[Federal Register Volume 72, Number 159 (Friday, August 17, 2007)]
[Rules and Regulations]
[Pages 46324-46326]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 07-3806]



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Part III





Department of Defense

General Services Administration

National Aeronautics and Space Administration





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48 CFR Chapter 1 and Parts 1, 3, et al.



Federal Acquisition Regulation; Interim and Final Rules

  Federal Register / Vol. 72 , No. 159 / Friday, August 17, 2007 / 
Rules and Regulations  

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR-2007-0002, Sequence 4]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-19; Introduction

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

ACTION: Summary presentation of final and interim rules, and technical 
amendments.

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SUMMARY: This document summarizes the Federal Acquisition Regulation 
(FAR) rules agreed to by the Civilian Agency Acquisition Council and 
the Defense Acquisition Regulations Council in this Federal Acquisition 
Circular (FAC) 2005-19. A companion document, the Small Entity 
Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, 
is available via the Internet at http://regulations.gov.

DATES: For effective dates and comment dates, see separate documents, 
which follow.

FOR FURTHER INFORMATION CONTACT: The analyst whose name appears in the 
table below in relation to each FAR case. Please cite FAC 2005-19 and 
the specific FAR case number(s). For information pertaining to status 
or publication schedules, contact the FAR Secretariat at (202) 501-
4755.

                                          List of Rules in FAC 2005-19
----------------------------------------------------------------------------------------------------------------
      Item                          Subject                             FAR case                 Analyst
----------------------------------------------------------------------------------------------------------------
I..............  Reporting of Purchases from Overseas Sources.  2005-034                 Murphy.
II.............  Changes to Lobbying Restrictions.............  2005-035                 Woodson.
III............  Online Representations and Certifications      2005-025                 Woodson.
                  Application Archiving Capability.
IV.............  Requirement to Purchase Approved               2005-017                 Jackson.
                  Authentication Products and Services.
V..............  Combating Trafficking in Persons (Interim)...  2005-012                 Woodson.
VI.............  Emergency Acquisitions.......................  2005-038                 Clark.
VII............  Small Business Credit for Alaska Native        2004-017                 Cundiff.
                  Corporations and Indian Tribes.
VIII...........  New Designated Countries--Bulgaria, Dominican  2006-028                 Murphy.
                  Republic, and Romania (Interim).
IX.............  Online Representations and Certifications      2006-025                 Woodson.
                  Application Review (Interim).
X..............  Free Trade Agreements-- El Salvador,           2006-006                 Murphy.
                  Honduras, and Nicaragua.
XI.............  Free Trade Agreements--Bahrain and Guatemala.  2006-017                 Murphy.
XII............  Accepting and Dispensing of $1 Coin (Interim)  2006-027                 Jackson.
XIII...........  Technical Amendments.........................  .......................  .......................
----------------------------------------------------------------------------------------------------------------


SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. 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.
    FAC 2005-19 amends the FAR as specified below:

Item I--Reporting of Purchases from Overseas Sources (FAR Case 2005-
034)

    This final rule converts the interim rule to a final rule with a 
minor change. The interim rule amended FAR Part 25 and added a 
provision (52.225-18, Place of Manufacture) to implement Section 837 of 
Division A of the Transportation, Treasury, Housing and Urban 
Development, the Judiciary, the District of Columbia, and Independent 
Agencies Appropriations Act, 2006 (Pub. L. 109-115). Section 837 
requires the head of each Federal agency to submit a report to Congress 
relating to acquisitions of articles, materials, or supplies that are 
manufactured outside the United States. The new provision requests from 
offerors necessary data regarding place of manufacture. The new 
provision will require an offeror to indicate whether the place of 
manufacture of the end products it expects to provide in response to 
the solicitation is predominantly inside or outside the United States. 
Whenever the place of manufacture for a contract is coded outside the 
United States, the contracting officer will be required to enter into 
FPDS the reason for buying items manufactured outside the United 
States. In addition, the rule clarifies different tests used to 
determine the country of origin (FAR 25.001) under the Buy American Act 
and the Trade Agreements Act.

