[Federal Register Volume 62, Number 51 (Monday, March 17, 1997)]
[Rules and Regulations]
[Pages 12721-12722]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6324]


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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1


Federal Acquisition Regulation; Small Entity Compliance Guide

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

ACTION: Small entity compliance guide notice.

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SUMMARY: This document is issued under the joint authority of the 
Secretary of Defense, the Administrator of General Services and the 
Administrator for the National Aeronautics and Space Administration as 
the Federal Acquisition Regulation (FAR) Council. This Small Entity 
Compliance Guide has been prepared in accordance with Section 212 of 
the Small Business Regulatory Enforcement Fairness Act of 1996 (Public 
Law 104-121). It consists of a summary of rules appearing in Federal 
Acquisition Circular (FAC) 90-46 which amend the FAR. The rules marked 
with an asterisk (*) are those for which a regulatory flexibility 
analysis has been prepared in accordance with 5 U.S.C. 604. Further 
information regarding these rules may be obtained by referring to FAC 
90-46 which precedes this notice. This document may be obtained from 
the Internet at http://www.gsa.gov/far/SECG.

FOR FURTHER INFORMATION CONTACT: Beverly Fayson, FAR Secretariat, (202) 
501-4755.

                       List of Rules in FAC 90-46                       
------------------------------------------------------------------------
      Item               Subject             FAR Case         Analyst   
------------------------------------------------------------------------
I..............  Gratuities............  96-300           Linfield.     
II.............  * Electronic            91-104           DeStefano.    
                  Contracting.                                          
III............  * Office of Federal     94-008           O'Neill       
                  Procurement Policy                                    
                  Letter 93-1,                                          
                  Management Oversight                                  
                  of Service                                            
                  Contracting.                                          
IV.............  Performance Incentives  93-603           DeStefano.    
                  for Fixed-Price                                       
                  Contracts.                                            
V..............  * Environmentally       92-054B          Linfield.     
                  Preferable Products                                   
                  (Interim).                                            
VI.............  Buy American Act--      91-119           Linfield.     
                  Construction                                          
                  (Grimberg Decision).                                  
VII............  Collection of           95-306           Klein.        
                  Historically Black                                    
                  Colleges and                                          
                  Universities/Minority                                 
                  Institutions Award                                    
                  Data.                                                 
VIII...........  Allowability of         95-021           DeStefano.    
                  Foreign Selling Costs.                                
IX.............  Independent Research    95-024           Olson.        
                  and Development/Bid                                   
                  and Proposal Costs in                                 
                  Cooperative                                           
                  Agreements.                                           
X..............  * Prompt Payment......  91-091           Olson.        
XI.............  Attorneys' Fees in GAO  96-016           O'Neill.      
                  Protests.                                             
XII............  Contractors'            94-605           Klein.        
                  Purchasing Systems                                    
                  Reviews.                                              
XIII...........  Performance-Based       96-005           Olson.        
                  Payments.                                             
------------------------------------------------------------------------

Item I--Gratuities (FAR Case 96-300)

    The interim rule published as Item III of Federal Acquisition 
Circular (FAC) 90-40 is converted to a final rule without change. The 
rule amended FAR 3.202 and 52.203-3 to exempt solicitations and 
contracts which do not exceed the simplified acquisition threshold from 
the prescribed use of the ``Gratuities'' clause.

Item II--Electronic Contracting (FAR Case 91-104)

    The interim rule published as Item II of FAC 90-29 is converted to 
a final rule with amendments in Parts 5, 14, 15, and 52. The rule 
facilitates the use of electronic data interchange in Government 
contracting and complements the rule published as Item II of FAC 90-40 
pertaining to the Federal Acquisition Computer Network.

Item III--Office of Federal Procurement Policy Letter 93-1, Management 
Oversight of Service Contracting (FAR Case 94-008)

    This final rule amends FAR 37.000 and 37.102, and adds a new 
Subpart 37.5, to implement OFPP Policy Letter 93-1, Management 
Oversight of Service Contracting. The policy letter provides 
Governmentwide guiding principles which are intended to improve the 
acquisition, management, and administration of service contracts. This 
rule also amends FAR 9.505-3 and 35.017-2 to remove references to OMB 
Circular A-120, Guidelines for the Use of Advisory and Assistance 
Services, which was rescinded by OMB on November 19, 1993.

Item IV--Performance Incentives for Fixed-Price Contracts (FAR Case 93-
603)

    This final rule amends FAR Parts 16 and 52 to permit the use of 
award-fee provisions as performance incentives in fixed-price 
contracts.

