rule is not a major rule under 5 U.S.C.
                                        SUPPLEMENTARY INFORMATION:                              a single award is necessary. For these                804.
                                                                                                occasions, Section 843 authorizes
                                        A. Background                                                                                                 B. Regulatory Flexibility Act
                                                                                                exceptions for awarding single award
                                          The Fiscal Year 2008 National                         task or delivery order contracts that                    The interim rule is not expected to
                                        Defense Authorization Act (Pub. L. 110–                 exceed $100 million.                                  have a significant economic impact on
                                        181), Section 843 ‘‘Enhanced                               2. Enhanced competition for orders in              a substantial number of small entities
                                        Competition for Task and Delivery                       excess of $5 million. This Section 843                within the meaning of the Regulatory
                                        Order Contracts’’ includes several                      requirement emphasizes the importance                 Flexibility Act, 5 U.S.C. 601, et seq.,
                                        requirements regarding enhancing                        of following certain specified                        because this rule does not revise or
                                        competition within the Federal                          procedures in the competitive                         change existing regulations pertaining to
                                        contracting framework. The provisions                   placement of task or delivery orders                  small business concerns seeking
                                        of Section 843 include: (1) Limitation on               with an expected value in excess of $5                Government contracts. Therefore, an
                                        single award task and delivery order                    million (including options) placed                    Initial Regulatory Flexibility Analysis
                                        contracts greater than $100 million; (2)                against multiple award contracts. All                 has not been performed. The Councils
                                        Enhanced competition for task and                       awardees are to be given a fair                       will consider comments from small
                                        delivery orders in excess of $5 million;                opportunity to be considered for each                 entities concerning the affected FAR
                                        and (3) Protest on orders on the grounds                order, at a minimum, a notice of the                  Part 16 in accordance with 5 U.S.C. 610.
                                        that the order increases the scope,                     order with a clear statement of                       Interested parties must submit such
                                        period, maximum value of the contract                   requirements, a reasonable response                   comments separately and should cite 5
                                        under which the order is issued; or                     period, disclosure of the significant                 U.S.C 601, et seq. (FAC 2005–27, FAR
                                        valued in excess of $10 million.                        evaluation factors and subfactors, and                case 2008–006), in correspondence.
                                          The FAR changes are applicable to                     where award is made on a best value
                                                                                                                                                      C. Paperwork Reduction Act
                                        Indefinite-Delivery Requirements, and                   basis, a statement documenting the basis
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                                        Indefinite-Quantity, type contracts                     for award and the relative importance of                The Paperwork Reduction Act does
                                        where issuance of a task or delivery                    quality and price or cost factors. Section            not apply because the changes to the
                                        order is placed pursuant to FAR Subpart                 843 also provides an opportunity for a                FAR do not impose information
                                        16.5. The purpose of this statute is to                 vendor to request a debriefing on orders              collection requirements that require the
                                        improve opportunities for competition                   valued over $5 million. The goal is to                approval of the Office of Management


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                                        54010        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        and Budget under 44 U.S.C. 3501, et                     ■ 3. Amend section 16.504 by removing                    (B) A protest of an order valued in
                                        seq.                                                    from paragraph (a)(4)(v) ‘‘16.505(b)(5)’’             excess of $10 million. Protests of orders
                                                                                                and adding ‘‘16.505(b)(6)’’ in its place;             in excess of $10 million may only be
                                        D. Determination to Issue an Interim
                                                                                                and adding paragraph (c)(1)(ii)(D) to                 filed with the Government
                                        Rule
                                                                                                read as follows:                                      Accountability Office, in accordance
                                           A determination has been made under                                                                        with the procedures at 33.104.
                                        the authority of the Secretary of Defense               16.504    Indefinite-quantity contracts.
                                        (DoD), the Administrator of General                     *       *      *    *     *                              (ii) The authority to protest the
                                        Services (GSA), and the Administrator                      (c) * * *                                          placement of an order under this
                                        of the National Aeronautics and Space                      (1) * * *                                          subpart expires on May 27, 2011. (10
                                        Administration (NASA) that urgent and                      (ii) * * *                                         U.S.C. 2304a(d) and 2304c(d), and 41
                                        compelling reasons exist to promulgate                     (D)(1) No task or delivery order                   U.S.C. 253h(d) and 253j(d)).
                                        this interim rule without prior                         contract in an amount estimated to
                                                                                                                                                         (b) * * *
                                        opportunity for public comment. This                    exceed $100 million (including all
                                                                                                options) may be awarded to a single                      (1) * * *
                                        action is necessary because provisions
                                        of the Fiscal Year 2008 National Defense                source unless the head of the agency                     (iii) Orders exceeding $5 million. For
                                        Authorization Act Section 843 go into                   determines in writing that—                           task or delivery orders in excess of $5
                                                                                                   (i) The task or delivery orders                    million, the requirement to provide all
                                        effect on May 27, 2008. The Councils
                                                                                                expected under the contract are so                    awardees a fair opportunity to be
                                        believe that the interim rule in the FAR
                                                                                                integrally related that only a single                 considered for each order shall include,
                                        will provide the contracting officer the
                                                                                                source can reasonably perform the work;               at a minimum—
                                        relevant regulatory guidance needed                        (ii) The contract provides only for
                                        when addressing requirements outlined                   firm-fixed price (see 16.202) task or                    (A) A notice of the task or delivery
                                        in this notice. The rule will also benefit              delivery orders for—                                  order that includes a clear statement of
                                        industry in regards to the requirements                    (A) Products for which unit prices are             the agency’s requirements;
                                        for strengthening competition among                     established in the contract; or
                                        orders, and the ability to protest orders.                                                                       (B) A reasonable response period;
                                                                                                   (B) Services for which prices are
                                        However, pursuant to Pub. L. 98–577                     established in the contract for the                      (C) Disclosure of the significant
                                        and FAR 1.501, the Councils will                        specific tasks to be performed;                       factors and subfactors, including cost or
                                        consider public comments received in                       (iii) Only one source is qualified and             price, that the agency expects to
                                        response to this interim rule in the                    capable of performing the work at a                   consider in evaluating proposals, and
                                        formation of the final rule.                            reasonable price to the Government; or                their relative importance;
                                        List of Subjects in 48 CFR Part 16                         (iv) It is necessary in the public                    (D) Where award is made on a best
                                                                                                interest to award the contract to a single            value basis, a written statement
                                            Government procurement.                             source due to exceptional                             documenting the basis for award and
                                          Dated: September 9, 2008.                             circumstances.
                                                                                                   (2) The head of the agency must notify             the relative importance of quality and
                                        Al Matera,                                                                                                    price or cost factors; and
                                        Director, Office of Acquisition Policy.                 Congress within 30 days after any
                                                                                                determination under paragraph                            (E) An opportunity for a postaward
                                        ■ Therefore, DoD, GSA, and NASA                         (c)(1)(ii)(D)(1)(iv) of this section.                 debriefing in accordance with paragraph
                                        amend 48 CFR part 16 as set forth                          (3) The requirement for a                          (b)(4) of this section.
                                        below:                                                  determination for a single award                      *       *    *     *     *
                                                                                                contract greater than $100 million
                                        PART 16—TYPES OF CONTRACTS                              applies in addition to the requirements                  (4) Postaward Notices and Debriefing
                                        ■ 1. The authority citation for 48 CFR                  of Subpart 6.3.                                       of Awardees for Orders Exceeding $5
                                        part 16 continues to read as follows:                   *       *      *    *     *                           million. The contracting officer shall
                                                                                                ■ 4. Amend section 16.505 by—                         notify unsuccessful awardees when the
                                          Authority: 40 U.S.C. 121(c); 10 U.S.C.                                                                      total price of a task or delivery order
                                        chapter 137; and 42 U.S.C. 2473(c).                     ■ a. Revising paragraph (a)(9);
                                                                                                ■ b. Adding to the end of the fourth                  exceeds $5 million.
                                        ■ 2. Amend section 16.503 by revising
                                        paragraph (b) to read as follows:                       sentence before the period of paragraph                  (i) The procedures at 15.503(b)(1)
                                                                                                (b)(1)(ii) ‘‘and the order does not exceed            shall be followed when providing
                                        16.503   Requirements contracts.                        $5 million’’;                                         postaward notification to unsuccessful
                                        *     *     *     *    *                                ■ c. Redesignating paragraph (b)(1)(iii)
                                                                                                                                                      awardees.
                                          (b) Application. (1) A requirements                   as (b)(1)(iv); and adding a new
                                                                                                paragraph (b)(1)(iii); and                               (ii) The procedures at 15.506 shall be
                                        contract may be appropriate for
                                                                                                ■ d. Redesignating paragraphs (b)(4) and              followed when providing postaward
                                        acquiring any supplies or services when
                                        the Government anticipates recurring                    (b)(5) as paragraphs (b)(5) and (b)(6);               debriefing to unsuccessful awardees.
                                        requirements but cannot predetermine                    and adding a new paragraph (b)(4).                       (iii) A summary of the debriefing shall
                                                                                                ■ The revised text reads as follows:                  be included in the task or delivery order
                                        the precise quantities of supplies or
                                        services that designated Government                     16.505    Ordering.                                   file.
                                        activities will need during a definite                     (a) * * *                                          *       *    *     *     *
                                        period.                                                    (9)(i) No protest under Subpart 33.1 is            [FR Doc. E8–21379 Filed 9–16–08; 8:45 am]
                                          (2) No requirements contract in an                    authorized in connection with the                     BILLING CODE 6820–EP–S
                                        amount estimated to exceed $100                         issuance or proposed issuance of an
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                                        million (including all options) may be                  order under a task-order contract or
                                        awarded to a single source unless a                     delivery-order contract, except for—
                                        determination is executed in accordance                    (A) A protest on the grounds that the
                                        with 16.504(c)(1)(ii)(D).                               order increases the scope, period, or
                                        *     *     *     *    *                                maximum value of the contract; or


