Federal Register, Volume 63 Issue 35 (Monday, February 23, 1998)

[Federal Register Volume 63, Number 35 (Monday, February 23, 1998)]
[Rules and Regulations]
[Pages 9052-9053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 98-4294]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4 and 52

[FAC 97-04; FAR Case 97-601; Item III]
RIN 9000-AH92


Federal Acquisition Regulation; Review of Procurement Integrity 
Clauses

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

ACTION: Final rule.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council have agreed on a final rule amending 
the Federal Acquisition Regulation (FAR) to revise the application of 
procurement integrity requirements to contracts for commercial items. 
This regulatory action was not subject to Office of Management and 
Budget (OMB) review under Executive Order 12866, dated September 30, 
1993, and is not a major rule under 5 U.S.C. 804.

EFFECTIVE DATE: April 24, 1998.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS 
Building, Washington, DC 20405 (202) 501-4755 for information 
pertaining to status or publication schedules. For clarification of 
content, contact Mr. Paul Linfield, Procurement Analyst, at (202) 501-
1757. Please cite FAC 97-04, FAR case 97-601.

SUPPLEMENTARY INFORMATION:

A. Background

    Prior to its amendment by the Clinger-Cohen Act of 1996 (Public Law 
104-106), Section 27 of the Office of Federal Procurement Policy Act 
(41 U.S.C. 423) required that the FAR prescribe a contract clause 
specifying appropriate contractual penalties for procurement integrity 
violations. The resulting clause is FAR 52.203-10, Price or Fee 
Adjustment for Illegal or Improper Activity. A reference to this clause 
was included in the clause at FAR 52.212-5, Contract Terms and 
Conditions Required to Implement Statutes or Executive Orders--
Commercial Items. The final rule published in the Federal Register at 
62 FR 226, January 2, 1997, as FAR case 96-314, Item I of FAC 90-45, 
implemented the Clinger-Cohen amendments to 41 U.S.C. 423, but did not 
revise the contract clauses applicable to contracts for commercial 
items.
    Upon subsequent review, the Councils have determined that 41 U.S.C. 
423, as amended, no longer requires that a contract clause specify 
administrative remedies for procurement integrity violations. 
Therefore, this rule amends FAR 52.212-5 to remove the reference 
therein to FAR 52.203-10. However, since contracts for commercial items 
are not exempt from the procurement integrity prohibitions at 41 U.S.C. 
423, the clause at FAR 52.212-4 is amended to add 41 U.S.C. 423 to the 
list of applicable laws.
    The rule also amends FAR 4.803 to remove the obsolete requirement 
to maintain a record of persons having access to proprietary or source 
selection information.

B. Regulatory Flexibility Act

    This final rule does not constitute a significant FAR revision 
within the meaning of FAR 1.501 and Public Law 98-577 and publication 
for public comment is not required. However, comments from small 
entities concerning the affected FAR subparts will be considered in 
accordance with 5 U.S.C. 610. Such comments must be submitted 
separately and should cite 5 U.S.C 601, et seq. (FAC 97-04, FAR Case 
97-601), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the 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 OMB under 44 
U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 4 and 52

    Government procurement.

    Dated: February 13, 1998.
Edward C. Loeb,
Director, Federal Acquisition Policy Division.

    Therefore, 48 CFR Parts 4 and 52 are amended as set forth below:
    1. The authority citation for 48 CFR Parts 4 and 52 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).

PART 4--ADMINISTRATIVE MATTERS


4.803  [Amended]

    2. Section 4.803 is amended by removing paragraph (a)(42).

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

    3. Section 52.212-4 is amended by revising the date of the clause 
and paragraph (r) to read as follows:


52.212-4  Contract Terms and Conditions--Commercial Items.

* * * * *

Contract Terms and Conditions--Commercial Items (Apr 1998)

* * * * *
    (r) Compliance with laws unique to Government contracts. The 
Contractor agrees to comply with 31 U.S.C. 1352 relating to 
limitations on the use of appropriated funds to influence certain 
Federal contracts; 18 U.S.C. 431 relating to officials not to 
benefit; 40 U.S.C. 327, et seq., Contract Work Hours and Safety 
Standards Act; 41 U.S.C. 51-58, Anti-Kickback Act of 1986; 41 U.S.C. 
265 and 10 U.S.C. 2409 relating to whistleblower protections; 49 
U.S.C. 40118, Fly American; and 41 U.S.C. 423 relating to 
procurement integrity.
* * * * *


52.212-5  [Amended]

    4. Section 52.212-5 is amended by revising the date of the clause 
to read

[[Page 9053]]

``(Apr 1998)'' and removing and reserving paragraph (b)(2).

[FR Doc. 98-4294 Filed 2-20-98; 8:45 am]
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