[Federal Register Volume 69, Number 192 (Tuesday, October 5, 2004)]
[Rules and Regulations]
[Pages 59700-59701]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22245]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 5, 12, 13, 14, 17, 19, 22, 25, 33, and 52

[FAC 2001-25; FAR Case 2003-016; Item II]
RIN 9000-AJ87


Federal Acquisition Regulation; Free Trade Agreements-Chile and 
Singapore, and Trade Agreements Thresholds

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 (Councils) have agreed to convert to a 
final rule, with changes, an interim rule amending the Federal 
Acquisition Regulation (FAR). The interim rule implemented new Free 
Trade Agreements with Chile and Singapore, as approved by Congress 
(Public Laws 108-77 and 108-78). The interim rule also implemented new 
dollar thresholds for application of trade agreements.

DATES: Effective Date: October 5, 2004.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755 
for information pertaining to status or publication schedules. For 
clarification of content, contact Ms. Cecelia Davis, Procurement 
Analyst, at (202) 219-0202. Please cite FAC 2001-25, FAR case 2003-016.

SUPPLEMENTARY INFORMATION:

A. Background

    The Free Trade Agreements with Chile and Singapore waive the 
applicability of the Buy American Act for some foreign supplies and 
construction materials from Chile and Singapore, and specify 
procurement procedures designed to ensure fairness, applicable to the 
acquisition of supplies and services (see the Government Procurement 
provisions at Chapters 9 and 13, respectively, of the trade 
agreements). The interim rule was published in the Federal Register at 
69 FR 1050, January 7, 2004. One public comment was received. To 
implement Section 106 of the authorizing acts, the interim rule added 
the statement ``United States law will apply to resolve any claim of 
breach of contract.'' to the Buy American Act/Trade Agreements clauses 
at FAR 52.225-3, 52.225-5, and 52.225-11. The Department of Justice 
noted that Section 106 of each authorizing act applies to all contracts 
entered into by any agency of the United States. Therefore, the 
Department of Justice recommended that the statement be a separate 
clause, included in every contract. The Councils concur. The final rule 
removes the statement of applicability of U.S. law from FAR clauses 
52.225-3, 52.225-5, and 52.225-11, and creates a new clause at FAR 
52.233-4, Applicable Law for Breach of Contract Claim, to include the 
statement of applicability of U.S. law in every contract subject to the 
FAR.
    This is not a significant regulatory action and, therefore, was not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

B. Regulatory Flexibility Act

    The Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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. Although the interim rule opened 
up Government procurement to the products of Chile, there will not be 
any significant economic impact on U.S. small businesses. The 
Department of Defense only applies the trade agreements to the non-
defense items listed at DFARS 225.401-70, and acquisitions under 
$100,000 that are set aside for small businesses are exempt. We did not 
receive any comments on this issue from small business concerns or 
other interested parties.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does apply; however, these changes to 
the FAR do not impose additional information collection requirements to 
the paperwork burden previously approved under OMB Control Numbers 
9000-0130, 9000-0025, and 9000-0141, respectively.

List of Subjects in 48 CFR Parts 5, 12, 13, 14, 17, 19, 22, 25, 33, 
and 52

    Government procurement.

    Dated: September 28, 2004.
Ralph J. De Stefano,
Acting Director,Contract Policy Division.

Interim Rule Adopted as Final with Changes

0
Accordingly, DoD, GSA, and NASA adopt the interim rule amending 48 CFR 
parts 5, 12, 13, 14, 17, 19, 22, 25, and 52, which was published in the 
Federal Register at 69 FR 1050, January 7, 2004, as a final rule with 
the following changes:
0
1. The authority citation for 48 CFR parts 5, 12, 13, 14, 17, 19, 22, 
25, 33, and 52 is revised to read as follows:

    Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 42 
U.S.C. 2473(c).

PART 33--PROTESTS, DISPUTES, AND APPEALS

0
2. Revise the section heading and text of section 33.215 to read as 
follows:


33.215  Contract clauses.

    (a) Insert the clause at 52.233-1, Disputes, in solicitations and 
contracts, unless the conditions in 33.203(b) apply. If it is 
determined under agency procedures that continued performance is 
necessary pending resolution of any claim arising under or relating to 
the contract, the contracting officer shall use the clause with its 
Alternate I.
    (b) Insert the clause at 52.233-4 in all solicitations and 
contracts.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.212-5 by-
0
a. Revising the date of the clause and paragraph (a); and
0
b. Removing ``(Jan 2004)'' from paragraph (b)(23)(i) of the clause and 
adding ``(OCT 2004)'' in its place; and removing ``(June 2004)'' from 
paragraph (b)(24) of the clause and adding ``(OCT 2004)'' in its place. 
The revised text reads as follows:

[[Page 59701]]

52.212-5  Contract Terms and Conditions Required to Implement Statutes 
or Executive Orders-Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR 
EXECUTIVE ORDERS-COMMERCIAL ITEMS (OCT 2004)

    (a) The Contractor shall comply with the following Federal 
Acquisition Regulation (FAR) clauses, which are incorporated in this 
contract by reference, to implement provisions of law or Executive 
orders applicable to acquisitions of commercial items:
    (1) 52.233-3, Protest After Award (AUG 1996) (31 U.S.C. 3553).
    (2) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 
2004) (Pub. L. 108-77, 108-78).
* * * * *
0
4. Amend section 52.213-4 by revising the date of the clause; and by 
adding paragraph (a)(1)(vi) to read as follows:


52.213-4  Terms and Conditions-Simplified Acquisitions (Other Than 
Commercial Items).

* * * * *

TERMS AND CONDITIONS-SIMPLIFIED ACQUISITIONS (OTHER THAN COMMERCIAL 
ITEMS) (OCT 2004)

    (a) * * *
    (1) * * *
    (vi) 52.233-4, Applicable Law for Breach of Contract Claim (OCT 
2004) (Pub. L. 108-77, 108-78).
* * * * *


52.225-3  [Amended]

0
5. Amend section 52.225-3 by revising the date of the clause to read 
``(OCT 2004)''; and removing paragraph (d) of the clause.


52.225-5  [Amended]

0
6. Amend section 52.225-5 by revising the date of the clause to read 
``(OCT 2004)''; and removing paragraph (c) of the clause.


52.225-11  [Amended]

0
7. Amend section 52.225-11 by revising the date of the clause to read 
``(OCT 2004)''; and removing paragraph (e) of the clause.
0
8. Add section 52.233-4 to read as follows:


52.233-4  Applicable Law for Breach of Contract Claim.

    As prescribed in 33.215(b), insert the following clause:

APPLICABLE LAW FOR BREACH OF CONTRACT CLAIM (OCT 2004)

    United States law will apply to resolve any claim of breach of 
this contract.
    (End of clause)

[FR Doc. 04-22245 Filed 10-4-04; 8:45 am]
BILLING CODE 6820-EP-S