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                      54011

                                        DEPARTMENT OF DEFENSE                                   Review, dated September 30, 1993. This                DEPARTMENT OF DEFENSE
                                                                                                rule is not a major rule under 5 U.S.C.
                                        GENERAL SERVICES                                        804.                                                  GENERAL SERVICES
                                        ADMINISTRATION                                                                                                ADMINISTRATION
                                                                                                B. Regulatory Flexibility Act
                                        NATIONAL AERONAUTICS AND                                                                                      NATIONAL AERONAUTICS AND
                                                                                                  The Department of Defense, the
                                        SPACE ADMINISTRATION                                                                                          SPACE ADMINISTRATION
                                                                                                General Services Administration, and
                                        48 CFR Part 23                                          the National Aeronautics and Space                    48 CFR Parts 30 and 52
                                                                                                Administration certify that this final
                                        [FAC 2005–27; FAR Case 2006–025; Item                   rule will not have a significant                      [FAC 2005–27; FAR Case 2007–002; Item
                                        X; Docket 2007–0001; Sequence 18]                       economic impact on a substantial                      XI; Docket 2008–0001, Sequence 7]
                                        RIN 9000–AK76                                           number of small entities within the                   RIN 9000–AL09
                                                                                                meaning of the Regulatory Flexibility
                                        Federal Acquisition Regulation; FAR                     Act, 5 U.S.C. 601, et seq., because the               Federal Acquisition Regulation; FAR
                                        Case 2006–025, Online                                   rule revises language that the Office of              Case 2007–002, Cost Accounting
                                        Representations and Certifications                      Management and Budget (OMB) has                       Standards (CAS) Administration and
                                        Application Review                                      already approved for obtaining                        Associated Federal Acquisition
                                                                                                representations and certifications under              Regulation Clauses
                                        AGENCIES: Department of Defense (DoD),
                                        General Services Administration (GSA),                  OMB Control Numbers 9000–0134 and                     AGENCIES:  Department of Defense (DoD),
                                        and National Aeronautics and Space                      9000–0139 for compliance with Section                 General Services Administration (GSA),
                                        Administration (NASA).                                  6002 of the Resource Conservation and                 and National Aeronautics and Space
                                        ACTION: Final rule.                                     Recovery Act and the requirements of                  Administration (NASA).
                                                                                                Executive Order 12969, Emergency                      ACTION: Interim rule with request for
                                        SUMMARY:   The Civilian Agency                          Planning and Community Right-to-                      comments.
                                        Acquisition Council and the Defense                     Know Act of 1986. No comments were
                                        Acquisition Regulations Council                         received with regard to an impact on                  SUMMARY:   The Civilian Agency
                                        (Councils) have agreed to adopt as final,               small entities.                                       Acquisition Council and the Defense
                                        without change, an interim rule                                                                               Acquisition Regulations Council
                                        amending the Federal Acquisition                        C. Paperwork Reduction Act                            (Councils) have agreed on an interim
                                        Regulation (FAR) to revise the                                                                                rule amending the Federal Acquisition
                                        prescription for use of clauses for the                   The Paperwork Reduction Act does                    Regulation (FAR) to revise the contract
                                        use of Environmental Protection                         apply; however, these changes to the                  clauses related to the administration of
                                        Agency-designated products and toxic                    FAR do not impose additional                          the Cost Accounting Standards (CAS) to
                                        chemical release reporting.                             information collection requirements to                maintain consistency between the FAR
                                        DATES: Effective Date: September 17,                    the paperwork burden previously                       and CAS.
                                        2008.                                                   approved under OMB Control Numbers                    DATES: Effective Date: October 17, 2008.
                                                                                                9000–0134 and 9000–0139.                                Comment Date: Interested parties
                                        FOR FURTHER INFORMATION CONTACT Mr.
                                        Ernest Woodson Procurement Analyst,                     List of Subjects in 48 CFR Part 23                    should submit written comments to the
                                        at (202) 501–3775 for clarification of                                                                        FAR Secretariat on or before November
                                        content. For information pertaining to                      Government procurement.                           17, 2008 to be considered in the
                                        status or publication schedules, contact                  Dated: September 9, 2008.                           formulation of a final rule.
                                        the FAR Secretariat at (202) 501–4755.                  Al Matera,                                            ADDRESSES: Submit comments
                                        Please cite FAC 2005–27, FAR case                                                                             identified by FAC 2005–27, FAR case
                                                                                                Director, Office of Acquisition Policy.
                                        2006–025.                                                                                                     2007–002, by any of the following
                                        SUPPLEMENTARY INFORMATION:                              Interim Rule Adopted as Final Without                 methods:
                                                                                                Change                                                  • Regulations.gov: http://
                                        A. Background                                                                                                 www.regulations.gov. Submit comments
                                           DoD, GSA, and NASA published an                      ■ Accordingly, under the authority of 40              via the Federal eRulemaking portal by
                                        interim rule in the Federal Register at                 U.S.C. 121, the interim rule amending                 inputting ‘‘FAR Case 2007–002’’ under
                                        72 FR 46359 on August 17, 2007, to                      48 CFR part 23 which was published in                 the heading ‘‘Comment or Submission’’.
                                        amend FAR 23.406 and 23.906 to revise                   the Federal Register at 72 FR 46359,                  Select the link ‘‘Send a Comment or
                                        the prescriptions for the use of 52.223–                August 17, 2007, is adopted as a final                Submission’’ that corresponds with FAR
                                        9 and 52.223–14 to provide for their use                rule without change.                                  Case 2007–002. Follow the instructions
                                        under the same circumstances as the                     [FR Doc. E8–21378 Filed 9–16–08; 8:45 am]             provided to complete the ‘‘Public
                                        prescription for use of their associated                                                                      Comment and Submission Form’’.
                                                                                                BILLING CODE 6820–EP–S
                                        provisions. These revisions ensure                                                                            Please include your name, company
                                        compliance with the requirements of 40                                                                        name (if any), and ‘‘FAR Case 2007–
                                        CFR part 247 and 42 U.S.C. 11023. The                                                                         002’’ on your attached document.
                                        comment period closed October 16,                                                                               • Fax: 202–501–4067.
                                        2007. No public comments were                                                                                   • Mail: General Services
                                        received on the rule. The Councils have                                                                       Administration, Regulatory Secretariat
                                        determined to adopt the interim rule as                                                                       (VPR), 1800 F Street, NW., Room 4041,
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                                        final, without change.                                                                                        ATTN: Laurieann Duarte, Washington,
                                           This is not a significant regulatory                                                                       DC 20405.
                                        action and, therefore, was not subject to                                                                       Instructions: Please submit comments
                                        review under Section 6(b) of Executive                                                                        only and cite FAC 2005–27, FAR case
                                        Order 12866, Regulatory Planning and                                                                          2007–002, in all correspondence related