Item II--Changes to Lobbying Restrictions (FAR Case 2005-035)

    This final rule amends the FAR in order to be consistent with the 
Lobbying Disclosure Act of 1995 and the OMB Interim Final Guidance, and 
to improve clarity of the regulation through improved use of plain 
language and compliance with FAR drafting conventions. Among the 
changes, this final rule--
    Includes the new concept of ``lobbying contact'' and brings in the 
concept of registrants under the Lobbying Act of 1995;
    Includes the OMB guidance that the term ``appropriated funds'' does 
not include profit or fee from a covered Federal action and that to the 
extent the contractor can demonstrate that the contractor has 
sufficient monies, other than Federal appropriated funds, the 
Government will assume that these other monies were spent for any 
influencing activities that would be unallowable if paid for with 
Federal appropriated funds;
    Formalizes in the regulations the changes that were already 
incorporated in the OMB Form Standard Form LLL, Disclosure of Lobbying 
Activities;
    Removes 31 U.S.C. 1352, Limitations on Payment to Influence Certain 
Federal Transactions), from the list of laws that are inapplicable to 
subcontracts for the acquisition of commercial item; and
    Makes the text, provisions, and clauses easier to understand, for 
both contracting officers and offerors/contractors.

Item III--Online Representations and Certifications Application 
Archiving Capability (FAR Case 2005-025)

    This final rule amends the FAR to eliminate confusion between the 
FAR record retention requirements at FAR 4.803 and the requirements at 
FAR Subpart 4.12 requiring contractors to submit Annual Representations 
and Certifications via the Online Representations and Certifications

[[Page 46325]]

Application (ORCA), a part of the Business Partner Network. Using ORCA 
eliminates the administrative burden for contractors of submitting the 
same information to various contracting offices, and establishes a 
common source for this information to procurement offices throughout 
the Government. The interim rule published at 71 FR 57362, September 
28, 2006, is adopted as final without change.

Item IV--Requirement to Purchase Approved Authentication Products and 
Services (FAR Case 2005-017)

    This final rule amends the Federal Acquisition Regulation (FAR) to 
address the acquisition of products and services for personal identity 
verification that comply with requirements in Homeland Security 
Presidential Directive (HSPD) 12, ``Policy for a Common Identification 
Standard for Federal Employees and Contractors,'' and Federal 
Information Processing Standards Publication (FIPS PUB) 201, ``Personal 
Identity Verification of Federal Employees and Contractors.''

Item V--Combating Trafficking in Persons (FAR Case 2005-012) (Interim)

    This revised interim rule amends the Federal Acquisition Regulation 
(FAR) to implement 22 U.S.C. 7104(g). This statute requires that 
contracts must include a clause that authorizes the department or 
agency to terminate the contract, if the contractor, contractor 
employee, subcontractor, or subcontractor employee engages in 
trafficking in persons. To accurately reflect the statutory language, 
the revised interim rule provides for contract termination for engaging 
in severe forms of trafficking in persons or procurement of a 
commercial sex act during the period of performance of the contract, 
and provides for contract termination for use of forced labor in the 
performance of the contract. While the interim rule only applied to 
contracts for services (other than commercial), this revised interim 
rule applies to all contracts, including contracts for supplies, and 
all contracts for commercial items as defined at 2.101.

Item VI--Emergency Acquisitions (FAR Case 2005-038)

    This final rule converts the interim rule published at 71 FR 38247, 
July 5, 2006, to a final rule with changes. This final rule amends the 
Federal Acquisition Regulation (FAR) to provide a consolidated 
reference to acquisition flexibilities that may be used during 
emergency situations. This change improves the contracting officer's 
ability to expedite acquisition of supplies and services during 
emergency situations. The final rule makes no change to existing 
contracting policy.

Item VII--Small Business Credit for Alaska Native Corporations and 
Indian Tribes (FAR Case 2004-017)

    This final rule amends the Federal Acquisition Regulation (FAR) to 
provide that contractors may count subcontracts awarded to Alaskan 
Native Corporations (ANCs) and Indian tribes towards the satisfaction 
of goals for subcontracting with small business (SB) and small 
disadvantaged business (SDB) concerns, regardless of their size. This 
rule implements Section 702 of Pub. L. 107-117, as amended by Section 
3003 of Pub. L. 107-206. These changes are expected to increase 
subcontracting opportunities for ANCs and Indian tribes, and improve 
Government and contractor subcontracting performance with these 
entities.

Item VIII--New Designated Countries--Bulgaria, Dominican Republic, and 
Romania (FAR Case 2006-028) (Interim)

    This interim rule allows contracting officers to purchase the goods 
and services of Bulgaria, the Dominican Republic, and Romania without 
application of the Buy American Act if the acquisition is subject to 
the Free Trade Agreements. This trade agreement with the Dominican 
Republic joins the North American Free Trade Agreement (NAFTA), the 
Australia, Bahrain, Chile, Morocco, and Singapore Free Trade 
Agreements, and the CAFTA-DR with respect to El Salvador, Guatemala, 
Honduras, and Nicaragua, which are already in the FAR. The threshold 
for applicability of the Dominican Republic--Central America--United 
States Free Trade Agreement is $64,786 for supplies and services (the 
same as other Free Trade Agreements to date except Morocco, Bahrain, 
Israel, and Canada) and $7,407,000 for construction (the same as all 
other Free Trade Agreements to date except NAFTA and Bahrain). Bulgaria 
and Romania have become parties to the World Trade Organization 
Government Procurement Agreement, so they are now designated countries.

