[Federal Register Volume 72, Number 61 (Friday, March 30, 2007)]
[Proposed Rules]
[Pages 15093-15094]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 07-1558]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 9 and 52

[FAR Case 2006-011; Docket 200-0001; Sequence 6]
RIN 9000-AK73


Federal Acquisition Regulation; FAR Case 2006-011, 
Representations and Certifications - Tax Delinquency

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 change the provision regarding 
certification regarding debarment, suspension, proposed debarment, and 
other responsibility matters, and to make changes to the language 
regarding contractor qualifications, to add language regarding 
nonpayment of taxes. This proposed rule requires offerors to also 
certify whether or not they have, within a three-year period preceding 
the offer, been convicted of or had a civil judgment rendered against 
them for violating any tax law or failing to pay any tax, or been 
notified of any delinquent taxes for which the liability remains 
unsatisfied. In addition, the offeror will be required to certify 
whether or not they have received a notice of a tax lien filed against 
them for which the liability remains unsatisfied or the lien has not 
been released.

DATES:  Interested parties should submit written comments to the FAR 
Secretariat on or before May 29, 2007 to be considered in the 
formulation of a final rule.

ADDRESSES:  Submit comments identified by FAR case 2006-011 by any of 
the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Search for any document by first selecting the proper document types 
and selecting ``Federal Acquisition Regulation'' as the agency of 
choice. At the ``Keyword'' prompt, type in the FAR case number (for 
example, FAR Case 2006-001) and click on the ``Submit'' button. Please 
include any personal and/or business information inside the 
document.You may also search for any document by clicking on the 
``''Advanced search/document search'' tab at the top of the screen, 
selecting from the agency field ``Federal Acquisition Regulation '', 
and typing the FAR case number in the keyword field. Select the 
``Submit'' button.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann 
Duarte, Washington, DC 20405.
    Instructions: Please submit comments only and cite FAR case 2006-
011 in all correspondence related to this case. All comments received 
will be posted without change to http://www.regulations.gov, including 
any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:  Mr. William Clark, Procurement 
Analyst, at (202) 219-1813 for clarification of content. For 
information pertaining to status or publication schedules, contact the 
FAR Secretariat at (202) 501-4755. Please cite FAR case 2006-011.

SUPPLEMENTARY INFORMATION:

A. Background

    Offerors are currently required to certify whether or not, within a 
three-year period preceding an offer, they have been convicted of or 
had a civil judgment rendered against them for tax evasion or are 
presently indicted for, or otherwise criminally or civilly charged 
with, the commission of tax evasion. This proposed rule requires 
offerors to also certify whether or not they have, within a three-year 
period preceding the offer, been convicted of or had a civil judgment 
rendered against them for violating any tax law or failing to pay any 
tax, or been notified of any delinquent taxes for which the liability 
remains unsatisfied. The offeror also will be required to certify 
whether or not they have received a notice of a tax lien filed against 
them for which the liability remains unsatisfied or the lien has not 
been released. The additional certifications are needed to identify 
prospective offerors that may have outstanding tax obligations that may 
be delinquent so that the Government can make an informed 
responsibility determination, as necessary. If an offeror certifies 
that any of these conditions exist, the contracting officer may ask the 
offeror for additional information related to the obligation to 
evaluate the offeror's ability to perform under the contract. In 
accordance with FAR 1.107,

[[Page 15094]]

the new certification must be approved by the Administrator for the 
Office of Federal Procurement Policy before a final rule can be issued.
    In FAR 9.105-1 a cross reference is made to FAR 9.408 which 
describes additional actions contracting officers may take. In FAR 
9.408 the language referring to the certifications at FAR 52.209-5 and 
52.212-3 is simplified. In FAR 9.406-2 and 9.407-2, the following 
additional causes for debarment or suspension are added: delinquent 
taxes; unresolved tax liens; and a conviction of or civil judgment for 
violating tax laws or failing to pay taxes. The nonpayment of taxes is 
not restricted to Federal taxes, but may relate to any taxing entity. 
The focus of ``delinquent taxes'' is on taxes which are still unpaid: 
the affirmative certification is required after the taxpaying offeror 
is notified that the taxes are delinquent, for taxes which remain 
unpaid as of the date of certification.
    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 most prospective offerors pay their tax liabilities.
    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 Parts 9 and 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 2006-011), 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 Parts 9 and 52

    Government procurement.