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                                        54012        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        to this case. All comments received will                revised to reflect the amendments                     Standards that it is to describe.
                                        be posted without change to http://                     promulgated by the CAS Board on June                  However, pursuant to Public Law 98–
                                        www.regulations.gov, including any                      14, 2007.                                             577 and FAR 1.501, the Councils will
                                        personal and/or business confidential                     4. FAR 52.230–4, Consistency of Cost                consider public comments received in
                                        information provided.                                   Accounting Practices, is revised to                   response to this interim rule in the
                                        FOR FURTHER INFORMATION CONTACT Mr.                     maintain consistency with all other CAS               formation of the final rule.
                                        Ed Chambers, Procurement Analyst, at                    clauses in specifying the rate to be used
                                                                                                to compute interest on overpayments by                List of Subjects in 48 CFR Parts 30 and
                                        (202) 501–3221 for clarification of                                                                           52
                                        content. Please cite FAC 2005–27, FAR                   the Government.
                                        case 2007–002. For information                            5. FAR 52.230–3(a)(3)(ii) is revised to                 Government procurement.
                                        pertaining to status or publication                     correctly reference 48 CFR 9903.201–                    Dated: September 9, 2008.
                                        schedules, contact the FAR Secretariat                  6(c), Desirable change.
                                                                                                                                                      Al Matera,
                                        at (202) 501–4755.                                        This is not a significant regulatory
                                                                                                action and, therefore, was not subject to             Director, Office of Acquisition Policy.
                                        SUPPLEMENTARY INFORMATION:
                                                                                                review under Section 6(b) of Executive                ■ Therefore, DoD, GSA, and NASA
                                        A. Background                                           Order 12866, Regulatory Planning and                  amend 48 CFR parts 30 and 52 as set
                                                                                                Review, dated September 30, 1993. This                forth below:
                                           On June 14, 2007, the CAS Board
                                                                                                rule is not a major rule under 5 U.S.C.               ■ 1. The authority citation for 48 CFR
                                        published a final rule (72 FR 32809)
                                                                                                804.                                                  parts 30 and 52 continues to read as
                                        revising the contract clauses for CAS
                                        administration. The final rule effected                 B. Regulatory Flexibility Act                         follows:
                                        the following changes:                                                                                          Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                                                                                   The interim rule is not expected to
                                           • Amended the CAS applicability                      have a significant economic impact on
                                                                                                                                                      chapter 137; and 42 U.S.C. 2473(c).
                                        threshold to be the same as the                         a substantial number of small entities
                                        threshold for compliance with the Truth                                                                       PART 30—COST ACCOUNTING
                                                                                                within the meaning of the Regulatory                  STANDARDS ADMINISTRATION
                                        in Negotiations Act (TINA) as required                  Flexibility Act, 5 U.S.C. 601, et seq.,
                                        by section 822 of the 2006 National                     because contracts and subcontracts                    30.201–4     [Amended]
                                        Defense Authorization Act (Pub. L. 109–                 awarded to small businesses are exempt                ■  2. Amend section 30.201–4 in
                                        163). The TINA threshold is currently                   from the Cost Accounting Standards.                   paragraph (b)(1) by removing
                                        $650,000.                                               Therefore, an Initial Regulatory                      ‘‘$500,000’’ and adding ‘‘$650,000’’ in
                                           • Changed the effective dates of 48                  Flexibility Analysis has not been                     its place.
                                        CFR 9903.201–3 and 48 CFR 9903.201–                     performed. The Councils will consider
                                        4(a), (c), and (e) from April 2000 and                  comments from small entities                          PART 52—SOLICITATION PROVISIONS
                                        June 2000, respectively, to June 2007.                  concerning the affected FAR Parts 30                  AND CONTRACT CLAUSES
                                           On June 14, 2000, the CAS Board                      and 52 in accordance with 5 U.S.C. 610.
                                        published a final rule (65 FR 37470)                                                                          52.230–1     [Amended]
                                                                                                Interested parties must submit such
                                        revising the contract clauses for CAS                   comments separately and should cite 5                 ■  3. Amend section 52.230–1 by
                                        administration. The final rule effected                 U.S.C 601, et seq. (FAC 2005–27, FAR                  revising the date of the provision to read
                                        the following changes:                                  case 2007–002), in correspondence.                    ‘‘(OCT 2008)’’, and by removing from I.
                                           • Specified that the interest rate for                                                                     Disclosure Statement—Cost Accounting
                                        overpayments by the Government under                    C. Paperwork Reduction Act                            Practices and Certification, in paragraph
                                        48 CFR 9903.201–4(a), (c), and (e) shall                  The Paperwork Reduction Act does                    (a) ‘‘$500,000’’ and adding ‘‘$650,000’’
                                        be computed at the annual rate                          not apply because the changes to the                  in its place.
                                        established under section 6621(a)(2) of                 FAR do not impose information
                                        the Internal Revenue Code of 1986 (26                                                                         52.230–2     [Amended]
                                                                                                collection requirements that require the
                                        U.S.C. 6621(a)(2)).                                     approval of the Office of Management                  ■  4. Amend section 52.230–2 by—
                                           In order to maintain consistency                     and Budget under 44 U.S.C. 3501, et                   ■  a. Revising the date of the clause to
                                        between CAS and FAR in matters                          seq.                                                  read ‘‘(OCT 2008)’’;
                                        relating to the administration of CAS,                                                                        ■ b. Removing from paragraph (a)(5)
                                        the Councils are revising the FAR as                    D. Determination to Issue an Interim                  ‘‘6621’’ and adding ‘‘6621(a)(2)’’ in its
                                        outlined below:                                         Rule                                                  place each time it appears; and
                                           1. FAR 30.201–4(b)(1), the                             A determination has been made under                 ■ c. Removing from paragraph (d)
                                        prescription for use of the FAR clause                  the authority of the Secretary of Defense             ‘‘$500,000’’ and adding ‘‘$650,000’’ in
                                        at 52.230–3, is revised to reflect the                  (DoD), the Administrator of General                   its place.
                                        amendments promulgated by the CAS                       Services (GSA), and the Administrator                 ■ 5. Amend section 52.230–3 by—
                                        Board on June 14, 2007.                                 of the National Aeronautics and Space                 ■ a. Revising the date of the clause;
                                           2. FAR 52.230. The following clauses                 Administration (NASA) that urgent and                 ■ b. Removing from paragraph (a)(3)(ii)
                                        are revised to reflect the amendments                   compelling reasons exist to promulgate                ‘‘9903.201–6(b)’’ and adding ‘‘9903.201–
                                        promulgated by the CAS Board on June                    this interim rule without prior                       6(c)’’ in its place;
                                        14, 2007 and June 14, 2000:                             opportunity for public comment. This                  ■ c. Revising the second sentence of
                                           a. FAR 52.230–2, Cost Accounting                     action is necessary because Federal                   paragraph (a)(4); and
                                        Standards.                                              Acquisition Regulation Part 30, Cost                  ■ d. Removing from paragraph (d)(2)
                                           b. FAR 52.230–3, Disclosure and                      Accounting Standards, describes                       ‘‘$500,000’’ and adding ‘‘$650,000’’ in
                                        Consistency of Cost Accounting                          policies and procedures for applying the              its place.
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                                        Practices.                                              Cost Accounting Standards Board                       ■ The revised text reads as follows:
                                           c. FAR 52.230–5, Cost Accounting                     (CASB) rules and regulations (48 CFR
                                        Standards—Educational Institution.                      Chapter 99 (FAR Appendix). Without                    52.230–3 Disclosure and Consistency of
                                           3. FAR 52.230–1, Cost Accounting                     this interim rule, FAR Part 30 is                     Cost Accounting Practices.
                                        Standards Notices and Certification, is                 inconsistent with the Cost Accounting                 *        *   *     *      *


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                                54013

