[Federal Register Volume 59, Number 59 (Monday, March 28, 1994)]
[Unknown Section]
[Page ]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 94-6897]


[Federal Register: March 28, 1994]


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DEPARTMENT OF DEFENSE
48 CFR Part 45

[FAR Case 91-83]


Federal Acquisition Regulation; Government Property

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 are proposing to amend the Federal 
Acquisition Regulation (FAR) to emphasize the Government's policy on 
providing facilities to contractors, to clarify the exceptions to this 
policy and the procedures for authorizing the exceptions, and to remove 
unnecessary and duplicative language. The purpose in emphasizing the 
Government's current policy is to reduce the amount of Government 
facilities provided to contractors. This regulatory action was not 
subject to Office of Management and Budget review pursuant to Executive 
Order No. 12866 dated September 30, 1993.

DATES: Comments should be submitted to the FAR Secretariat at the 
address shown below on or before May 27, 1994 to be considered in the 
formulation of a final rule.

ADDRESSES: Interested parties should submit written comments to: 
General Services Administration, FAR Secretariat (VRS), 18th & F 
Streets, NW., room 4037, Washington, DC 20450.
    Please cite FAR case 91-83 in all correspondence related to this 
case.

FOR FURTHER INFORMATION CONTACT:
Ms. Linda Klein at (202) 501-3775 in reference to this FAR case. For 
general information, contact the FAR Secretariat, room 4037, GS 
Building, Washington, DC 20405 (202) 501-4755. Please cite FAR case 91-
83.

SUPPLEMENTARY INFORMATION:

A. Background

    FAR 45.302 currently states that contractors shall furnish all 
facilities, with certain exceptions, in performing Government 
contracts. Despite this policy statement, recent oversight reviews have 
been critical of the amount of Government facilities in the hands of 
contractors. The Councils reviewed the language at 45.302 and revised 
it to clarify current policy and remove unnecessary and duplicative 
language.

B. Regulatory Flexibility Act

    The proposed rule is not expected 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 the rule 
is a recasting of existing policy and does not include any substantive 
changes. An Initial Regulatory Flexibility Analysis has, therefore, not 
been performed. Comments from small entities concerning the affected 
FAR subpart will be considered in accordance with section 610 of the 
Act. Such comments must be submitted separately and should cite 5 
U.S.C. 601, et seq., (FAR case 91-83), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the proposed 
changes to the FAR do not impose recordkeeping or information 
collection requirements, or collections of information from offerors, 
contractors, or members of the public which require the approval of the 
Office of Management and Budget under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Part 45

    Government procurement.

    Dated: March 18, 1994.
Albert A. Vicchiolla,
Director, Office of Federal Acquisition Policy.

    Therefore, it is proposed that 48 CFR part 45 be amended as set 
forth below:

PART 45--GOVERNMENT PROPERTY

    1. The authority citation for 48 CFR part 45 continues to read as 
follows:

    Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

    2. Section 45.302-1 is revised to read as follows:


45.302-1  Policy.

    (a) Contractors shall provide all facilities required for 
performing Government contracts except that agencies may provide 
facilities--
    (1) For use in a Government-owned, contractor-operated industrial 
plant operated on a cost-plus-fee basis;
    (2) For support of industrial preparedness programs;
    (3) For use in performing a contract on a Government installation;
    (4) As components of special tooling or special test equipment 
acquired or fabricated at Government expense subsequent to approval by 
the contracting officer;
    (5) When the facilities are only available from Government sources;
    (6) As otherwise authorized by law; or
    (7) When the agency head or designee issues a Determination and 
Finding (see subpart 1.7) that the contract cannot be fulfilled by any 
other practical means or that it is in the public interest to provide 
the facilities.
    (i) Mere assertion by a contractor that it is unable to provide 
facilities is not, in itself, sufficient to justify approval. The 
determination shall include findings that the contractor sought private 
financing of the facilities but it was not available or that private 
financing is determined not advantageous to the Government. If the 
contractor's inability to provide facilities is due to insufficient 
lead time, the Government may furnish existing facilities until the 
contractor's facilities can be installed.
    (ii) The original determination and the contractor's written 
statement asserting inability to obtain nongovernment facilities, if 
applicable, shall be included in the contract file.
    (iii) Government facilities with a unit cost of less than $10,000 
shall not be provided to contractors under the exception in 
subparagraph (a)(7) unless the contractor is a nonprofit institution of 
higher education or other nonprofit organization whose primary purpose 
is the conduct of scientific research.
    (b) Even when one of the exceptions in subparagraphs (a)(1) through 
(a)(7) of this section applies, agencies shall not--
    (1) Provide new facilities to contractors unless existing 
Government-owned facilities are either inadequate or cannot be 
economically furnished;
    (2) Use research and development funds to provide contractors with 
new construction or improvements of general utility, unless authorized 
by law; or
    (3) Provide facilities to contractors solely for nongovernment use, 
unless authorized by law.
    (c) The applicability of the exceptions in subparagraphs (a)(1) 
through (a)(6) of this section shall be documented in the contract file 
by a Determination and Findings signed by the contracting officer.
    (d) Government facilities provided to contractors shall be 
individually identified in the solicitation and the contract.

[FR Doc. 94-6897 Filed 3-25-94; 8:45 am]
BILLING CODE 6820-34-M