[Federal Register Volume 78, Number 144 (Friday, July 26, 2013)]
[Notices]
[Pages 45198-45200]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-17939]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
[Docket 2012-0076; Sequence 47; OMB Control No. 9000-0091]
Federal Acquisition Regulation; Submission for OMB Review; Anti-
Kickback Procedures
AGENCY: Department of Defense (DOD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Notice of request for public comments regarding an extension of
an existing OMB clearance.
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SUMMARY: Under the provisions of the Paperwork Reduction Act, the
Regulatory Secretariat will be submitting to the Office of Management
and Budget (OMB) a request to review and approve an extension of a
previously approved information collection requirement concerning anti-
kickback procedures. A notice was published in the Federal Register at
77 FR 75164, on December 19, 2012. One respondent submitted comments.
DATES: Submit comments on or before August 26, 2013.
ADDRESSES: Submit comments identified by Information Collection 9000-
0091, Anti-Kickback Procedures, by any of the following methods:
Regulations.gov: http://www.regulations.gov.
Submit comments via the Federal eRulemaking portal by searching the
OMB control number. Select the link ``Submit a Comment'' that
corresponds with ``Information Collection 9000-0091, Anti-Kickback
Procedures''. Follow the instructions provided at the ``Submit a
Comment'' screen. Please include your name, company name (if any), and
``Information Collection 9000-0091, Anti-Kickback Procedures'' on your
attached document.
Fax: 202-501-4067.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), 1800 F Street Street NW., Washington, DC 20405-
0001. ATTN: Hada Flowers/IC 9000-0091, Anti-Kickback Procedures.
Instructions: Please submit comments only and cite Information
Collection 9000-0091, Anti-Kickback Procedures, in all correspondence
related to this collection. 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: Ms. Cecelia L. Davis, Procurement
Analyst, Office of Governmentwide Acquisition Policy, GSA, (202) 219-
0202 or email [email protected].
SUPPLEMENTARY INFORMATION:
A. Purpose
Federal Acquisition Regulation (FAR) 52.203-7, Anti-Kickback
Procedures, requires that all contractors have in place and follow
reasonable procedures designed to prevent and detect in its own
operations and direct business relationships, violations of 41 U.S.C.
chapter 87, Kickbacks. Whenever prime contractors or subcontractors
have reasonable grounds to believe that a violation of the statute may
have occurred, they are required to report the possible violation in
writing to the contracting agency inspector general, the head of the
contracting agency if an agency does not have an inspector general, or
the Department of Justice. The information is used to determine if any
violations of the statute have occurred.
There is no Governmentwide data collection process or system which
identifies the number of alleged violations of 41 U.S.C. chapter 87,
Kickbacks that are reported annually to agency inspectors general, the
heads of the contracting agency if an agency does not have an inspector
general, or the Department of Justice.
B. Discussion and Analysis
The analysis of the public comment is summarized as follows:
Comment: The respondent commented that the extension of the
information collection would violate the fundamental purposes of the
Paperwork Reduction Act because of the burden it puts on the entity
submitting the information and the agency collecting the information.
Response: In accordance with the Paperwork Reduction Act (PRA),
agencies can request OMB approval of an existing information
collection. The PRA requires that agencies use the Federal Register
notice and comment process, to extend OMB's approval, at least every
three years. This extension, to a previously approved information
collection, pertains to the requirements at FAR 52.203-7((c)(2), which
requires contractors and subcontractors to promptly report possible
violations of the Kickbacks statute to the Government. There are no
aspects of this requirement that can be reduced or eliminated without
negatively
[[Page 45199]]
impacting the ability of the Government to assess contractor
responsibility, investigate and address potential criminal actions, and
protect the Government's interests in maintaining the integrity of the
acquisition process. Not granting this extension would consequently
eliminate a FAR clause that provides a benefit to the public and the
agency collecting the information.
Comment: The respondent commented that the agency did not
accurately estimate the public burden, stating that the agency's
methodology for calculating the burden is insufficient and inadequate
and does not reflect the total burden. The respondent stated that--
The actual number of respondents subject to the
information collection is likely 25 to 50 times greater than the
estimate of 100 respondents (i.e., 2500 to 5000);
There is no basis provided for the estimate of 1 response
per respondent; and
The estimate of 1 hour per response is unreasonably low
and unsubstantiated. The estimated burden hours should be modified in
this instance for the same reasons that they were modified upward in
FAR Case 2007-006, Contractor Business Ethics Compliance Program and
Disclosure Requirements.
