[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14621-14623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7027]

[[Page 14621]]


Part II

General Services Administration

Department of Defense

National Aeronautics and Space Administration


48 CFR Parts 1, 3, 4, et al.


Federal Acquisition Regulations; Federal Acquisition Circular 2005-32; 
FAR Case 2008-026; FAR Cases 2009-008, -009, -010, -011, and -012, 
American Recovery and Reinvestment Act of 2009 (the Recovery Act); 
Final Rules

Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules 
and Regulations

[[Page 14622]]





48 CFR Chapter 1

[Docket FAR-2009-0001, Sequence 3]

Federal Acquisition Regulation; Federal Acquisition Circular 
2005-32; Introduction

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

ACTION: Summary presentation of final and interim rules, and technical 
amendments and corrections.


SUMMARY: This document summarizes the Federal Acquisition Regulation 
(FAR) rules agreed to by the Civilian Agency Acquisition Council and 
the Defense Acquisition Regulations Council in this Federal Acquisition 
Circular (FAC) 2005-32. A companion document, the Small Entity 
Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, 
is available via the Internet at http://acquisition.gov/far.

DATES: For effective dates and comment dates, see separate documents 
which follow.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
the analyst whose name appears in the table below in relation to each 
FAR case or subject area. Please cite FAC 2005-32 and specific FAR case 
number(s). Interested parties may also visit our Web site at http://acquisition.gov/far. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

                                          List of Rules in FAC 2005-32
        Item                               Subject                         FAR case              Analyst
I...................  American Recovery and Reinvestment Act of 2009          2009-008  Murphy.
                       (the Recovery Act)--Buy American Requirements
                       for Construction Material (Interim).
II..................  American Recovery and Reinvestment Act of 2009          2009-012  Parnell.
                       (the Recovery Act)--Whistleblower Protections
III.................  American Recovery and Reinvestment Act of 2009          2009-010  Gary.
                       (the Recovery Act)--Publicizing Contract
                       Actions (Interim).
IV..................  American Recovery and Reinvestment Act of 2009          2009-009  Woodson.
                       (the Recovery Act)--Reporting Requirements
V...................  American Recovery and Reinvestment Act of 2009          2009-011  Chambers.
                       (the Recovery Act)--GAO/IG Access (Interim).
VI..................  GAO Access to Contractor Employees (Interim)....        2008-026  Neurauter.

SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the 
actual revisions and/or amendments to these FAR cases, refer to the 
specific item number and subject set forth in the documents following 
these item summaries.
    FAC 2005-32 amends the FAR as specified below:

Item I--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Buy American Requirements for Construction Material (Interim) 
(FAR Case 2009-008)

    This interim rule implements the Buy American provision, section 
1605, of the American Recovery and Reinvestment Act of 2009. It 
prohibits the use of funds appropriated for the Recovery Act for any 
project for the construction, alteration, maintenance, or repair of a 
public building or public work unless all of the iron, steel, and 
manufactured goods used in the project are produced in the United 
States. However, section 1605 requires that the Buy American 
requirement be applied in a manner consistent with U.S. obligations 
under international agreements. Moreover, because Congress intended 
that least developed countries be excepted from section 1605, least 
developed countries can continue to be treated as designated countries. 
Section 1605 also provides for waivers under certain limited 

Item II--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Whistleblower Protections (Interim) (FAR Case 2009-012)

    Subpart 3.9 of the Federal Acquisition Regulation (FAR) is revised 
to add section 3.907. Section 3.907 provides procedures for 
whistleblower protection, when using funds appropriated or otherwise 
provided by the American Recovery and Reinvestment Act of 2009 (Pub. L. 
    Section 3.907 provides that non-Federal employers are prohibited 
from discharging, demoting, or discriminating against employees as a 
reprisal for disclosing certain covered information to certain 
categories of Government officials. This section further provides 
definitions relevant to the statute; establishes time periods within 
which the Inspector General and the agency head must take action with 
regard to a complaint filed by a contractor employee; establishes 
procedures for access to investigative files of the Inspector General; 
and provides for remedies and enforcement authority.
    A new clause 52.203-15 is added to require contractors to post 
rights and remedies for whistleblower protections under Section 1553 of 
the American Recovery and Reinvestment Act.