                                           DISCLOSURE AND CONSISTENCY OF                        pertain to contracts with foreign                     List of Subjects in 48 CFR Parts 30 and
                                        COST ACCOUNTING PRACTICES (OCT                          concerns, including United Kingdom                    52
                                        2008)                                                   (U.K.) concerns.
                                           (a) * * *                                                                                                      Government procurement.
                                           (4) * * * Such adjustment shall provide for          DATES: Effective Date: October 17, 2008.
                                                                                                                                                        Dated: September 9, 2008.
                                        recovery of the increased costs to the United           FOR FURTHER INFORMATION CONTACT: For
                                                                                                                                                      Al Matera,
                                        States together with interest thereon                   clarification of content, contact Mr.
                                        computed at the annual rate established                                                                       Director, Office of Acquisition Policy.
                                                                                                Edward Chambers, at (202) 501–3221.
                                        under section 6621(a)(2) of the Internal                For information pertaining to status or               ■ Therefore, DoD, GSA, and NASA
                                        Revenue Code of 1986 (26 U.S.C. 6621(a)(2)),            publication schedules, contact the                    amend 48 CFR parts 30 and 52 as set
                                        from the time the payment by the United                                                                       forth below:
                                        States was made to the time the adjustment
                                                                                                Regulatory Secretariat at (202) 501–
                                                                                                4755. Please cite FAC 2005–27, FAR                    ■ 1. The authority citation for 48 CFR
                                        is effected.
                                                                                                case 2006–004.                                        parts 30 and 52 continues to read as
                                        *      *     *       *      *                                                                                 follows:
                                                                                                SUPPLEMENTARY INFORMATION:
                                        52.230–4    [Amended]                                                                                           Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                                                                                A. Background                                         chapter 137; and 42 U.S.C. 2473(c).
                                        ■  6. Amend section 52.230–4 by
                                        revising the date of the clause date to                   The Councils published a proposed
                                                                                                rule in the Federal Register at 71 FR                 PART 30—COST ACCOUNTING
                                        read ‘‘(OCT 2008)’’; and removing
                                                                                                58338, October 3, 2006, to maintain                   STANDARDS ADMINISTRATION
                                        ‘‘6621’’ and adding ‘‘6621(a)(2)’’ in its
                                        place each time it appears.                             consistency between CAS and FAR in                    ■ 2. Amend section 30.201–4 by
                                                                                                matters relating to disclosure                        revising paragraph (c) to read as follows:
                                        52.230–5    [Amended]                                   requirements and the administration of
                                        ■  7. Amend section 52.230–5 by—                        CAS for contracts awarded to foreign                  30.201–4     Contract clauses.
                                        ■  a. Revising the date of the clause date              concerns, including U.K. concerns.                    *      *     *    *    *
                                        to read ‘‘(OCT 2008)’’;                                   This proposed rule was issued in                       (c) Disclosure and Consistency of Cost
                                        ■ b. Removing from paragraph (a)(5)                     response to the Cost Accounting                       Accounting Practices for Contracts
                                        ‘‘6621’’ and adding ‘‘6621(a)(2)’’ in its               Standards Board’s interim rule (70 FR                 Awarded to Foreign Concerns. The
                                        place each time it appears; and                         29457, May 23, 2005) (finalized without               contracting officer shall insert the clause
                                        ■ c. Removing from paragraph (d)(2)                     change at 72 FR 32546, June 13, 2007),                at FAR 52.230–4, Disclosure and
                                        ‘‘$500,000’’ and adding ‘‘$650,000’’ in                 revising the applicability of CAS to U.K.             Consistency of Cost Accounting
                                        its place.                                              contracts and subcontracts.                           Practices for Contracts Awarded to
                                        [FR Doc. E8–21367 Filed 9–16–08; 8:45 am]                 The Councils received no comments                   Foreign Concerns, in negotiated
                                        BILLING CODE 6820–EP–S                                  on the proposed rule and have adopted                 contracts with foreign concerns, unless
                                                                                                the proposed rule as a final rule with                the contract is otherwise exempt from
                                                                                                minor changes. The minor changes to                   CAS (see 48 CFR 9903.201–1). Such
                                        DEPARTMENT OF DEFENSE                                   30.201–4(c) clarify that clause 52.230–4              contracts are subject to CAS 401 and
                                                                                                need not be included in contracts with                402 under 48 CFR 9903.201–1(b)(4)(FAR
                                        GENERAL SERVICES                                        foreign concerns otherwise exempt from                Appendix). Foreign concerns do not
                                        ADMINISTRATION                                          CAS coverage, and that foreign concerns               include foreign governments or their
                                                                                                do not include foreign governments, or                agents or instrumentalities.
                                        NATIONAL AERONAUTICS AND                                their agents or instrumentalities.
                                        SPACE ADMINISTRATION                                                                                          *      *     *    *    *
                                                                                                  This is not a significant regulatory
                                                                                                action and, therefore, was not subject to             PART 52—SOLICITATION PROVISIONS
                                        48 CFR Parts 30 and 52                                  review under Section 6(b) of Executive                AND CONTRACT CLAUSES
                                        [FAC 2005–27; FAR Case 2006–004; Item                   Order 12866, Regulatory Planning and
                                        XII; Docket 2008–0001; Sequence 14]                     Review, dated September 30, 1993. This                ■ 3. Amend section 52.230–4 by
                                                                                                rule is not a major rule under 5 U.S.C.               revising the section heading, the clause
                                        RIN 9000–AK58                                                                                                 heading and date, and the first, second,
                                                                                                804.
                                                                                                                                                      and fourth sentences of the clause to
                                        Federal Acquisition Regulation; FAR                     B. Regulatory Flexibility Act                         read as follows.
                                        Case 2006–004, CAS Administration
                                                                                                  The Department of Defense, the
                                                                                                                                                      52.230–4 Disclosure and Consistency of
                                        AGENCIES: Department of Defense (DoD),                  General Services Administration, and                  Cost Accounting Practices for Contracts
                                        General Services Administration (GSA),                  the National Aeronautics and Space                    Awarded to Foreign Concerns.
                                        and National Aeronautics and Space                      Administration certify that this final
                                                                                                                                                      *        *    *    *      *
                                        Administration (NASA).                                  rule will not have a significant                        DISCLOSURE AND CONSISTENCY OF
                                        ACTION: Final rule.                                     economic impact on a substantial                      COST ACCOUNTING PRACTICES FOR
                                                                                                number of small entities within the                   CONTRACTS AWARDED TO FOREIGN
                                        SUMMARY:   The Civilian Agency                          meaning of the Regulatory Flexibility                 CONCERNS (OCT 2008).
                                        Acquisition Council and the Defense                     Act, 5 U.S.C. 601, et seq., because all                 The Contactor agrees that it will
                                        Acquisition Regulations Council                         small businesses are exempt from CAS.                 consistently follow the cost accounting
                                        (Councils) have agreed to adopt a                                                                             practices disclosed on FORM CASB DS–1, or
                                        proposed rule, published in the Federal                 C. Paperwork Reduction Act                            other disclosure form as permitted by 48 CFR
                                        Register at 71 FR 58338, October 3,                       The Paperwork Reduction Act does                    9903.202–1(e), in estimating, accumulating,
                                        2006, as a final rule, with minor                       not apply because the changes to the                  and reporting costs under this contract, and
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                                                                                                                                                      comply with the requirements of CAS 401,
                                        changes. The rule amends the Federal                    FAR do not impose information                         Consistency in Estimating, Accumulating,
                                        Acquisition Regulation (FAR) to                         collection requirements that require the              and Reporting Costs, and CAS 402,
                                        implement revisions to the regulations                  approval of the Office of Management                  Consistency in Allocating Costs Incurred for
                                        related to the administration of the Cost               and Budget under 44 U.S.C. 3501, et                   the Same Purpose. In the event the
                                        Accounting Standards (CAS) as they                      seq.                                                  Contractor fails to follow such practices, or