Item V--Federal Compliance With Right-To-Know Laws and Pollution 
Prevention Requirements (FAR Case 92-054B)

    This interim rule adds a new FAR Subpart 23.10, and a new clause at 
52.223-5 to implement Executive Order (E.O.) 12856 of August 3, 1993, 
Federal Compliance with Right-To-Know Laws and Pollution Prevention 
Requirements. The E.O. requires that a contract performed on a Federal 
facility shall provide that the contractor supply information on its 
use of certain hazardous or toxic substances in the

[[Page 12722]]

performance of the contract. This information is required to enable 
Federal facilities to comply with the reporting and emergency planning 
requirements of the Pollution Prevention Act of 1990 and the Emergency 
Planning and Community Right-To-Know Act of 1986.

Item VI--Buy American Act--Construction (Grimberg Decision) (FAR Case 
91-119)

    This final rule amends FAR Subpart 25.2 and the associated clauses 
at 52.225-5 and 52.225-15 to add guidance on exceptions to the Buy 
American Act, both pre-award and post-award. The rule adds two new 
solicitation provisions at 52.225-12 and 52.225-13 for use in 
solicitations for construction in the United States. These solicitation 
provisions set forth procedures by which offerors may request 
determinations regarding the inapplicability of the Buy American Act. 
The rule also adds a new section at 25.206, which provides guidance 
regarding instances of noncompliance with the Buy American Act.

Item VII--Collection of Historically Black Colleges and Universities/
Minority Institutions Award Data (FAR Case 95-306)

    This final rule adds a new FAR Subpart 26.3 and a new solicitation 
provision at 52.226-2 to implement Executive Order 12928, which 
requires agencies to provide periodic reporting on the progress made in 
award of contracts to Historically Black Colleges and Universities and 
Minority Institutions.

Item VIII--Allowability of Foreign Selling Costs (FAR Case 95-021)

    This final rule revises FAR 31.205-38(c)(2) by removing the ceiling 
on allowable foreign selling costs. The rule also amends 31.205-1, 
Public relations and advertising costs, by deleting reference to the 
ceiling limitation, and further revises 31.205-38(c)(2) by deleting 
obsolete language.

Item IX--Independent Research and Development/Bid and Proposal Costs in 
Cooperative Agreements (FAR Case 95-024)

    This final rule amends the cost principle at FAR 31.205-18, 
Independent research and development (IR&D) and bid and proposal costs, 
by removing from paragraph (e) the prohibition against treatment of 
contractor IR&D contributions under NASA cooperative arrangements as 
allowable indirect costs.

Item X--Prompt Payment (FAR Case 91-091)

    This final rule amends FAR 32.102, Subpart 32.9, and related 
clauses at 52.212-4, 52.232-5, 52.232-8, 52.232-25, 52.232-26, and 
52.232-27 in order to implement changes made in OMB Circular A-125 
(Revised), dated December 12, 1989, to comply with the Prompt Payment 
Act Amendments of 1988 (Public Law 100-496). The rule also contains 
amendments to clarify and simplify the FAR text and clauses.

Item XI--Attorneys' Fees in GAO Protests (FAR Case 96-016)

    This final rule amends FAR 33.104 to clarify that the $150 hourly 
cap on attorneys' fees applies only to those protests filed on or after 
October 1, 1995. Protests filed with the General Accounting Office 
prior to October 1, 1995, are not subject to the hourly cap on 
attorneys' fees, in accordance with Sections 10001 and 10002 of the 
Federal Acquisition Streamlining Act of 1994 (Public Law 103-355).

Item XII--Contractors' Purchasing Systems Reviews (FAR Case 94-605)

    This final rule amends FAR 44.302 to (1) add a requirement for the 
cognizant contract administration agency to determine the need for a 
contractor purchasing system review (CPSR) based on, but not limited 
to, the past performance of the contractor and volume, complexity, and 
dollar value of the contractor's subcontracting activity; and (2) 
delete the requirement for a CPSR to be performed initially and at 
least every 3 years thereafter, for contractors exceeding a certain 
sales level. Also, FAR sections 44.303 through 44.307 are amended to 
conform to amendments at 44.302.

Item XIII--Performance-Based Payments (FAR Case 96-005)

    This final rule amends FAR 52.232-32, Performance-Based Payments, 
by adding paragraphs (f) (6) and (7) to address title to residual 
material and liability for Government-furnished property, for 
consistency with paragraphs (d) (6) and (7) of FAR 52.232-16, Progress 
Payments.

    Dated: March 7, 1997.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.
[FR Doc. 97-6324 Filed 3-14-97; 8:45 am]
BILLING CODE 6820-EP-P