[Federal Register Volume 59, Number 47 (Thursday, March 10, 1994)]
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From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 94-4381]


[[Page Unknown]]

[Federal Register: March 10, 1994]


_______________________________________________________________________

Part II

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Part 1, et al.



Federal Acquisition Regulations; Final Rule
DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Federal Acquisition Circular 90-20]

 

Federal Acquisition Regulation; Introduction of Miscellaneous 
Amendments

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

ACTION: Summary of interim and final rules and corrections.

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

SUMMARY: This document introduces the documents, set forth below, which 
comprise Federal Acquisition Circular (FAC) 90-20. The Civilian Agency 
Acquisition Council and the Defense Acquisition Regulations Council are 
issuing FAC 90-20 to amend the Federal Acquisition Regulation (FAR) to 
implement changes in the following subject areas:

----------------------------------------------------------------------------------------------------------------
  Item                           Subject                             FAR case        DAR case        Analyst    
----------------------------------------------------------------------------------------------------------------
I.......  Section 6050M of the Tax Reform Act of 1986..........             91-52       91-007  Klein.          
II......  Made in America Labels and Unfair Trade Practices....            93-301  ...........  DeStefano.      
                                                                           93-306  ...........  DeStefano.      
III.....  Preference for Commercial Products...................             91-48       89-315  O'Neill.        
IV......  Increase in Cost or Pricing Data Threshold...........             91-53       90-303  Olson.          
V.......  Reimbursement, Interest Charges, and Penalties for          91-99/89-37       91-090  Olson.          
           Overpayment; Clarification.                                                                          
VI......  Clarify Increased Cost of Pricing Data Threshold.....             91-96       91-309  Olson.          
VII.....  Nonmanufacturer Rule.................................             91-50       90-335  O'Neill.        
VIII....  Small Business Competitiveness Demonstration Program.             91-97       91-065  Scott.          
IX......  Removal of Steel Conduit from the FAR Buy American               92-619  ...........  Klein.          
           Act Exemption List.                                                                                  
X.......  Buy American Act--Construction Materials.............             91-75       91-305  O'Such.         
XI......  Examination of Records...............................             92-47  ...........  O'Such.         
XII.....  Independent Research and Development and Bid and                 93-302  ...........  Olson.          
           Proposal Costs.                                                                                      
XIII....  Prompt Payment Overseas..............................             92-46  ...........  Olson.          
XIV.....  Federal Courts Administration Act....................      92-301/91-62  ...........  O'Neill.        
                                                                                        90-323                  
XV......  Defense Traffic Management Regulation................             92-53  ...........  Klein.          
XVI.....  Records of Plant Equipment...........................             91-73       91-019  Klein.          
XVII....  Reports of Government Property.......................             91-58       90-454  Klein.          
XVIII...  Returnable Cylinders.................................             91-10       90-457  Klein.          
XIX.....  Small Business Innovation Research Rights in Data....            93-305  ...........  O'Neill.        
XX......  Corrections and Technical Amendments.................  ................  ...........  ................
Notices.  Annual notice of Rates of Inflation..................  ................  ...........  Olson           
          Availability of the 1993 Consolidated Reprint of the                                                  
           FAR.                                                                                                 
----------------------------------------------------------------------------------------------------------------

DATES: For effective dates, see separate documents which appear 
elsewhere in this separate part. Please cite FAC 90-20 and the 
appropriate FAR case number(s) in all correspondence related to this 
and the following documents.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, room 4041, GS 
Building, Washington, DC 20405, (202) 501-4755. For specific 
information contact the analyst whose name appears in relation to each 
FAR case or subject area (see table under SUMMARY). Please cite FAC 90-
20 and applicable FAR case number(s).

SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-20 amends 
the Federal Acquisition Regulation (FAR) as specified below:

Item I--Section 6050M of the Tax Reform Act of 1986 (FAR Case 91-52)

    The interim rule published at 57 FR 44259 on September 24, 1992 
(FAC 90-13, Item I), is converted to a final rule with one change. FAR 
Subpart 4.9, Information Reporting to the Internal Revenue Service 
(IRS), and the clause at 52.204-3, Taxpayer Identification, have been 
revised to ensure the collection and reporting of the Taxpayer 
Identification Number (TIN) of certain contract modifications. The 
approved change is to the last sentence of 52.204-3(b). A 31 percent 
figure has replaced the previous 20 percent figure as a result of an 
amendment to 26 U.S.C. 3406(a)(1).

