[Federal Register Volume 62, Number 1 (Thursday, January 2, 1997)]
[Rules and Regulations]
[Pages 224-225]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 96-33198]



[[Page 223]]

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Part V





Department of Defense





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General Services Administration





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National Aeronautics and Space Administration





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48 CFR Ch. 1, et al.



Federal Acquisition Regulation (FAR); Final Rules

  Federal Register / Vol. 62, No. 1 / Thursday, January 2, 1997 / Rules 
and Regulations  

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Federal Acquisition Circular 90-45]


Federal Acquisition Regulation; Introduction of Miscellaneous 
Amendments

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

ACTION: Summary presentation of final and interim rules.

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SUMMARY: This document serves to introduce and relate together the 
interim and final rule documents which follow and which comprise 
Federal Acquisition Circular (FAC) 90-45. The Civilian Agency 
Acquisition Council and the Defense Acquisition Regulations Council 
have agreed to issue FAC 90-45 to amend the Federal Acquisition 
Regulation (FAR) to implement changes in the following subject areas:

                                                                        
      Item               Subject          FAR case         Analyst      
                                                                        
I                Procurement Integrity.     96-314  Linfield            
II               Certification              96-312  O'Neill             
                  Requirements.                                         
III              Humanitarian               96-323  Linfield            
                  Operations.                                           
IV               Freedom of Information     96-326  O'Neill             
                  Act.                                                  
V                Exceptions to              96-306  Olson               
                  Requirements for                                      
                  Certified Cost or                                     
                  Pricing Data.                                         
VI               Implementation of the      93-310  Linfield            
                  North American Free                                   
                  Trade Agreement                                       
                  Implementation Act.                                   
VII              Application of Special     96-307  Moss                
                  Simplified Procedures                                 
                  to Certain Commercial                                 
                  Items.                                                
VIII             Compliance with            96-320  Linfield            
                  Immigration and                                       
                  Nationality Act                                       
                  Provisions.                                           
IX               Caribbean Basin and        96-017  Linfield            
                  Designated Countries.                                 
X                Caribbean Basin            96-020  Linfield            
                  Country End Products--                                
                  Renewal of Treatment                                  
                  as Eligible.                                          
XI               Compensation of            96-325  DeStefano           
                  Certain Contractor                                    
                  Personnel (Interim).                                  
XII              Agency Procurement         95-309  O'Neill             
                  Protests.                                             
XIII             Two-Phase Design Build     96-305  O'Neill             
                  Selection Procedures.                                 
XIV              Year 2000 Compliance       96-607  O'Neill             
                  (Interim).                                            
XV               Limitation on Indirect     96-324  Olson               
                  Cost Audits.                                          
                                                                        

DATES: For effective dates and comment dates, see individual documents 
which appear elsewhere in this separate part.

FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in 
relation to each FAR case or subject area. For general information, 
contact the FAR Secretariat, Room 4035, GS Building, Washington, DC, 
20405 (202) 501-4755. Please cite FAC 90-45 and FAR case number(s).

SUPPLEMENTARY INFORMATION: Federal Acquisition Circular 90-45 amends 
the Federal Acquisition Regulation (FAR) as specified below:

Case Summaries

    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.

Item I--Procurement Integrity (FAR Case 96-314)

    This final rule amends the FAR to implement the procurement 
integrity provisions of Section 27 of the Office of Federal Procurement 
Policy (OFPP) Act, as amended by Section 4304 of the 1996 National 
Defense Authorization Act. Section 4304 is part of the Clinger-Cohen 
Act of 1996. Section 3.104 is rewritten. Unlike the previous statute, 
some of the post-employment restrictions in the rewritten 3.104 apply 
to post-award activities. The final rule eliminates all of the 
procurement integrity certifications required by the previous statute.
    The final rule makes other significant changes. The new post-
employment restrictions apply to services provided or decisions made on 
or after January 1, 1997; the old restrictions apply for former 
officials whose employment ended before January 1, 1997. The clause at 
52.203-10 is revised. The clauses at 52.203-9 and 52.203-13, and the 
Optional Form 333 at 53.202-1, are removed. The solicitation provision 
at 52.203-8 is replaced with a new clause to provide the means to void 
or rescind contracts where there has been a violation of the 
procurement integrity restrictions.

