[Federal Register Volume 78, Number 158 (Thursday, August 15, 2013)]
[Rules and Regulations]
[Pages 49697-49698]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-19855]
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DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT
48 CFR Part 2409
[Docket No FR-5571-F-03]
RIN 2501-AD56
HUD Acquisition Regulations (HUDAR): Correcting Amendment
AGENCY: Office of the Chief Procurement Officer, HUD.
ACTION: Final rule; Correcting amendment.
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SUMMARY: On December 10, 2012, HUD published a final rule that amended
the HUDAR to implement miscellaneous changes, which included, for
example, removing obsolete and redundant provisions, updating
provisions that address the organizational structure of HUD, and adding
provisions on contractor record retention. In making the organizational
changes specified in the preamble of the December 10, 2012, final rule
and the March 16, 2012, proposed rule, HUD inadvertently omitted moving
to the new regulatory structure the clause that clarifies that policies
and procedures concerning debarment and suspension for nonprocurement
contracts also apply to procurement contracts. This final rule corrects
that amendment.
DATES: Effective: August 15, 2013, and is applicable beginning January
9, 2013.
FOR FURTHER INFORMATION CONTACT: For information about this technical
correction, please contact Camille E. Acevedo, Associate General
Counsel for Legislation and Regulations, Office of General Counsel,
Department of Housing and Urban Development, 451 7th Street SW.,
Washington, DC 20410; telephone number 202-708-1793 (this is not a
toll-free number). Persons with hearing or speech impairments may
access Mr. Blocker's telephone number via TTY by calling the toll-free
Federal Relay Service at 800-877-8339.
SUPPLEMENTARY INFORMATION:
I. Background
The uniform regulation for the procurement of supplies and services
by federal departments and agencies, the Federal Acquisition Regulation
(FAR), was promulgated on September 19, 1983 (48 FR 42102). The FAR is
codified in title 48, chapter 1, of the Code of Federal Regulations.
HUD promulgated its regulation to implement the FAR on March 1, 1984
(49 FR 7696). The HUDAR (title 48, chapter 24 of the Code of Federal
Regulations) is prescribed under section 7(d) of the Department of HUD
Act (42 U.S.C. 3535(d)); section 205(c) of the Federal Property and
Administrative Services Act of 1949 (40 U.S.C. 121(c)); and the general
authorization in FAR 1.301.
II. 2012 HUD Amendments
HUDAR was last revised by final rule published on December 10, 2012
(77 FR 73524). The December 10, 2012, final rule was preceded by a
March 16, 2012 (77 FR 15681), proposed rule that announced that the
purpose of the 2012 rulemaking was to implement various miscellaneous
and nonsubstantive amendments to the HUDAR. The preamble to the March
16, 2012, proposed rule described amendments that would correct the
location of various HUDAR provisions through redesignation and
corrected citations.
One of the amendments described in the March 16, 2012, proposed
rule was to move 48 CFR 2409.7001 to its new location, 48 CFR 2409.470.
Section 2409.7001, entitled ``HUD's Regulations on Debarment and
Suspension, and Ineligibility'', read as follows: ``HUD's policies and
procedures concerning debarment and suspension are contained in 2 CFR
parts 180 and 2424 and, notwithstanding 2 CFR 180.220(a)(1), apply to
procurement contracts.'' The preamble to the March 16, 2012, proposed
rule stated that: ``The content of current 2409.7001 is proposed to be
moved to the new 2409.470 with the same title, to more accurately
correspond to the FAR and would be revised to correct the Code of
Federal Regulations citation. Current subpart 2409.70 would be
accordingly removed, as 2409.7001 was the only section in that
subpart.'' (See 77 FR 15683.) The correction of the citation was to
remove the references to 2 CFR part 180, which is now unnecessary as it
is included by cross-reference in 2 CFR 2424.10 and elsewhere. Other
than relocation and correction of the citation, no substantive change
was proposed to section 2409.7001. However, in the published rule text,
the portion after the legal citation to 2 CFR part 2424 was
inadvertently dropped.
The preamble to the December 10, 2012, final rule advised that it
was implementing without change the amendments proposed by the March
16, 2012, rule, and described a few nonsubstantive amendments made that
were inadvertently omitted in the March 16, 2012, proposed rule.
Unfortunately, the March 16, 2012 proposed rule also inadvertently
omitted the full content of prior regulatory section 2409.7001 that was
supposed to be moved, without substantive change, to 2409.470, and the
December 10, 2012 final rule repeated that error.
III. This Correcting Amendment Rule
This final rule corrects this error and restores the full content
of Sec. 2409.7001 to new Sec. 2409.470 with a corrected legal
citation. The 2012 rulemaking makes clear that no significant
substantive changes were being made to the HUDAR. The error did not
change the applicability of debarment and suspension rules to
procurements. To remove the applicability of HUD's debarment and
suspension policies and procedures to procurement contracts, which
policies and procedures have been applied to procurement contracts to
date and for many years previously, would have made the 2012 rulemaking
a highly significant rule, and HUD would have been required to provide
advance notice and solicit comment on this change. Additionally,
however, and of equal or more importance is that HUD has no authority
to exempt procurement contracts from debarment and suspension policies
and procedures. The Federal Acquisition Regulation (FAR) requires
debarment and suspension policies and procedures to be applied to
procurement contracts. In the absence of an agency specifying its own
debarment and suspension policies
[[Page 49698]]
and procedures, those of the FAR apply. (See 48 CFR 1.1 and 48 CFR part
9, subpart 9.4). The language in HUD's HUDAR regulations previously in
48 CFR 2409.7001 has always only been a clarification that HUD's
debarment and suspension policies and procedures apply both to
procurement and nonprocurement contracts. Indeed, HUD's 2007 debarment
and suspension rule noted that Sec. 2409.7001 did not impose any
additional requirements but was a regulatory clarification of
longstanding HUD policy of many years (72 FR 61270, October 29, 2007).
List of Subjects in 48 CFR Part 2409
Government procurement.
Accordingly, for the reasons described in the preamble, 48 CFR part
2409 is amended as follows:
PART 2409--CONTRACTOR QUALIFICATIONS
0
1. The authority citation for part 2409 continues to read as follows:
Authority: 40 U.S.C. 121(c); 42 U.S.C. 3535(d).
0
2. Revise Sec. 2409.470 to read as follows:
Sec. 2409.470 HUD regulations on debarment, suspension, and
ineligibility.
HUD's policies and procedures concerning debarment and suspension
are contained in 2 CFR part 2424, and, notwithstanding any language to
the contrary, apply to procurement contracts.
Dated: August 9, 2013.
Jemine A. Bryon,
Chief Procurement Officer.
[FR Doc. 2013-19855 Filed 8-14-13; 8:45 am]
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