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                                        54014        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        comply consistently with CAS 401 and 402,               of this rule. Those applicable contracts              52.237–11 is applicable to R&D
                                        it agrees that the contract price shall be              in existence before January 1, 2008, that             contracts and to A&E contracts?
                                        adjusted, together with interest, if such               do not already have the clause shall be                  R&D contracts and A&E contracts are
                                        failure results in increased cost paid by the           modified to include the clause; those                 usually paid by electronic funds
                                        U.S. Government. * * * The Contractor agrees                                                                  transfer. There is usually no cash
                                        that the Disclosure Statement or other form
                                                                                                contracts that have the August 2007
                                        permitted, pursuant to 48 CFR 9903.202–1(e)             edition of the clause shall be modified               payment involved in such contracts.
                                        shall be available for inspection and use by            if the contractor requests, to include the            Therefore, why would contractors who
                                        authorized representatives of the United                newer version contained in this FAC,                  provide R&D or A&E services have to be
                                        States Government.                                      without requiring consideration from                  capable of accepting dollar coins?
                                           (End of clause)                                      the contractor.                                          Response: The inclusion of R&D and
                                        [FR Doc. E8–21365 Filed 9–16–08; 8:45 am]               FOR FURTHER INFORMATION CONTACT: Mr.
                                                                                                                                                      A&E contracts in the FAR matrix as
                                                                                                Michael Jackson, Procurement Analyst,                 applicable to 52.237–11 was an
                                        BILLING CODE 6820–EP–S
                                                                                                at (202) 208–4949 for clarification of                inadvertent error.
                                                                                                                                                         Comment 2: One respondent stated in
                                                                                                content. For information pertaining to
                                        DEPARTMENT OF DEFENSE                                                                                         order to implement these widespread
                                                                                                status or publication schedules, contact
                                                                                                                                                      and extensive changes to vending
                                                                                                the FAR Secretariat at (202) 501–4755.                machines, our members simply need
                                        GENERAL SERVICES                                        Please cite FAC 2005–27, FAR case
                                        ADMINISTRATION                                                                                                more time. Contrary to the statement
                                                                                                2006–027.                                             contained in the Federal Register
                                                                                                SUPPLEMENTARY INFORMATION:                            notice, this interim rule does have a
                                        NATIONAL AERONAUTICS AND
                                        SPACE ADMINISTRATION                                    A. Background                                         significant economic impact. It is not
                                                                                                                                                      accurate to state that ‘‘receiving and
                                                                                                   This final rule amends the FAR to                  dispensing the new coins as part of
                                        48 CFR Parts 37 and 52                                  implement the Presidential $1 Coin Act                business operations should not add to
                                        [FAC 2005–27; FAR Case 2006–027; Item                   of 2005 (Pub. L. 109–145). The                        workload or expense’’ (72 FR 46361,
                                        XIII;Docket 2007–0001; Sequence 5]                      Presidential $1 Coin Act of 2005                      August 17, 2007). Accordingly, we
                                        RIN 9000–AK54
                                                                                                requires the Secretary of the Treasury to             strongly encourage the Councils to
                                                                                                mint and issue annually four new $1                   account for both the workload and
                                        Federal Acquisition Regulation; FAR                     coins bearing the likenesses of                       expense by extending the compliance
                                        Case 2006–027, Accepting and                            Presidents of the United States in the                date to July 1, 2008.
                                        Dispensing of $1 Coin                                   order of their service and to continue to                Response: Section 104 of the
                                                                                                mint and issue ‘‘Sacagawea-design’’                   Presidential $1 Coin Act of 2005 (31
                                        AGENCIES: Department of Defense (DoD),                  coins for circulation. In order to                    U.S.C. 5112(p)(1)), established the
                                        General Services Administration (GSA),                  promote circulation of the coins,                     effective date for this provision to be
                                        and National Aeronautics and Space                      Section 104 of the Public Law also                    January 1, 2008. The effect of this clause
                                        Administration (NASA).                                  requires that Federal agencies take                   is merely to implement the provision of
                                        ACTION: Final rule.                                     action so that, by January 1, 2008,                   law. Notwithstanding, the provision of
                                                                                                entities that operate any business,                   law cannot be modified under these
                                        SUMMARY:    The Civilian Agency                         including vending machines, on any                    circumstances without further
                                        Acquisition Council and the Defense                     premises owned by the United States or                consideration by Congress, who passed
                                        Acquisition Regulations Council                         under the control of any agency or                    the provision of law. Pub. L. 110–147
                                        (Councils) have agreed to adopt as final,               instrumentality of the United States, are             amended section 5112(p)(1)(A) of title
                                        with change, the interim rule amending                  capable of accepting and dispensing $1                31, U.S.C., to allow an exception from
                                        the Federal Acquisition Regulation                      coins and that the entities display                   the $1 coin dispensing capability
                                        (FAR) to implement Section 104 of the                   notices of this capability on the business            requirement for vending machines that
                                        Presidential $1 Coin Act of 2005.                       premises. Subsequent to the passage of                do not receive currency denominations
                                        Section 104 requires that entities that                 the Presidential Coin Act, Pub. L. 110–               greater than $1. Thus, the exception of
                                        operate any business on any premises                    147 amended 31 U.S.C. 5112(p)(1)(A), to               the law provides relief for those vending
                                        owned or controlled by the United                       allow an exception from the $1 coin                   machines.
                                        States be capable of accepting and                      dispensing capability requirement for                    Comment 3: One respondent
                                        dispensing $1 coins on January 1, 2008.                 vending machines that do not receive                  requested an amendment to the interim
                                        Subsequent to this, Pub. L. 110–147                     currency denominations greater than $1.               rule published in the Federal Register,
                                        amended 31 U.S.C. 5112(p)(1)(A), to                     This will require modification of                     August 17, 2007, amending 48 CFR 52
                                        allow an exception from the $1 coin                     existing covered contracts whose period               (Solicitation Provisions and Contract
                                        dispensing capability requirement for                   of performance extends beyond the                     Clauses), Section 52.237–11 (Accepting
                                        vending machines that do not receive                    January 1, 2008 date in order to assure               and Dispensing of $1 Coin) to exempt
                                        currency denominations greater than $1.                 compliance with Section 104 of the Act,               vending machines on Federal property
                                        DATES: Effective Date: September 17,                    as well as compliance with Pub. L. 110–               that do not accept currency
                                        2008.                                                   147.                                                  denominations above $1 from the
                                          Applicability Date: This rule applies                    DoD, GSA, and NASA published an                    requirement to dispense dollar coins.
                                        to all service contracts that involve                   interim rule in the Federal Register at                  Response: The very intent of the
                                        business operations conducted in U.S.                   72 FR 46361, August 17, 2007. The 60–                 statute is to require those businesses
                                        coins and currency, including vending                   day comment period for the interim rule               and instrumentalities operating on
                                        machines, on any premises owned by                      ended October 16, 2007. Three                         Federal property to be able to accept
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                                        the United States or under the control                  respondents provided comments. The                    and dispense the $1 coin if that business
                                        of any agency or instrumentality of the                 comments are discussed below.                         or instrumentality is conducting a
                                        United States. The clause shall be                         Public Comments                                    business whereby coins or currency is
                                        placed in all such solicitations and                       Comment 1: One respondent asked                    exchanged. However, Pub. L. 110–147
                                        contracts on and after the effective date               why does the FAR matrix show that                     amended section 5112(p)(1)(A) of title


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                                                     Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                                54015