Item II--Certification Requirements (FAR Case 96-312)

    This final rule amends FAR Parts 1, 3, 4, 6, 8, 9, 12, 14, 16, 19, 
23, 27, 29, 31, 32, 36, 37, 42, 45, 47, 49, 52, and 53 to remove 
certain certification requirements for contractors and offerors that 
are not specifically required by statute. The rule implements Section 
4301(b) of the Clinger-Cohen Act of 1996 (Public Law 104-106).

Item III--Humanitarian Operations (FAR Case 96-323)

    This final rule amends the definition of ``simplified acquisition 
threshold'' at FAR 2.101 to increase the threshold to $200,000 for 
contracts to be awarded and performed, or purchases to be made, outside 
the United States in support of a humanitarian or peacekeeping 
operation. The rule implements 10 U.S.C. 2302(7) and 41 U.S.C. 259(d) 
as amended by Section 807 of the National Defense Authorization Act for 
Fiscal Year 1997 (Public Law 104-201).

Item IV--Freedom of Information Act (FAR Case 96-326)

    This final rule amends FAR Subpart 24.2 to implement Section 821 of 
the National Defense Authorization Act for Fiscal Year 1997 (Public Law 
104-201). Section 821 prohibits, with certain exceptions, Government 
release of competitive proposals under the Freedom of Information Act.

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Item V--Exceptions to Requirements for Certified Cost or Pricing Data 
(FAR Case 96-306)

    This final rule implements Section 4201 of the Clinger-Cohen Act of 
1996 (Public Law 104-106). Section 4201: (1) Exempts suppliers of 
commercial items under Federal contracts from the requirement to submit 
costs or pricing data; (2) provides for the submission of information 
other than cost or pricing data to the extent necessary to determine 
price reasonableness; and (3) removes specific audit authorities 
pertaining to information provided by commercial suppliers. 
Accordingly, FAR 15.8, 52.215-26, 52.215-41, and 52.215-42 are amended 
to revise requirements pertaining to the submission of information 
relating to commercial items; FAR 52.215-43 is removed; and other 
associated changes are made in FAR Parts 4, 12, 15, 16, 25, 31, 46, and 
52.

Item VI--Implementation of the North American Free Trade Agreement 
Implementation Act (FAR Case 93-310)

    The interim rule published as FAC 90-19 and amended by FAC 90-39 is 
converted to a final rule with changes. The final rule amends FAR Part 
25. The final rule revisions result from public comments received on 
FAR Case 96-312 published as Item II in this FAC. Upon consideration of 
those public comments, certifications eliminated under the interim rule 
published in FAC 90-39 were reinstated.

Item VII--Application of Special Simplified Procedures to Certain 
Commercial Items (FAR Case 96-307)

    This final rule amends FAR Parts 5, 6, 11, 12, and 13 to implement 
section 4202 of the Clinger-Cohen Act of 1996 (Public Law 104-106). 
Section 4202 requires revisions to the FAR to incorporate special 
simplified procedures for the acquisition of certain commercial items 
with a value greater than the simplified acquisition threshold 
($100,000) but not greater than $5 million. The purpose of this 
revision is to vest contracting officers with additional procedural 
discretion and flexibility, so that commercial item acquisitions in 
this dollar range may be solicited, offered, evaluated, and awarded in 
a simplified manner that maximizes efficiency and economy and minimizes 
burden and administrative costs for both the Government and industry.