    Dated: March 26, 2007.
Ralph De Stefano,
Director, Contract Policy Division.
    Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 9 and 
52 as set forth below:
    1. The authority citation for 48 CFR parts 9 and 52 continues to 
read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 9--CONTRACTOR QUALIFICATIONS


9.105-1   [Amended]

    2. Amend section 9.105-1 in paragraph (c)(3) by adding ``(including 
the certification at 52.209-5 or 52.212-3(h)--see 9.408)'' after 
``proposal information,''.
    3. Amend section 9.406-2 in paragraph (a)(3) by adding ``violating 
tax laws, failing to pay taxes,'' after ``tax evasion,'' and by adding 
paragraph (b)(1)(v) to read as follows:


9.406-2  Causes for debarment.

* * * * *
    (b)(1) * * *
    (v) Delinquent taxes or unresolved tax liens.
* * * * *
    4. Amend section 9.407-2 paragraph (a)(3) by adding ``violating tax 
laws, failing to pay taxes,'' after ``tax evasion,''; redesignating 
paragraph (a)(7) as paragraph (a)(8) and by adding new paragraph 
(a)(7); to read as follows:


9.407-2  [Amended]

    (a) * * *
    (7) Delinquent taxes or unresolved tax liens.
* * * * *
    5. Amend section 9.408 by revising the introductory text of 
paragraph (a) to read as follows:


9.408  Certification regarding debarment, suspension, proposed 
debarment, and other responsibility matters.

    (a) When an offeror provides an affirmative response in paragraph 
(a)(1) of provision 52.209-5 or paragraph (h) of provision 52.212-3, 
(e.g., indictment, conviction, debarment), the contracting officer 
shall--
* * * * *

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    6. Amend section 52.209-5 by--
    a. Revising the date of the clause;
    b. Adding to paragraph (a)(1)(i)(B) ``violating tax laws, failing 
to pay taxes,'' after ``tax evasion,''; and by removing ``and'' from 
the end of the paragraph;
    c. Removing the period from the end of paragraph (a)(1)(i)(C) and 
adding a semicolon in its place; and
    d. Adding paragraphs (a)(1)(i)(D)and (a)(1)(i)(E).
    The revised and added text read as follows:


52.209-5  Certification Regarding Debarment, Suspension, Proposed 
Debarment, and Other Responsibility Matters.

* * * * *

CERTIFICATION REGARDING DEBARMENT, SUSPENSION, PROPOSED DEBARMENT, AND 
OTHER RESPONSIBILITY MATTERS (DATE)

    (a)(1) * * *
    (i) * * *
    (D) Have [square] have not [square], within a three-year period 
preceding this offer, been notified of any delinquent taxes for which 
the liability remains unsatisfied; and
    (E) Have [square] have not [square] received notice of a tax lien 
filed against them for which the liability remains unsatisfied or the 
lien has not been released.
* * * * *
    7. Amend section 52.212-3 by--
    a. Revising the date of the clause;
    b. Adding to paragraph (h)(2) ``violating tax laws, failing to pay 
taxes'', after ``tax evasion''; and
    c. Adding paragraphs (h)(4) and (h)(5).
    The revised and added text read as follows:


52.212-3  Offeror Representations and Certifications-Commercial Items.

* * * * *

OFFEROR REPRESENTATIONS AND CERTIFICATIONS-COMMERCIAL ITEMS (DATE)

* * * * *
    (h) * * *
    (4) [square] Have [square] have not, within a three-year period 
preceeding this offer, been notified of any delinquent taxes for which 
the liability remains unsatisfied; and
    (5) [square] Have [square] have not received notice of a tax lien 
filed against them for which the liability remains unsatisfied or the 
lien has not been released.
* * * * *
[FR Doc. 07-1558 Filed 3-29-07; 8:45 am]
BILLING CODE 6820-EP-S