                                        31, U.S.C., to allow an exception from                  coins would impair the public’s ability                  The National Automatic
                                        the $1 coin dispensing capability                       to circulate $1 coins. Thus, Pub. L. 110–             Merchandising Association (NAMA) is
                                        requirement for vending machines that                   147 amended section 5112(p)(1)(A) of                  the agent that took the lead in causing
                                        do not receive currency denominations                   title 31, U.S.C., to allow an exception               the amendment to the original statute.
                                        greater than $1.                                        from the $1 coin dispensing capability                The December 2007 amendment made
                                           Comment 4: One commenter stated                      requirement for vending machines that                 an exception to the rule and added that
                                        the key paragraph within Section 104,                   do not receive currency denominations                 vending machines that did not receive
                                        (p)(1) is Paragraph A. It states: ‘‘any                 greater than $1.                                      denominations over $1 were released
                                        business operations conducted by any                       In reviewing the interim FAR                       from the requirement of dispensing the
                                        such agency, instrumentality, system, or                language, the reference to ‘‘higher than              $1 coin. NAMA informed that most of
                                        entity that involve coins or currency                   $1’’ in FAR Clauses 37.116–1                          their members are small businesses.
                                        will be fully capable of accepting and                  Presidential $1 Coin Act of 2005 (new                 NAMA is of the belief that the December
                                        dispensing $1 coins in connection with                  inserted text) and 52.237–11 ‘‘Accepting              2007 amendment to exempt vending
                                        such operations;’’.                                     and Dispensing $1 Coin’’ paragraph ‘‘b’’,             machines that do not take greater than
                                           Commenter stated that they believe it                be modified to change the wording                     $1 from the dispensing requirement will
                                        is perfectly reasonable to read this                    ‘‘…higher than $1…’’ to read as                       protect most small businesses. For those
                                        paragraph to mean that a vending                        ‘‘…greater than $1…’’ since this is more              machines that take denominations
                                        operation on Federal property in which                  consistent with the reference to a                    greater than $1, these machines are
                                        every vending machine accepts dollar                    currency denomination.                                relatively new and already accept the $1
                                        coins, every bill changer in the                           This is not a significant regulatory               coin and would have to be refitted with
                                        operation dispenses dollar coins, and                   action and, therefore, was not subject to             dispensers that would cost about $40.
                                        every machine that accepts                              review under Section 6(b) of Executive                For those older machines that take
                                        denominations above $1 dispenses                        Order 12866, Regulatory Planning and                  denominations above $1, these
                                        dollar coins in change is in full                       Review, dated September 30, 1993. This                machines will require new parts at a
                                        compliance with this paragraph.                         rule is not a major rule under 5 U.S.C.               cost of about $400.00. NAMA is of the
                                           Response: Due to the amended                         804.                                                  belief that most of the machines that
                                        language at Pub. L. 110–147, the
                                                                                                B. Regulatory Flexibility Act                         take denominations greater than $1 are
                                        commenter is correct.
                                           Comment 5: One commenter stated                         The Department of Defense, the                     of the newer variety and therefore can
                                        we note that Paragraph (B) requires the                 General Services Administration, and                  be brought into compliance with the
                                        display of signs and notices denoting $1                the National Aeronautics and Space                    dispensing $1 coin requirement at an
                                        coin capability, ‘‘including on each                    Administration certify that this final                expense of $40. For vending machines
                                        vending machine.’’ Yet Paragraph (A),                   rule will not have a significant                      already configured to accept and
                                        the key paragraph that imposes the                      economic impact on a substantial                      dispense the Sacagawea-design $1 coin,
                                        general coin acceptance and dispensing                  number of small entities within the                   which has been in circulation since
                                        obligation, lacks this individual vending               meaning of the Regulatory Flexibility                 January 2000, there will be no need to
                                        machine requirement. Again, if                          Act, 5 U.S.C. 601, et seq., because                   change or modify equipment.
                                        Congress truly intended to require every                accepting $1 coins as part of business                Contracting officers have been
                                        vending machine to dispense dollar                      operations should not add to workload                 instructed in the Applicability Date of
                                        coins in change, it could easily have                   or expense. While it is relatively easy               the preamble to modify contracts upon
                                        stated this in the key Paragraph,                       for beverage and other vending                        request of the contractor, to change the
                                        Paragraph A. It did not.                                machines to accept $1 coins,                          older version of the clause to the newer
                                           Response: See response to comment 3.                 configuring the machines to dispense                  version without requiring consideration
                                           Comment 6: One commenter stated                      the $1 coin as change is much more                    from the contractor.
                                        requiring vending machines that do not                  difficult. For several years, most                    C. Paperwork Reduction Act
                                        accept denominations higher than $1 to                  vending machines have been fully
                                                                                                capable of accepting the $1 coin.                       The Paperwork Reduction Act does
                                        dispense dollar coins does not serve the
                                                                                                However, due to the vending price of                  not apply because the changes to the
                                        purpose of Section 104 of the
                                                                                                beverages, machines usually have no                   FAR do not impose information
                                        Presidential Dollar Coin Act of 2005.
                                                                                                reason to dispense $1 coins as change                 collection requirements that require the
                                        The purpose of Section 104 of the Act,
                                                                                                during a normal transaction, and                      approval of the Office of Management
                                        requiring that dollar coins be available
                                                                                                therefore, are not currently set up for               and Budget under 44 U.S.C. 3501, et
                                        on all Federal property and that signs be
                                                                                                this transaction. In order to dispense a              seq.
                                        posted denoting such availability, is to
                                        promote wider distribution and use of                   $1 coin, each machine would need to be                List of Subjects in 48 CFR Parts 37 and
                                        dollar coins in commerce. The Preamble                  individually serviced and retrofitted. In             52
                                        to Pub. L. 109–145, enacted January 4,                  the case of coin mechanisms                             Government procurement.
                                        2005, states that one of the purposes of                manufactured before the year 2000,
                                        the Law is ‘‘to improve circulation of                  these mechanisms will have to be                        Dated: September 9, 2008
                                        the $1 coin.’’ Requiring machines that                  replaced. The cost of a new mechanism                 Al Matera,
                                        accept nothing higher than the $1                       is approximately $300 - $400. In the                  Director, Office of Acquisition Policy.
                                        denomination to be modified to                          case of mechanisms manufactured after                 ■ Accordingly, the interim rule
                                        dispense dollar coins would not                         the year 2000, a new coin cassette will               amending 48 CFR parts 37 and 52 which
                                        improve circulation of dollar coins.                    cost from $20 - $40. However, due to                  was published in the Federal Register at
                                        Instead, this requirement would involve                 Congress amending the statute and                     72 FR 46361, August 17, 2007, is
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                                        needless expense.                                       making the $1 coin dispensing                         adopted as a final rule with the
                                           Response: Congress did recognize that                requirement only apply to those                       following changes:
                                        requiring vending machines that did not                 machines that receive currency                        ■ 1. The authority citation for 48 CFR
                                        receive denominations greater than $1                   denominations greater than $1, this                   parts 37 and 52 continues to read as
                                        coins, but programmed to dispense $1                    eases the burden on industry.                         follows:


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                                        54016              Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                          Authority: 40 U.S.C. 121(c); 10 U.S.C.                       DEPARTMENT OF DEFENSE                                 PART 52—SOLICITATION PROVISIONS
                                        chapter 137; and 42 U.S.C. 2473(c).                                                                                  AND CONTRACT CLAUSES
                                                                                                       GENERAL SERVICES
                                        PART 37—SERVICE CONTRACTING                                    ADMINISTRATION                                        52.212–5    [Amended]

