[Federal Register Volume 67, Number 54 (Wednesday, March 20, 2002)]
[Proposed Rules]
[Pages 13076-13077]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 02-6514]



[[Page 13075]]

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Part IV





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Part 52



Federal Acquisition Regulation; Contract Terms and Conditions Required 
To Implement Statute or Executive Orders--Commercial Items; Proposed 
Rule

Federal Register / Vol. 67, No. 54 / Wednesday, March 20, 2002 / 
Proposed Rules

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 52

[FAR Case 2000-009]
RIN 9000-AJ34


Federal Acquisition Regulation; Contract Terms and Conditions 
Required To Implement Statute or Executive Orders--Commercial Items

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

ACTION: Proposed rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) are proposing to amend the 
Federal Acquisition Regulation (FAR) to update the clause regarding 
contract terms and conditions required to implement statute or 
Executive orders--commercial items.

DATES: Interested parties should submit comments in writing on or 
before May 20, 2002 to be considered in the formulation of a final 
rule.

ADDRESSES: Submit written comments to: General Services Administration, 
FAR Secretariat (MVP), 1800 F Street, NW. Room 4035, ATTN: Laurie 
Duarte, Washington, DC 20405.
    Submit electronic comments via the Internet to: farcase.2000-
009@gsa.gov. Please submit comments only and cite FAR case 2000-009 in 
all correspondence related to this case.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC., 20405, at (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Ms. Victoria Moss, Procurement Analyst, at (202) 501-
4764. Please cite FAR case 2000-009.

SUPPLEMENTARY INFORMATION:

A. Background

    Federal Acquisition Regulation Part 12, Acquisition of Commercial 
Items, was developed to implement Title VIII of the Federal Acquisition 
Streamlining Act of 1994 (FASA) (Pub. L. 103-355). The regulations 
became effective on October 1, 1995. Several areas have been identified 
that need updating and clarification. This rule addresses some of those 
changes.
    The list of contract terms and conditions required to implement 
statutes or Executive orders in the clause at FAR 52.212-5 is amended 
to ensure that required statutes enacted subsequent to FASA that 
contain civil or criminal penalties or specifically cite their 
applicability to commercial items are included on the list, and to 
ensure that any post-FASA items that did not meet this criteria are 
deleted from the list. In addition, the pre-FASA clauses and alternates 
that were inadvertently left off the list are added. The date of each 
clause is added to the list to identify what revision of the listed 
clause applies when this clause is added to a contract.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Councils do not expect this proposed rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, 5 U.S.C. 601, et seq., 
because the rule merely clarifies existing language and does not change 
existing policy. An Initial Regulatory Flexibility Analysis has, 
therefore, not been performed. We invite comments from small businesses 
and other interested parties. The Councils will consider comments from 
small entities concerning the affected FAR Part 52 in accordance with 5 
U.S.C. 610. Interested parties must submit such comments separately and 
should cite 5 U.S.C. 601, et seq. (FAR case 2000-009), in 
correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose information collection requirements 
that require the approval of the Office of Management and Budget under 
44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 52

    Government procurement.

    Dated: March 13, 2002.
Al Matera,
Director, Acquisition Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR part 52 set 
forth below:

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    1. The authority citation for 48 CFR part 52 continues to read as 
follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Amend section 52.212-5 by revising the date of the clause and 
paragraphs (a), (b), (c), and (e) to read as follows:


52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders--Commercial Items.

* * * * *

Contract Terms and Conditions Required To Implement Statutes or 
Executive Orders Commercial Items (Date)

    (a) The Contractor agrees to comply with the following Federal 
Acquisition Regulation (FAR) clause, which is incorporated in this 
contract by reference, to implement provisions of law or Executive 
orders applicable to acquisitions of commercial items: 52.233-3, 
Protest After Award (AUG 1996) (31 U.S.C. 3553).
    (b) The Contractor agrees to comply with the FAR clauses in this 
paragraph (b) that the Contracting Officer has indicated as being 
incorporated in this contract by reference to implement provisions 
of law or Executive orders applicable to acquisitions of commercial 
items:

[Contracting Officer check as appropriate.]