Item IX--Online Representations and Certifications Application (ORCA) 
Review (FAR Case 2006-025) (Interim)

    This interim rule amends FAR 23.406 and 23.906, both titled 
Solicitation provision and contract clause, to revise the prescriptions 
for the use of 52.223-9 and 52.223-14 to provide for use under the same 
circumstances as the prescription for use of their associated 
provisions. These revisions allow the proper receipt of certification 
information and ensure compliance with the statutory requirements of 40 
CFR Part 247 and 42 U.S.C. 11023.

Item X--Free Trade Agreements--El Salvador, Honduras, and Nicaragua 
(FAR Case 2006-006)

    This final rule converts the interim rule published at 71 FR 36935, 
June 28, 2006, to a final rule without change. This rule allows 
contracting officers to purchase the products of El Salvador, Honduras, 
and Nicaragua without application of the Buy American Act if the 
acquisition is subject to the Dominican Republic--Central America--
United States Free Trade Agreement (CAFTA-DR). The CAFTA-DR took effect 
with respect to El Salvador on March 1, 2006. It took effect with 
respect to Honduras and Nicaragua on April 1, 2006. This agreement 
joins the North American Free Trade Agreement (NAFTA) and the 
Australia, Chile, Morocco, Bahrain, and Singapore Free Trade Agreements 
which are already in the FAR. The threshold for applicability of the 
CAFTA-DR is $64,786 for supplies and services, and $7,407,000 for 
construction.

Item XI--Free Trade Agreements--Bahrain and Guatemala (FAR Case 2006-
017)

    This final rule converts the interim rule published at 71 FR 67776, 
November 22, 2006, to a final rule without change. The rule allows 
contracting officers to purchase the goods and services of Bahrain and 
Guatemala without application of the Buy American Act if the 
acquisition is subject to the Free Trade Agreements. These trade 
agreements with Bahrain and Guatemala join the North American Free 
Trade Agreement (NAFTA), the Australia, Chile, Morocco, and Singapore 
Free Trade Agreements, and the CAFTA-DR with respect to El Salvador, 
Honduras, and Nicaragua that are already in the FAR. The threshold for 
applicability of the Dominican Republic--Central America--United States 
Free Trade Agreement is $64,786 for supplies and services (the same as 
other Free Trade Agreements to date except Morocco and Canada) and 
$7,407,000 for construction (the same as all other Free Trade 
Agreements to date except NAFTA). The threshold for applicability of 
the Bahrain Free Trade Agreement is $193,000 (the same as the Morocco 
FTA and the WTO GPA) and $8,422,165 for construction (the same as 
NAFTA).

[[Page 46326]]

Item XII--Accepting and Dispensing of $1 Coin (FAR Case 2006-027) 
(Interim)

    This interim rule implements the Presidential $1 Coin Act of 2005 
(Pub. L. 109-145). The Presidential $1 Coin Act of 2005 requires the 
Secretary of the Treasury to mint and issue annually four new $1 coins 
bearing the likenesses of the Presidents of the United States in the 
order of their service and to continue to mint and issue ``Sacagawea-
design'' coins for circulation. In order to promote circulation of the 
coins, Section 104 of the Public Law also requires that Federal 
agencies take action so that, by January 1, 2008, entities that operate 
any business, including vending machines, on any premises owned by the 
United States or under the control of any agency or instrumentality of 
the United States, are capable of accepting and dispensing $1 coins and 
that the entities display notices of this capability on the business 
premises.

Item XIII--Technical Amendments

    Editorial changes are made at FAR 31.201-5, 32.006-1, 32.006-2, 
52.212-5, 52.232-16, and 52.245-1 in order to update references.

    Dated: July 30, 2007
Al Matera,
Acting Director, Contract Policy Division.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 2005-19 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 2005-19 is 
effective August 17, 2007, except for Items II, IV, VI, and VII which 
are effective September 17, 2007.

    Dated: July 25, 2007.
Shay D. Assad,
Director, Defense Procurement and Acquisition Policy.

    Dated: July 18, 2007.
George Barclay,
Acting Senior Procurement Executive, General Services Administration.

    Dated: July 17, 2007.
Sheryl Goddard,
Acting Assistant Administrator for Procurement, National Aeronautics 
and Space Administration.
[FR Doc. 07-3806 Filed 8-16-07; 8:45 am]
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