                                        ■ 2. Amend section 37.116–1 by                                                                                       ■ 3. Amend section 52.212–5 by
                                                                                                       NATIONAL AERONAUTICS AND                              removing from paragraph (b)(26) the
                                        removing from the second sentence the                          SPACE ADMINISTRATION
                                        words ‘‘United States’’; and adding a                                                                                word ‘‘FAR’’.
                                        sentence to the end of the paragraph to                                                                              [FR Doc. E8–21368 Filed 9–16–08; 8:45 am]
                                                                                                       48 CFR Parts 15 and 52
                                        read as follows:                                                                                                     BILLING CODE 6820–EP–S
                                                                                                       [FAC 2005–27; Item XIV;Docket FAR–2008–
                                        37.116–1           Presidential $1 Coin Act of 2005.           0007; Sequence 1]
                                                                                                                                                             DEPARTMENT OF DEFENSE
                                          * * * Pub. L. 110–147 amended 31                             Federal Acquisition Regulation;
                                        U.S.C. 5112(p)(1)(A) to allow an                               Technical Amendment                                   GENERAL SERVICES
                                        exception from the $1 coin dispensing                                                                                ADMINISTRATION
                                        capability requirement for those                               AGENCIES: Department of Defense (DoD),
                                        vending machines that do not receive                           General Services Administration (GSA),
                                                                                                       and National Aeronautics and Space                    NATIONAL AERONAUTICS AND
                                        currency denominations greater than $1.                                                                              SPACE ADMINISTRATION
                                                                                                       Administration (NASA).
                                        PART 52—SOLICITATION PROVISIONS                                ACTION: Final rule.
                                                                                                                                                             48 CFR Chapter 1
                                        AND CONTRACT CLAUSES
                                                                                                       SUMMARY:   This document makes
                                        ■ 3. Amend section 52.212–5 by                                 amendments to the Federal Acquisition                 [Docket FAR 2008–0003, Sequence 2]
                                        revising the date of the clause and                            Regulation in order to make editorial
                                        paragraph (c)(7) to read as follows:                           changes.                                              Federal Acquisition Regulation;
                                                                                                       DATES: Effective Date: September 17,
                                                                                                                                                             Federal Acquisition Circular 2005–27;
                                        52.212–5 Contract Terms and Conditions                         2008.                                                 Small Entity Compliance Guide
                                        Required to Implement Statutes or
                                        Executive Orders—Commercial Items.                             FOR FURTHER INFORMATION CONTACT: The                  AGENCIES: Department of Defense (DoD),
                                        *        *          *       *      *                           FAR Secretariat, Room 4041, GS                        General Services Administration (GSA),
                                          CONTRACT TERMS AND CONDITIONS                                Building, Washington, DC, 20405, (202)                and National Aeronautics and Space
                                        REQUIRED TO IMPLEMENT STATUTES OR                              501–4755, for information pertaining to               Administration (NASA).
                                        EXECUTIVE ORDERS—COMMERCIAL                                    status or publication schedules. Please
                                        ITEMS (SEP 2008).                                              cite FAC 2005–27, Technical                           ACTION:   Small Entity Compliance Guide.
                                        *        *          *       *      *                           Amendment.
                                                                                                                                                             SUMMARY:   This document is issued
                                          (c) * * *
                                                                                                                                                             under the joint authority of the
                                          (7) 52.237–11, Accepting and Dispensing of
                                        $1 Coin (SEP 2008) (31 U.S.C. 5112(p)(1)).                     List of Subjects in 48 CFR Parts 15 and               Secretary of Defense, the Administrator
                                                                                                       52                                                    of General Services and the
                                        *     *    *     *     *                                                                                             Administrator of the National
                                                                                                         Government procurement.
                                        ■ 4. Amend section 52.237–11 by                                                                                      Aeronautics and Space Administration.
                                        revising the date of the clause and                              Dated: September 9, 2008                            This Small Entity Compliance Guide
                                        paragraph (b) to read as follows:                              Al Matera,                                            has been prepared in accordance with
                                                                                                       Director, Office of Acquisition Policy.               Section 212 of the Small Business
                                        52.237–11           Accepting and Dispensing of $1
                                                                                                       ■ Therefore, DoD, GSA, and NASA                       Regulatory Enforcement Fairness Act of
                                        Coin.
                                                                                                       amend 48 CFR parts 15 and 52 as set                   1996. It consists of a summary of rules
                                        *        *          *       *      *                           forth below:                                          appearing in Federal Acquisition
                                         ACCEPTING AND DISPENSING OF $1                                                                                      Circular (FAC) 2005–27 which amend
                                                                                                       ■ 1. The authority citation for 48 CFR
                                        COIN (SEP 2008)
                                                                                                       parts 15 and 52 continues to read as                  the FAR. An asterisk (*) next to a rule
                                        *        *          *       *      *                           follows:                                              indicates that a regulatory flexibility
                                          (b) All business operations conducted                                                                              analysis has been prepared. Interested
                                        under this contract that involve coins or                        Authority: 40 U.S.C. 121(c); 10 U.S.C.
                                                                                                       chapter 137; and 42 U.S.C. 2473(c).                   parties may obtain further information
                                        currency, including vending machines, shall
                                        be fully capable of—
                                                                                                                                                             regarding these rules by referring to FAC
                                          (1) Accepting $1 coins in connection with                    PART 15—CONTRACTING BY                                2005–27 which precedes this document.
                                        such operations; and                                           NEGOTIATION                                           These documents are also available via
                                          (2) Dispensing $1 coins in connection with                                                                         the Internet at http://
                                                                                                       15.404–1    [Amended]
                                        such operations, unless the vending machine                                                                          www.regulations.gov.
                                        does not receive currency denominations                        ■ 2. Amend section 15.404–1 by
                                        greater than $1.                                               removing from paragraph (a)(7) ‘‘http://              FOR FURTHER INFORMATION CONTACT:
                                                                                                       www.acq.osd.mil/dpap/contractpricing/                 Laurieann Duarte, Regulatory
                                        *      *     *    *                *
                                                                                                       index.htm’’ and adding ‘‘http://                      Secretariat, (202) 501–4225. For
                                            (End of clause)                                            www.acq.osd.mil/dpap/cpf/                             clarification of content, contact the
                                        [FR Doc. E8–21369 Filed 9–16–08; 8:45 am]                      contractlpricing                                      analyst whose name appears in the table
                                        BILLING CODE 6820–EP–S                                         lreferencelguides.html ’’in its place.                below.
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                                                                                                             LIST OF RULES IN FAC 2005–27
                                             Item                                                              Subject                                                         FAR case       Analyst

                                          I ............    Correcting Statutory References Related to theHigher Education Act of 1965 ..............................     2007–020        Cundiff.



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                                                           Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations                                                                              54017

                                                                                                            LIST OF RULES IN FAC 2005–27—Continued
                                             Item                                                                            Subject                                                                            FAR case       Analyst

                                          II ...........   Changing the Name of the Office of Small andDisadvantaged Business Utilization for DoD ........                                                    2008–001     Cundiff.
                                          III ..........   Administrative Changes to the FPI Blanket Waiver and the JWOD Program Name .....................                                                   2007–015     Clark.
                                          IV ..........    Local Community Recovery Act of 2006 .........................................................................................                     2006–014     Clark.
                                          V ...........    Additional Requirements for Competition Advocate AnnualReports ...............................................                                     2007–007     Woodson.
                                          VI ..........    Contract Debts .................................................................................................................................   2005–018     Murphy.
                                          VII .........    Subcontractor Requests for Bonds ..................................................................................................                2007–022     Jackson.
                                          VIII ........    Extension of Authority for Use of Simplified Acquisition Procedures for Certain Commercial                                                         2008–002     Jackson.
                                                             Items.
                                          IX ..........    Enhanced Competition for Task and Delivery OrderContracts—Section 843 of the Fiscal Year                                                           2008–006     Clark.
                                                             2008 National Defense Authorization Act(Interim).
                                          X ...........    Online Representations and Certifications ApplicationReview ........................................................                               2006–025     Woodson.
                                          XI ..........    Cost Accounting Standards (CAS) Administration andAssociated Federal Acquisition Regulation                                                        2007–002     Chambers.
                                                             Clauses (Interim).
                                          XII .........    CAS Administration ..........................................................................................................................      2006–004     Chambers.
                                          XIII ........    Accepting and Dispensing of $1 Coin .............................................................................................                  2006–027     Jackson.
                                          XIV .......      Technical Amendments ...................................................................................................................



                                        SUPPLEMENTARY INFORMATION:                                               the JWOD Program to the AbilityOne                                        Item VI—Contract Debts (FAR Case
                                        Summaries for each FAR rule follow.                                      Program. These changes are                                                2005–018)
                                        For the actual revisions and/or                                          administrative in nature and any impact
                                        amendments to these FAR cases, refer to                                  will be minimal.                                                             This final rule amends and
                                        the specific item number and subject set                                                                                                           reorganizes FAR Subpart 32.6, Contract
                                        forth in the documents following these                                   Item IV—Local Community Recovery                                          Debts, and amends associated other FAR
                                        item summaries.                                                          Act of 2006 (FAR Case 2006–014)                                           coverage, based on the
                                                                                                                                                                                           recommendations of the Department of
                                        FAC 2005–27 amends the FAR as                                               The Civilian Agency Acquisition
                                                                                                                                                                                           Defense Contract Debt Integrated
                                        specified below:                                                         Council and the Defense Acquisition
                                                                                                                 Regulations Council have adopted as                                       Process Team, to improve contract debt
                                        Item I—Correcting Statutory References                                                                                                             controls and procedures and to ensure
                                        Related to the Higher Education Act of                                   final, with a minor change to the second
                                                                                                                 interim rule, two interim rules                                           consistency within and between
                                        1965 (FAR Case 2007–020)                                                                                                                           existing regulations. FAR Subpart 32.6
                                                                                                                 amending the Federal Acquisition
                                           This final rule amends the Federal                                    Regulation (FAR) to implement                                             prescribes policies and procedures for
                                        Acquisition Regulation to reflect the                                    amendments to the Robert T. Stafford                                      identifying, collecting, and deferring
                                        correct public law citations for the                                     Disaster Relief and Emergency                                             collection of contract debts (including
                                        definitions of minority institution and                                  Assistance Act. The first interim rule                                    interest, if applicable). Throughout, the
                                        Hispanic-serving institution. The                                        was published in the Federal Register at                                  term ‘‘responsible official’’ has been
                                        citations changed when the Higher                                        71 FR 44546, August 4, 2006. The                                          replaced with the specific individual/
                                        Education Act of 1965 was amended by                                     second interim rule was published in                                      organization responsible for fulfilling
                                        the Higher Education Amendments of                                       the Federal Register at 72 FR 63084,                                      the FAR requirement. FAR 32.601 is
                                        1998.                                                                    November 7, 2007.                                                         revised to specify what constitutes a
                                        Item II—Changing the Name of the                                                                                                                   contract debt, rather than how a contract
                                                                                                                 Item V—Additional Requirements for                                        debt may arise. All discussions of
                                        Office of Small and Disadvantaged                                        Competition Advocate Annual Reports
                                        Business Utilization for DoD (FAR Case                                                                                                             contract debt determinations are
                                                                                                                 (FAR Case 2007–007)                                                       consolidated in FAR 32.603, including
                                        2008–001)
                                                                                                                    This final rule amends the Federal                                     the responsibility of the contracting
                                           This final rule amends the Federal                                                                                                              officer in making debt determinations.
                                        Acquisition Regulation to change the                                     Acquisition Regulation 6.502 to require
                                                                                                                 that annual reviews by executive agency                                   All discussions of the demand for
                                        name of the ‘‘Office of Small and                                                                                                                  payment are consolidated in FAR
                                        Disadvantaged Business Utilization’’ to                                  competition advocates be provided in
                                                                                                                 writing to both the agency senior                                         32.604, including the requirements for
                                        the ‘‘Office of Small Business Programs’’
                                                                                                                 procurement executive and the agency                                      demand letters. All discussions of final
                                        for the Department of Defense. Section
                                                                                                                 chief acquisition officer, and ensure task                                decisions are consolidated in FAR
                                        904 of the National Defense
                                                                                                                 and delivery orders over $1,000,000                                       32.605. FAR 32.606 includes all
                                        Authorization Act for Fiscal Year 2006,
                                                                                                                 issued under multiple award contracts                                     coverage on debt collections, including
                                        Pub. L. 109–163, re-designated the
                                        ‘‘Office of Small and Disadvantaged                                      are properly planned, issued, and                                         when responsibility should be
                                        Business Utilization’’.                                                  comply with 8.405 and 16.505. The rule                                    transferred to the Department of
                                                                                                                 provides for one of several initiatives by                                Treasury. All discussions of interest are
                                        Item III—Administrative Changes to the                                   the Administrator, Office of Federal                                      consolidated at FAR 32.608, including
                                        FPI Blanket Waiver and the JWOD                                          Procurement Policy, to reinforce the use                                  how to compute interest. The
                                        Program Name (FAR Case 2007–015)                                         of competition and related practices for                                  Government’s right to make a demand
                                           This final rule amends the language in                                achieving a competitive environment.                                      for payment and start the interest clock
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                                        the Federal Acquisition Regulation to                                    The rule reinvigorates the role of                                        running under the contract is ensured,
                                        increase the blanket waiver threshold                                    agencies’ competition advocates,                                          as is the Government’s right to make a
                                        for small dollar-value purchases from                                    strengthens agencies’ competition                                         demand for payment without first
                                        Federal Prison Industries by Federal                                     practices, and ensures best value for the                                 issuing a final decision of the
                                        agencies and also changes the name of                                    taxpayer.                                                                 contracting officer. A final decision is