Item II--Made in America Labels (FAR Case 93-301) and Unfair Trade 
Practices (FAR Case 93-306)

    These interim rules add language to FAR 9.403, 9.406, and 9.407 
concerning suspension or debarment of contractors who engage in unfair 
trade practices and/or intentionally affixed a label bearing a ``Made 
in America'' inscription (or any inscription having the same meaning) 
to a product sold in or shipped to the United States.

Item III--Preference for Commercial Products (FAR Case 91-48)

    The interim rule published as Item V of FAC 90-9 is converted to a 
final rule. The interim rule amended section 10.001 and revised 
sections 10.002(d) and 10.006(a) to provide an order of preference for 
the various types of product descriptions used in contracting. The 
final rule differs from the interim rule in that (1) the Department of 
Defense (DOD) requirement for mandatory use of product descriptions 
listed in the DOD Index of Specifications and Standards, which was 
inadvertently omitted from the interim rule, is reinstated at 
10.006(a); (2) a new exception to the requirement for mandatory use of 
indexed product descriptions is added at 10.006(a)(6); and (3) 
editorial changes are made for clarification.

Item IV--Increase in Cost or Pricing Data Threshold (FAR Case 91-53)

    The interim rule published at 56 FR 67413, December 30, 1991 (FAC-
90-10, Item I), is confirmed as final without change. This rule amended 
the FAR to reflect an increase in the statutory threshold for 
submission of cost or pricing data from $100,000 to $500,000 for DOD, 
NASA, and the Coast Guard.

Item V--Reimbursement, Interest Charges, and Penalties for Overpayment; 
Clarification (FAR Case 91-99/89-37)

    This item clarifies Item 11 of FAC-90-3 (55 FR 52782, December 21, 
1990) regarding the application, to contract modifications, of the 
statutory and regulatory guidance on reimbursement, interest charges, 
and penalties for overpayment (FAR case 89-37). The word ``contracts'' 
in Item 11 includes control modifications.
    For DOD, NASA, and the Coast Guard, the statutory and regulatory 
guidance applies to: (1) Contracts awarded on or after November 8, 
1985; and (2) modifications issued on or after November 8, 1985, 
regardless of the date of contract award. For all other agencies, the 
regulatory guidance applies to contracts awarded and modifications 
issued after January 22, 1991.
    If a contract is modified and that modification requires the 
submission of certified cost or pricing data, the contract must be 
updated to incorporate the January 1991 version of the clause at FAR 
52.214-37, 52.215-22, or 52.215-23 for that modification. This updating 
is to ensure that the contract includes the requirement for interest on 
defective pricing reductions for modifications.

Item VI--Clarify Increased Cost or Pricing Data Threshold (FAR Case 91-
96)

    The interim rule published as Item X in FAC 90-16 is converted to a 
final rule without change. The interim rule revised FAR 15.804-2 to 
clarify application of the $500,000 threshold for submission of 
certified cost or pricing data for contracts awarded by the Department 
of Defense, the National Aeronautics and Space Administration, and the 
Coast Guard. This rule implements Section 804 of the FY 92 Defense 
Authorization Act, which amended 10 U.S.C. 2306a(a)(1) to specify that 
the $500,000 threshold for DOD, Coast Guard, and NASA, also applies to 
subcontracts entered into after December 5, 1991, under prime contracts 
entered into on or before December 5, 1990, if the prime contract is 
modified to incorporate the $500,000 threshold. It also specifies that 
the $500,000 threshold applies to changes or modifications made after 
December 5, 1991, when the prime contract is modified to incorporate 
the $500,000 threshold.

Item VII--Nonmanufacturer Rule (FAR Case 91-50)

    This converts the interim rule on the Nonmanufacturer Rule, 
published in the Federal Register at 57 FR 60571 on December 21, 1992, 
as Item XI of FAC 90-16, to a final rule with minor revisions. The 
interim rule implemented section 210 of Public Law 101-574. It revised 
FAR 19.001 and 19.102 to add a definition for the term 
``nonmanufacturer rule,'' to address Small Business Administration 
waiver of the nonmanufacturer rule for specific items, and to remove 
the partial listing of classes for which a waiver has been granted.

Item VIII--Small Business Competitiveness Demonstration Program (FAR 
Case 91-97)

    FAR 19.1001(b) and 19.1006(b)(1) are amended to extend the Small 
Business Competitiveness Demonstration Program through September 30, 
1996. FAR 19.1006(b)(1) is also amended to clarify procedures when an 
emerging small business (ESB) reserve amount is greater than $25,000. 
Section 19.1006(c)(1) is amended to delete the dollar threshold for the 
ESB reserve amount and substitute ``established by the Office of 
Federal Procurement Policy.'' Subparagraph (c)(1) (i) and (ii) have 
been added to clarify how to proceed when there is not a reasonable 
expectation of offers from two or more responsible ESB's or when it is 
necessary to cancel an ESB set-aside.