__ (1) 52.203-6, Restrictions on Subcontractor Sales to the 
Government (Jul 1995), with Alternate I (Oct 1995) (41 U.S.C. 253g 
and 10 U.S.C. 2402).
__ (2) 52.219-3, Notice of Total HUBZone Set-Aside (Jan 1999) (15 
U.S.C. 657a).
__ (3) 52.219-4, Notice of Price Evaluation Preference for HUBZone 
Small Business Concerns (Jan 1999) (if the offeror elects to waive 
the preference, it shall so indicate in its offer) (15 U.S.C. 657a).
__ (4)(i) 52.219-5, Very Small Business Set-Aside (Mar 1999) (Pub. 
L. 103-403, section 304, Small Business Reauthorization and 
Amendments Act of 1994).
__ (ii) Alternate I to 52.219-5 (Mar 1999).
__ (iii) Alternate II to 52.219-5 (Mar 1999).
__ (5)(i) 52.219-6, Notice of Total Small Business Set-Aside (Jul 
1996) (15 U.S.C. 644).
__ (ii) Alternate I to 52.219-6 (Oct 1995).
__ (6)(i) 52.219-7, Notice of Partial Small Business Set-Aside (Jul 
1996) (15 U.S.C. 644).
__ (ii) Alternate I to 52.219-7 (Oct 1995).
__ (7) 52.219-8, Utilization of Small Business Concerns (Oct 2000) 
(15 U.S.C. 637(d)(2) and (3)).
__ (8)(i) 52.219-9, Small Business Subcontracting Plan (Jan 2002) 
(15 U.S.C. 637(d)(4)).
__ (ii) Alternate I to 52.219-9 (Oct 2001).
__ (iii) Alternate II to 52.219-9 (Oct 2001).
__ (9) 52.219-14, Limitations on Subcontracting (Dec 1996) (15 
U.S.C. 637(a)(14)).
__ (10)(i) 52.219-23, Notice of Price Evaluation Adjustment for 
Small

[[Page 13077]]

Disadvantaged Business Concerns (May 2001) (Pub. L. 103-355, section 
7102, and 10 U.S.C. 2323) (if the offeror elects to waive the 
adjustment, it shall so indicate in its offer).
__ (ii) Alternate I to 52.219-23 (Oct 1998).
__ (11) 52.219-25, Small Disadvantaged Business Participation 
Program Disadvantaged Status and Reporting (Oct 1999) (Pub. L. 103-
355, section 7102, and 10 U.S.C. 2323).
__ (12) 52.219-26, Small Disadvantaged Business Participation 
Program Incentive Subcontracting (Oct 2000) (Pub. L. 103-355, 
section 7102, and 10 U.S.C. 2323).
__ (13) 52.222-3, Convict Labor (Aug 1996) (E.O. 11755).
__ (14) 52.222-19, Child Labor--Cooperation with Authorities and 
Remedies (Dec 2001) (E.O. 13126).
__ (15) 52.222-21, Prohibition of Segregated Facilities (Feb 1999).
__ (16) 52.222-26, Equal Opportunity (Feb 1999) (E.O. 11246).
__ (17) 52.222-35, Equal Opportunity for Special Disabled Veterans, 
Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001) 
(38 U.S.C. 4212).
__ (18) 52.222-36, Affirmative Action for Workers with Disabilities 
(Jun 1998) (29 U.S.C. 793).
__ (19) 52.222-37, Employment Reports on Special Disabled Veterans, 
Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001) 
(38 U.S.C. 4212).
__ (20)(i) 52.223-9, Estimate of Percentage of Recovered Material 
Content for EPA-Designated Products (Aug 2000) (42 U.S.C. 
6962(c)(3)(A)(ii)).
__ (ii) Alternate I to 52.223-9 (Aug 2000) (42 U.S.C. 
6962(i)(2)(C)).
__ (21) 52.225-1, Buy American Act--Balance of Payments Program--
Supplies (Feb 2002) (41 U.S.C. 10a-10d).
__ (22)(i) 52.225-3, Buy American Act--North American Free Trade 
Agreement--Israeli Trade Act--Balance of Payments Program (Feb 2002) 
(41 U.S.C. 10a-10d, 19 U.S.C. 3301 note, 19 U.S.C. 2112 note).
__ (ii) Alternate I to 52.225-3 (Feb 2000).
__ (iii) Alternate II to 52.225-3 (Feb 2000).
__ (23) 52.225-5, Trade Agreements (Feb 2002) (19 U.S.C. 2501, et 
seq., 19 U.S.C. 3301 note).
__ (24) 52.225-13, Restriction on Certain Foreign Purchases (Jul 
2000) (E.O. 12722, 12724, 13059, 13067, 13121, and 13129).
__ (25) 52.225-15, Sanctioned European Union Country End Products 
(Feb 2000) (E.O. 12849).
__ (26) 52.225-16, Sanctioned European Union Country Services (Feb 
2000) (E.O. 12849).
__ (27) 52.232-29, Terms for Financing of Purchases of Commercial 
Items (Feb 2002) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).
__ (28) 52.232-30, Installment Payments for Commercial Items (Oct 
1995) (41 U.S.C. 255(f), 10 U.S.C. 2307(f)).
__ (29) 52.232-33, Payment by Electronic Funds Transfer--Central 
Contractor Registration (May 1999) (31 U.S.C. 3332).
__ (30) 52.232-34, Payment by Electronic Funds Transfer Other than 
Central Contractor Registration (May 1999) (31 U.S.C. 3332).
__ (31) 52.232-36, Payment by Third Party (May 1999) (31 U.S.C. 
3332).
__ (32) 52.239-1, Privacy or Security Safeguards (Aug 1996) (5 
U.S.C. 552a).
__ (33)(i) 52.247-64, Preference for Privately Owned U.S.-Flag 
Commercial Vessels (Jun 2000) (46 U.S.C. Appx 1241).
__ (ii) Alternate I to 52.247-64 (Apr 1984).