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                                        54018        Federal Register / Vol. 73, No. 181 / Wednesday, September 17, 2008 / Rules and Regulations

                                        required only if the contractor disagrees               delivery orders in excess of $5 million;              Item XIII—Accepting and Dispensing of
                                        with the demand for payment.                            and (3) Protest on orders on the grounds              $1 Coin (FAR Case 2006–027)
                                                                                                that the order increases the scope,
                                        Item VII—Subcontractor Requests for                                                                              This final rule adopts, with change,
                                                                                                period, maximum value of the contract
                                        Bonds (FAR Case 2007–022)                                                                                     the interim rule published in the
                                                                                                under which the order is issued; or
                                           This final rule amends the list of laws              valued in excess of $10 million. FAR                  Federal Register at 72 FR 46361, August
                                        inapplicable to commercial items, to                    sections 16.503 and 16.504, as amended                17, 2007. This final rule implements the
                                        clarify that the existing regulations at                by this rule, are applicable to single                Presidential $1 Coin Act of 2005 (Pub.
                                        FAR 28.106–4, Contract clause, and                      award task or delivery order contracts                L. 109–145). The Presidential $1 Coin
                                        52.228–12, Prospective Subcontractor                    awarded on or after May 27, 2008. FAR                 Act of 2005 requires the Secretary of the
                                        Requests for Bonds, do not apply to                     section 16.505, as amended by this rule,              Treasury to mint and issue annually
                                        commercial items. Section 806(a)(3) of                  is applicable to orders awarded on or                 four new $1 coins bearing the likenesses
                                        Pub. L. 102–190, as amended by                          after May 27, 2008 on existing contracts              of the Presidents of the United States in
                                        Sections 2091 and 8105 of Pub. L. 103–                  as well as new contracts.                             the order of their service and to
                                        355 will be included in the list at FAR                                                                       continue to mint and issue ‘‘Sacagawea-
                                        12.503(a) and 12.504(a).                                Item X—Online Representations and
                                                                                                Certifications Application Review (FAR                design’’ coins for circulation. In order to
                                        Item VIII—Extension of Authority for                    Case 2006–025)                                        promote circulation of the coins,
                                        Use of Simplified Acquisition                                                                                 Section 104 of the Public Law also
                                                                                                   This final rule adopts as final, without
                                        Procedures for Certain Commercial                                                                             requires that Federal agencies take
                                                                                                change, the interim rule published in
                                        Items (FAR Case 2008–002)                                                                                     action so that, by January 1, 2008,
                                                                                                the Federal Register at 72 FR 46359,
                                           This final rule amends the Federal                   August 17, 2007. The rule amends FAR                  entities that operate any business,
                                        Acquisition Regulation to implement                     23.406 and 23.906 to revise the                       including vending machines, on any
                                        Section 822 of the National Defense                     prescriptions for the use of 52.223–9                 premises owned by the United States or
                                        Authorization Act for Fiscal Year 2008                  and 52.223–14 to provide for their use                under the control of any agency or
                                        (Pub. L. 110–181). Section 822 amends                   under the same circumstances as the                   instrumentality of the United States, are
                                        Section 4202(e) of the Clinger-Cohen                    prescription for use of their associated              capable of accepting and dispensing $1
                                        Act of 1996 (division D of Pub. L. 104–                 provisions. These revisions ensure                    coins and that the entities display
                                        106; 110 Stat. 652; 10 U.S.C. 2304 note)                compliance with the requirements of 40                notices of this capability on the business
                                        by extending until January 1, 2010, the                 CFR part 247 and 42 U.S.C. 11023.                     premises. Pub. L. 110–147 was enacted
                                        timeframe in which an agency may use                                                                          to amend Section 5112(p)(1)(A) of Title
                                        simplified procedures to purchase                       Item XI—Cost Accounting Standards                     31, United States Code, to allow an
                                        commercial items in amounts greater                     (CAS) Administration and Associated
                                                                                                                                                      exception from the $1 coin dispensing
                                        than the simplified acquisition                         Federal Acquisition Regulation Clauses
                                                                                                                                                      capability requirement for those
                                        threshold, but not exceeding $5,500,000                 (FAR Case 2007–002) (Interim)
                                                                                                                                                      vending machines that do not receive
                                        ($11 million for acquisitions as                           The subject case is revising the                   currency denominations greater than $1.
                                        described in 13.500(e)).                                Federal Acquisition Regulation (FAR)                  Contracting officers have been
                                                                                                clauses concerning the administration of              instructed in the Applicability Date of
                                        Item IX—Enhanced Competition for
                                                                                                Cost Accounting Standards (CAS) to                    the preamble to modify contracts upon
                                        Task and Delivery Order Contracts—
                                                                                                maintain consistency between the CAS                  request of the contractor, to change the
                                        Section 843 of the Fiscal Year 2008
                                                                                                rules and the FAR.                                    older version of the clause to the newer
                                        National Defense Authorization Act
                                        (FAR Case 2008–006) (Interim)                           Item XII—CAS Administration (FAR                      version without requiring consideration
                                           This interim rule amends Federal                     Case 2006–004)                                        from the contractor.
                                        Acquisition Regulation Subpart 16.5 to                     This final rule adopts, with minor                 Item XIV—Technical Amendments
                                        implement Section 843 of the Fiscal                     changes, the proposed rule published in
                                        Year 2008 National Defense                              the Federal Register at 71 FR 58338,                    Editorial changes are made at FAR
                                        Authorization Act (Pub. L. 110–181).                    October 3, 2006, amending the Federal                 15.404–1 and 52.212–5.
                                        The provisions of Section 843 include:                  Acquisition Regulation to implement                     Dated: September 9, 2008
                                        (1) Limitation on single award task or                  revisions to the regulations related to
                                                                                                                                                      Al Matera,
                                        delivery order (Indefinite-Delivery                     the administration of the Cost
                                        Requirements, and Indefinite-Quantity)                  Accounting Standards as they pertain to               Director, Office of Acquisition Policy.
                                        type contracts greater than $100 million;               contracts with foreign concerns,                      [FR Doc. E8–21370 Filed 9–16–08; 8:45 am]
                                        (2) Enhanced competition for task and                   including United Kingdom concerns.                    BILLING CODE 6820–EP–S
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