[Federal Register Volume 69, Number 192 (Tuesday, October 5, 2004)]
[Rules and Regulations]
[Pages 59701-59702]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 04-22246]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 7, 11, 13, 15

[FAC 2001-25; FAR Case 2003-025; Item III]
RIN 9000--AK03


Federal Acquisition Regulation; Telecommuting for Federal 
Contractors

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

ACTION: Interim rule with request for comments.

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SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have agreed on an interim 
rule amending the Federal Acquisition Regulation (FAR) to implement 
Section 1428 of the Services Acquisition Reform Act of 2003, Title XIV 
of Public Law 108-136, Authorization of Telecommuting for Federal 
Contractors.

DATES: Effective Date: October 5, 2004.
    Comment Date: Interested parties should submit comments to the FAR 
Secretariat at the address shown below on or before December 6, 2004 to 
be considered in the formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2001-25, FAR case 2003-
025, by any of the following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     Agency Web Site: http://www.acqnet.gov/far/ProposedRules/proposed.htm. Click on the FAR Case number to submit comments.
     E-mail: [email protected]. Include FAC 2001-25, FAR 
case 2003-025, in the subject line of the message.
     Fax: 202-501-4067.
     Mail: General Services Administration, Regulatory 
Secretariat (V), 1800 F Street, NW, Room 4035, ATTN: Laurie Duarte, 
Washington, DC 20405.
    Instructions: Please submit comments only and cite FAC 2001-25, FAR 
case 2003-025, in all correspondence related to this case. All comments 
received will be posted without change to http://www.acqnet.gov/far/ProposedRules/proposed.htm, including any personal information 
provided.

FOR FURTHER INFORMATION CONTACT: The FAR Secretariat at (202) 501-4755, 
for information pertaining to status or publication schedules. For 
clarification of content, contact Mr. Gerald Zaffos, Procurement 
Analyst, at (202) 208-6091. Please cite FAC 2001-25, FAR case 2003-025.

SUPPLEMENTARY INFORMATION:

A. Background

    This interim rule implements Section 1428 of the Services 
Acquisition Reform Act of 2003 (Title XIV of Public Law 108-136). 
Section 1428 requires the amendment of the FAR to permit telecommuting 
by employees of Federal Government contractors in the performance of 
contracts entered into with executive agencies. Specifically, Section 
1428 states that solicitations for the acquisition of property or 
services may not include any requirement or evaluation criteria that 
would render an offeror ineligible to enter into a contract because it 
proposes to permit its employees to telecommute, unless the contracting 
officer determines that the requirements of the agency, including 
security requirements, cannot be met if telecommuting is permitted. The 
contracting officer must document in writing the basis for the 
determination. Also, the solicitation cannot contain any evaluation 
criteria that would reduce the scoring of an offer because the offeror 
proposes to permit its employees to telecommute, unless the contracting 
officer determines that the requirements of the agency, including 
security requirements, would be adversely impacted if telecommuting is 
allowed. The contracting officer must document in writing the basis for 
this determination as well.
    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 interim 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 by not 
automatically prohibiting telecommuting, the Government will be making 
it easier for small businesses to recruit and maintain employees for 
work on Government contracts. Until now, there has been no 
Governmentwide policy or practice concerning contractor employee 
telecommuting. This rule will not be a major change, but instead a 
small

[[Page 59702]]

positive benefit to small businesses. Therefore, an Initial Regulatory 
Flexibility Analysis has not been performed. The Councils will consider 
comments from small entities concerning the affected FAR Parts 7, 11, 
13, and 15 in accordance with 5 U.S.C. 610. Interested parties must 
submit such comments separately and should cite 5 U.S.C 601, et seq. 
(FAC 2001-25, FAR case 2003-025), in correspondence.

C. Paperwork Reduction Act

    The Paperwork Reduction Act does not apply because the changes to 
the FAR do not impose information collection requirements that require 
the approval of the Office of Management and Budget under 44 U.S.C. 
3501, et seq.

D. Determination to Issue an Interim Rule

    A determination has been made under the authority of the Secretary 
of Defense (DoD), the Administrator of General Services (GSA), and the 
Administrator of the National Aeronautics and Space Administration 
(NASA) that urgent and compelling reasons exist to promulgate this 
interim rule without prior opportunity for public comment. This action 
is necessary because this statute requires that the FAR be amended no 
later than 180 days after enactment. The statute was enacted on 
November 24, 2003, which required amending the FAR by May 22, 2004. 
However, pursuant to Public Law 98-577 and FAR 1.501, the Councils will 
consider public comments received in response to this interim rule in 
the formation of the final rule.

List of Subjects in 48 CFR Parts 7, 11, 13, and 15

    Government procurement.

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

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 7, 11, 13, and 15 as 
set forth below:
0
1. The authority citation for 48 CFR parts 7, 11, 13, and 15 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 7--ACQUISITION PLANNING

0
2. Add section 7.108 to read as follows:


7.108  Additional requirements for telecommuting.

    In accordance with section 1428 of Public Law 108-136, an agency 
shall generally not discourage a contractor from allowing its employees 
to telecommute in the performance of Government contracts. Therefore, 
agencies shall not--
    (a) Include in a solicitation a requirement that prohibits an 
offeror from permitting its employees to telecommute unless the 
contracting officer first determines that the requirements of the 
agency, including security requirements, cannot be met if telecommuting 
is permitted. The contracting officer shall document the basis for the 
determination in writing and specify the prohibition in the 
solicitation; or
    (b) When telecommuting is not prohibited, unfavorably evaluate an 
offer because it includes telecommuting, unless the contracting officer 
first determines that the requirements of the agency, including 
security requirements, would be adversely impacted if telecommuting is 
permitted. The contracting officer shall document the basis for the 
determination in writing and address the evaluation procedures in the 
solicitation.

PART 11--DESCRIBING AGENCY NEEDS

0
3. Amend section 11.002 by adding paragraph (g) to read as follows:


11.002  Policy.

* * * * *
    (g) Agencies shall not include in a solicitation a requirement that 
prohibits an offeror from permitting its employees to telecommute 
unless the contracting officer executes a written determination in 
accordance with FAR 7.108(a).

PART 13--SIMPLIFIED ACQUISITION PROCEDURES

0
4. Amend section 13.106-2 by redesignating paragraphs (b)(2) and (b)(3) 
as (b)(3) and (b)(4), respectively, and adding a new paragraph (b)(2) 
to read as follows:


13.106-2  Evaluation of quotations or offers.

* * * * *
    (b) * * *
    (2) If telecommuting is not prohibited, agencies shall not 
unfavorably evaluate an offer because it includes telecommuting unless 
the contracting officer executes a written determination in accordance 
with FAR 7.108(b).
* * * * *

PART 15--CONTRACTING BY NEGOTIATION

0
5. Amend section 15.304 by adding paragraph (c)(6) to read as follows:


15.304  Evaluation factors and significant subfactors.

* * * * *
    (c) * * *
    (6) If telecommuting is not prohibited, agencies shall not 
unfavorably evaluate an offer that includes telecommuting unless the 
contracting officer executes a written determination in accordance with 
FAR 7.108(b).
* * * * *
[FR Doc. 04-22246 Filed 10-4-04; 8:45 am]
BILLING CODE 6820-EP-S