Item VIII--Compliance With Immigration and Nationality Act Provisions 
(FAR Case 96-320)

    The interim rule published as Item II of FAC 90-41 is converted to 
a final rule without change. The final rule amends FAR 9.406 to specify 
that a contractor may be debarred upon a determination by the Attorney 
General that the contractor is not in compliance with the employment 
provisions of the Immigration and Nationality Act. The rule implements 
Executive Order 12989, Economy and Efficiency in Government Procurement 
Through Compliance With Certain Immigration and Naturalization Act 
Provisions.

Item IX--Caribbean Basin and Designated Countries (FAR Case 96-017)

    This final rule amends FAR 25.401 to update the lists of countries 
included in the definitions of ``Caribbean Basin country'' and 
``Designated country''.

Item X--Caribbean Basin Country End Products--Renewal of Treatment as 
Eligible (FAR Case 96-020)

    This final rule amends FAR 25.402(b) to implement the extension by 
the U.S. Trade Representative of the date of eligibility under the 
Trade Agreements Act for products of Caribbean Basin countries.

Item XI--Compensation of Certain Contractor Personnel (FAR Case 96-325)

    This interim rule adds a new requirement at FAR 31.205-6(p) to 
implement Section 809 of the Fiscal Year (FY) 1997 National Defense 
Authorization Act (Public Law 104-201). Section 809 places a 
Governmentwide ceiling of $250,000 per year on allowable compensation 
costs for contractor personnel in senior management positions under 
contracts awarded during FY 1997.

Item XII--Agency Procurement Protests (FAR Case 95-309)

    The interim rule published as Item XIII of FAC 90-40 is revised and 
finalized. The rule amends FAR 33.103 to implement Executive Order 
12979, Agency Procurement Protests. Executive Order 12979 provides for 
inexpensive, informal, procedurally simple, and expeditious resolution 
of agency protests, including the use of alternative dispute resolution 
techniques, third party neutrals, and another agency's personnel.

Item XIII--Two-Phase Design-Build Selection Procedures (FAR Case 96-
305)

    This final rule amends FAR Part 36 to implement Section 4105 of the 
Clinger-Cohen Act of 1996 (Public Law 104-106), which authorizes the 
use of two-phase design-build procedures for construction contracting. 
Two phase design-build construction contracting provides for the 
selection of a limited number of offerors (normally five or fewer), 
during Phase One of the solicitation process, to submit detailed 
proposals for Phase Two.

Item XIV--Year 2000 Compliance (FAR Case 96-607)

    This interim rule amends FAR Part 39 to increase awareness of Year 
2000 procurement issues and to ensure that solicitations and contracts 
address Year 2000 issues.

Item XV--Limitation on Indirect Cost Audits (FAR Case 96-324)

    This final rule amends FAR Part 42 to implement Section 808 of the 
FY 97 National Defense Authorization Act (Public Law 104-201). Section 
808 amends 10 U.S.C. 2313(d) and 41 U.S.C. 254d(d) to expand required 
audit reciprocity among Federal agencies to include post-award audits. 
10 U.S.C. 2313(d) and 41 U.S.C. 254d(d) were added by the Federal 
Acquisition Streamlining Act of 1994, Sections 2201(a)(1) and 2251(a) 
of Public Law 103-355, to include reciprocity on pre-award audits.

    Dated: December 24, 1996.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 90-45 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
Administration.
    Unless otherwise specified, all Federal Acquisition Regulation 
(FAR) and other directive material contained in FAC 90-45 is effective 
January 1, 1997, except for Item XII, which is effective March 3, 1997.

    Dated: December 24, 1996.
Charles A. Zuckerman,
Director, Defense Procurement (Acting).

    Dated: December 23, 1996.
Ida M. Ustad,
Deputy Associate Administrator, Office of Acquisition Policy, General 
Services Administration.

    Dated: December 23, 1996.
L.W. Bailets,
Associate Administrator for Procurement (Acting), National Aeronautics 
and Space Administration.
[FR Doc. 96-33198 Filed 12-31-96; 8:45 am]
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