Item IX--Removal of Steel Conduit From the FAR Buy American Act 
Exemption List (FAR Case 92-619)

    Paragraph (d)(1) of 25.108, Excepted Articles, Materials, and 
Supplies, is being amended to remove steel conduit (5'' and 6'') from 
the FAR Buy American Act exemption list. Market research has uncovered 
two domestic sources for these products.

Item X--Buy American Act--Construction Materials (FAR Case 91-75)

    The interim rule published at 57 FR 20372, May 12, 1992, (FAC 90-
11, Item II) is confirmed as final without change. The interim rule 
amended FAR 25.201 and 52.225-5 to modify the definition of 
``construction material'' to require evaluation of an emergency life 
safety system as a single construction material under the Buy American 
Act, regardless of when and how the individual parts or components are 
delivered to the construction site. This rule implements section 631 of 
Public Law 102-141, Treasury, Postal Service and General Government 
Appropriations Act.

Item XI--Examination of Records (FAR Case 92-47) (Statutory)

    FAR 25.901(c) is revised to make the requirement for notification 
of Congress, when the clause at 52.215-1, Examination of Records by 
Comptroller General, is omitted from a contract with a foreign 
contractor, inapplicable to the Department of Defense.

Item XII--Independent Research and Development and Bid and Proposal 
Costs (FAR Case 93-302)

    FAR 31.205-18(c)(2)(iii)(A) is amended to insert a date certain 
with regard to waiving the limitation on the maximum allowable amount 
of independent research and development and bid and proposal costs for 
a major contractor in order to ensure that the amount determined to be 
allowable for such contractor is at least equal to what would have been 
allowed prior to the enactment of the National Defense Authorization 
Act for Fiscal Years 1992 and 1993 (Pub. L. 102-190).

Item XIII--Prompt Payment Overseas (FAR Case 92-46)

    This interim rule revises FAR 32.901 and amends the clauses at FAR 
52.232-25, 52.232-26, and 52.232-27 to remove the statements that no 
interest penalty will be paid on contracts awarded to foreign vendors 
outside the United States for work performed outside the United States 
and to remove the definition of ``foreign vendor'' from the clauses.

Item XIV--Federal Courts Administration Act (FAR Cases 92-301 and 91-
62)

    This interim rule amends FAR 33.201, 33.202, 33.204, 33.207, 
33.208, 33.210, 33.211, 33.214, 42.302, and the clause at 52.233-1 
concerning the certification of claims under the Contract Disputes Act 
(CDA). The rule implements section 907(a) of the Federal Courts 
Administration Act of 1992 (Pub. L. 102-572) which requires that the 
person certifying a CDA claim be duly authorized to bind the 
contractor; specifies the conditions under which a contracting officer 
does not have to issue a final decision; provides that certifications 
are not jurisdictional; further revises the existing alternative 
dispute resolution (ADR) coverage; and provides for payment of interest 
from the date of initial receipt of the claim or enactment of Public 
Law 102-572, whichever is later. (Pub. L. 102-572 was enacted on 
October 29, 1992.)

Item XV--Defense Traffic Management Regulation (FAR Case 92-53)

    FAR Subpart 42.14, Traffic and Transportation Management, is 
amended to update the title of the Defense Traffic Management 
Regulation and to add references to Military Departments and Defense 
Logistics Agency regulations concerning traffic and transportation 
management. Cross references at FAR 47.103(b)(2), 47.200(e), and 
47.305-6(f)(1)(ii) were also revised to update the title of the Defense 
Traffic Management Regulation. Cross references at 47.103(b)(2), 
47.200(e), and 47.305-6(f)(1)(ii) were also revised to update the title 
of the Defense Traffic Management Regulation.

Item XVI--Records of Plant Equipment (FAR Case 91-73)

    The FAR is being revised at 45.501, 45.505-1, 45.505-4, and 45.505-
5 to add language on the use of summary records and expand the use of 
summary records to special tooling and special test equipment costing 
less than $5,000.

Item XVII--Reports of Government Property (FAR Case 91-58)

    FAR 45.505-14, Reports of Government Property, is revised to 
require contractors to report annually all classifications of 
Government property in their possession. The FAR revision expands the 
list of property classifications to be reported to include special 
tooling, special test equipment, material and agency peculiar property. 
It deletes the dollar amounts for plant equipment.