    (c) The Contractor agrees to comply with the FAR clauses in this 
paragraph (c), applicable to commercial services, that the 
Contracting Officer has indicated as being incorporated in this 
contract by reference to implement provisions of law or Executive 
orders applicable to acquisitions of commercial items:

Contracting Officer check as appropriate.

__ (1) 52.222-41, Service Contract Act of 1965, as Amended (May 
1989) (41 U.S.C. 351, et seq.).
__ (2) 52.222-42, Statement of Equivalent Rates for Federal Hires 
(May 1989) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).
__ (3) 52.222-43, Fair Labor Standards Act and Service Contract 
Act--Price Adjustment (Multiple Year and Option Contracts) (May 
1989) (29 U.S.C. 206 and 41 U.S.C. 351, et seq.).
__ (4) 52.222-44, Fair Labor Standards Act and Service Contract 
Act--Price Adjustment (Feb 2002) (29 U.S.C. 206 and 41 U.S.C. 351, 
et seq.).
__ (5) 52.222-47, SCA Minimum Wages and Fringe Benefits Applicable 
to Successor Contract Pursuant to Predecessor Contractor Collective 
Bargaining Agreements (CBA) (May 1989) (41 U.S.C. 351, et seq.).
* * * * *
    (e) The following clauses must be included in subcontracts:
    (1) 52.219-8, Utilization of Small Business Concerns (Oct 2000) 
(15 U.S.C. 637(d)(2) and (3)), in all subcontracts that offer 
further subcontracting opportunities. If the subcontract (except 
subcontracts to small business concerns) exceeds $500,000 
($1,000,000 for construction of any public facility), the 
subcontractor must include 52.219-8 in lower tier subcontracts that 
offer subcontracting opportunities.
    (2) 52.222-26, Equal Opportunity (Feb 1999) (E.O. 11246).
    (3) 52.222-35, Equal Opportunity for Disabled Special Veterans, 
Veterans of the Vietnam Era, and Other Eligible Veterans (Dec 2001) 
(38 U.S.C. 4212(a)).
    (4) 52.222-36, Affirmative Action for Workers with Disabilities 
(Jun 1998) (29 U.S.C. 793).
    (5) 52.222-41, Service Contract Act of 1965, as Amended (May 
1989) (41 U.S.C. 351, et seq.).
    (6) 52.247-64, Preference for Privately Owned U.S.-Flag 
Commercial Vessels (Jun 2000) (46 U.S.C. Appx 1241) (flowdown not 
required for subcontracts awarded beginning May 1, 1996).
    While not required, a prime contractor may include in its 
subcontracts a minimal number of additional clauses necessary to 
satisfy its contractual obligations.
(End of clause)
* * * * *
[FR Doc. 02-6514 Filed 3-19-02; 8:45 am]
BILLING CODE 6820-EP-P