Response: It is important to distinguish between the total burden
of compliance with a particular provision or clause, and the portion of
that burden that constitutes an information collection requirement.
This analysis addresses the latter. In this particular case, the
information collection requirement is in paragraph (c)(2) of 52.203-7,
which requires a report of possible violations to the Government.
Establishing procedures within an organization to prevent and detect
anti-kickback violations or cooperating with a Federal investigation do
not constitute information collection requirements.
Therefore, the only contractors and subcontractors included in the
estimate of respondents to the information collection requirement are
those contractors or subcontractors that are reporting a suspected
violation of the Kickback statute in a given year. Based on discussions
with subject matter experts with experience in an Office of the
Inspector General, the estimate of 100 responses per year more than
likely exceeds the actual responses. It is also unlikely, that the same
respondent would be reporting instances of kickback violations more
than once in a year. The estimated number of respondents and responses
remain as previously approved.
With regard to the estimated information collection burden hours,
as stated in the Federal Register notice for FAR Case 2007-006, burden
includes estimated hours only for those actions which a company would
not undertake in the normal course of business. In the normal course of
business, a company that is concerned about ethical behavior will take
reasonable steps to determine the credibility of allegations of
misconduct within the firm. It is left to the discretion of the company
what these reasonable steps may entail. The Government has added the
requirement to report in writing to the Government when the Contractor
has reasonable grounds to believe that a violation of the Kickback
statute has occurred, which would not necessarily otherwise occur. The
burden is prepared taking into consideration the necessary criteria in
OMB guidance for estimating the paperwork burden put on the entity
submitting the information. For example, consideration is given to an
entity reviewing instructions; using technology to collect, process,
and disclose information; adjusting existing practices to comply with
requirements; searching data sources; completing and reviewing the
response; and transmitting or disclosing information. The estimated
burden hours for a collection are based on an average between the hours
that a simple disclosure by a very small business might require and the
much higher numbers that might be required for a very complex
disclosure by a major corporation. Careful consideration went into
assessing the burden for this collection. However, upon further
discussion with subject matter experts, we have revised upward the
estimated hours to 20 hours per response, considering particularly the
hours that would be required for review within the company, prior to
release to the Government. At any point, members of the public may
submit comments for further consideration, and are encouraged to
provide data to support their request for an adjustment.
Comment: The respondent stated that the agency and OMB should
assess the need to extend this information collection requirement in
the context of assessing the total information collection burden. The
respondent further commented that the ``collective burden of
compliance'' required of the Government acquisition community annually
totals over 30 million hours. According to the respondent, the
collective burden greatly exceeds the agency's estimates and outweighs
any potential utility of the extension.
Response: The criteria for extension of an information collection
requirement must be based primarily on the need and use for the
required information. It is essential for contractors to report
violations of the Kickback statute, regardless of whether there are 100
responses per year or 1000 responses per year. If the agencies have
determined that the information is essential to comply with statute or
to protect the interests of the Government, then the extension should
be approved. If there are questions concerning the validity of the
estimated burden hours, those can be reviewed and refined as necessary.
We cannot effectively address the broad allegations with regard to
the accuracy and utility of the entire collective burden imposed on all
Federal acquisitions. We can only effectively address each individual
information collection requirement that is under consideration for OMB
approval. As stated, the respondent has not pointed out any aspect of
the Anti-Kickback clause that could be amended to reduce the
information collection burden imposed by that clause. Further, the
respondent specifically does not challenge the propriety of the
underlying information collection requirement. We constantly review
information collection requirements imposed by FAR regulations for ways
to reduce the burdens and still achieve the objectives of the
regulations, whether based on policy or statute. We would welcome any
specific recommendations as to information collection requirements
(other than those required by statute) in which the burden is perceived
to outweigh the benefit, with specific recommendations as to how the
burden should be reduced.
C. Annual Reporting Burden
Respondents: 100.
Responses per Respondent: 1.
Annual Responses: 100.
Hours Per Response: 20.
Total Burden Hours: 2,000.
Obtaining Copies of Proposals: Requesters may obtain a copy of the
information collection documents from the General Services
Administration, Regulatory Secretariat (MVCB), 1800 F Street Street,
NW., Washington, DC 20405-0001, telephone (202) 501-4755. Please cite
OMB Control No. 9000-0091, Anti-Kickback Procedures, in all
correspondence.
[[Page 45200]]
Dated: July 18, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2013-17939 Filed 7-25-13; 8:45 am]
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