Item XVIII--Returnable Cylinders (FAR Case 91-10)

    A clause, Returnable Cylinders, is added to the FAR at 52.247-66, 
and prescriptive language is added at 47.305-17. The clause describes 
the Government's responsibilities relating to the return and 
accountability of contractor-furnished returnable cylinders.

Item XIX--Small Business Innovation Research Rights in Data (FAR Case 
93-305)

    Paragraph (d) of the clause at FAR 52.227-20, Rights in Data--SBIR 
Program, is revised to increase the small business concern's data 
rights retention period from 2 to 4 years. This revision implements 
Section 15(f) of the revised SBIR Program Policy Directive, published 
by the SBA in the Federal Register on January 26, 1993 (58 FR 6144).

Item XX--Corrections and Technical Amendments

    Corrections and technical amendments have been made to FAR parts 1, 
3, 5, 15, 16, 19, 31, 42, 48, 52, and 53 for clarification, to correct 
references and terms. For the convenience of the user, Standard Forms 
254, 255, and Optional Form 333 are reprinted. Among the changes are 
the following:

Standard Forms 254 and 255

    Standard Form (SF) 254, Architect-Engineer and Related Services 
Questionnaire, and SF 255, Architect-Engineer and Related Services 
Questionnaire for Specific Project, which were revised and illustrated 
as Item XXIII in FAC 90-16 (57 FR 60570, December 21, 1992), are being 
republished in this FAC 90-20 to reflect the removal of the Office of 
Management and Budget's (OMB) date of expiration for clearance 
approvals and to reflect other minor typographic changes.

Optional Form 333

    Optional Form 333, Procurement Integrity Certification for 
Procurement Officials, is authorized for local reproduction 
indefinitely and the revised version is published here for the 
convenience of the user.

Annual Notice of Rates of Inflation

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council have agreed to publish, as an information item, the 
rates of inflation which are used in conjunction with other factors to 
determine the allowability of independent research and development and 
bid and proposal (IR&D/B&P) costs for major contractors under FAR 
31.205-18(c)(2)(i)(C)(2). These rates were issued by the Acting 
Comptroller of the Department of Defense in March 1993. FAR 31.205-
18(c)(2)(i)(C)(2) states the rates of inflation will be published in 
the Federal Register on an annual basis.
    Federal Acquisition Circular 90-13, FAR case 91-37, Item VII, 
published in the Federal Register at 57 FR 44264, September 24, 1992, 
provided rates of inflation which were to be used to determine the 
allowability of IR&D/B&P costs for major contractors during the 3-year 
transition period FY 1993 through 1995. FAR 31.205-18(c)(2)(i)(C)(2) 
states the rates of inflation will be published in the Federal Register 
on an annual basis. The following rates of inflation are effective 
immediately, supersede those published in the Federal Register at 57 FR 
44264, September 24, 1992, and shall remain in effect until superseded 
by the next publication:

------------------------------------------------------------------------
                                                                Annual  
                         Fiscal year                          percentage
                                                                 rate   
------------------------------------------------------------------------
1993........................................................        2.4 
1994........................................................        2.3 
1995........................................................        2.3 
1996........................................................        2.2 
------------------------------------------------------------------------

Availability of the 1993 Consolidated Reprint of the FAR

    The 1993 Consolidated Reprint of the FAR will be available after 
March 30, 1994. Circulars amending the 1990 edition of the FAR have 
been consolidated up through December 31, 1993; therefore, reprint 
users should immediately begin filing with FAC 90-19, which was issued 
January 5, 1994, and will be distributed to subscribers in March.
    For additional information, contact the FAR Secretariat at 202 501-
4755. For subscription and distribution information, contact the 
Superintendent of Documents at 202 512-2305.

    Dated: February 22, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 90-20 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
Administration.
    All Federal Acquisition Regulation (FAR) and other directive 
material contained in FAC 90-20 is effective May 9, 1994, except for 
Items I, II, III, IV, VI, VII, X, XIII, XIV, XIX, and XX which are 
effective May 9, 1994.

    Dated: November 30, 1993.
Eleanor R. Spector,
Director, Defense Procurement.

    Dated: November 9, 1993.
Richard H. Hopf III,
Associate Administrator for Acquisition Policy, General Services 
Administration.
    Dated: October 29, 1993.
Thomas S. Luedtke,
Acting Deputy Associate Administrator for Procurement, NASA.
[FR Doc. 94-4381 Filed 3-9-94; 8:45 am]
BILLING CODE 6820-34-M