Item III--American Recovery and Reinvestment Act of 2009 (the Recovery 
Act)--Publicizing Contract Actions (Interim) (FAR Case 2009-010)

    This interim rule implements the Office of Management and Budget's 
Guidance, M-09-10, ``Initial Implementing Guidance for the American 
Recovery and Reinvestment Act of 2009,'' dated February 18, 2009, 
section 6.2. Federal Acquisition Regulation (FAR) Part 4 requires the 
contracting officer to enter data in the Federal Procurement Data 
System on any action funded in whole or in part by the American 
Recovery and Reinvestment Act of 2009 (Pub. L. 111-5), in accordance 
with the instructions at https://www.fpds.gov. Subpart 5.7 is added to 
direct the contracting officer to use the Governmentwide Point of Entry 
(https://www.fedbizopps.gov) to (1) Identify the action as funded by 
the Recovery Act; (2) post pre-award notices for orders exceeding 
$25,000 for ``informational purposes only;'' (3) describe supplies and 
services (including construction) in a narrative that is clear and 
unambiguous to the general public; and (4) provide a rationale for 
awarding any action, including modifications and orders, that is not 
both fixed-price and competitive,

[[Page 14623]]

and include the rationale for using other than a fixed-price and/or 
competitive approach. Parts 8, 13, and 16 are amended to reflect the 
new posting requirements for orders at Subpart 5.7.

Item IV--American Recovery and Reinvestment Act of 2009 (The Recovery 
Act)--Reporting Requirements (Interim) (FAR Case 2009-009)

    This interim rule implements section 1512 of Division A of the 
American Recovery and Reinvestment Act of 2009, which requires 
contractors to report on their use of Recovery Act funds. The rule adds 
a new subpart 4.15, and a new clause, 52.204-11. Contracting officers 
must include the new clause in solicitations and contracts funded in 
whole or in part with Recovery Act funds, except classified 
solicitations and contracts. This clause applies to Commercial item 
contracts and Commercially-Available-Off-The-Shelf (COTS) item 
contracts as well as actions under the Simplified Acquisition 
    Contracting officers who wish to use Recovery Act funds on existing 
contracts should modify those contracts to add the clause.
    Reports from contractors for all work funded, in whole or in part, 
by the Recovery Act, and for which an invoice is submitted prior to 
June 30, 2009, are due no later than July 10, 2009. Thereafter, reports 
shall be submitted no later than the 10th day after the end of each 
calendar quarter.

Item V--American Recovery and Reinvestment Act of 2009 (The Recovery 
Act)--GAO/IG Access (Interim) (FAR Case 2009-011)

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (Councils) are issuing an interim rule amending the 
Federal Acquisition Regulation (FAR) to implement Sections 902, 1514, 
and 1515 of the American Recovery and Reinvestment Act of 2009. 
Collectively, these Sections provide for the audit and review of both 
contracts and subcontracts, and the ability to interview such 
contractor and subcontractor personnel under contracts containing 
Recovery Act funds.
    These Recovery Act provisions are implemented in new alternate 
clauses to 52.212-5, ``Contract Terms and Conditions Required to 
Implement Statutes orExecutive Orders--Commercial Items'', 52-214-26, 
``Audit and Records--Sealed Bidding,'' and 52.215-2, ``Audit and 
Records--Negotiation''. For the Comptroller General these alternate 
clauses provide specific authority to audit contracts and subcontracts 
and to interview contractor and subcontractor employees under contracts 
using Recovery Act funds. Agency inspector generals receive the same 
authorities, with the exception of interviewing subcontractor 

Item VI--GAO Access to Contractor Employees (Interim) (FAR Case 2008-

    This interim rule amends the Federal Acquisition Regulation (FAR) 
Parts 12 and 52. Clauses 52.215-2, Audit and Records--Negotiation and 
52.214-26, Audit and Records--Sealed Bidding are being modified to 
allow the Government Accountability Office to interview current 
contractor employees when conducting audits. The rule will not apply to 
the acquisition of commercial items; therefore, FAR 12.503 will be 
amended to add the exemption of this rule. This change implements 
Section 871 of the Duncan Hunter National Defense Authorization Act for 
Fiscal Year 2009 (NDAA) (Pub. L. 110-417).

    Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 2005-32 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
    Unless otherwise specified, all Federal Acquisition Regulation 
(FAR) and other directive material contained in FAC 2005-32 is 
effective March 31, 2009.

    Dated: March 24, 2009.

Shay D. Assad,

Director, Defense Procurement And Acquisition Policy.

    Dated: March 24, 2009.

Rodney P. Lantier,

Acting Senior Procurement Executive & Acting Deputy Chief 
Acquisition Officer Office of the Chief Acquisition Officer U.S. 
General Services Administration.

    Dated: March 24, 2009.

William P. McNally,

Assistant Administrator for Procurement, National Aeronautics and 
Space Administration.

[FR Doc. E9-7027 Filed 3-30-09; 8:45 am]