[Federal Register Volume 74, Number 52 (Thursday, March 19, 2009)]
[Rules and Regulations]
[Pages 11819-11821]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5874]



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Part II





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 Chapter 1 and Parts 1, 3, et al.



Federal Acquisition Regulations; Final Rules, Interim Rules, and Small 
Entity Compliance Guide

Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules 
and Regulations

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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR 2009-0001, Sequence 2]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-31; Introduction

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

ACTION:  Summary presentation of rules.

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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) 2005-31. A companion document, the Small Entity 
Compliance Guide (SECG), follows this FAC. The FAC, including the SECG, 
is available via the Internet at http://www.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 2005-31 and 
the specific FAR case numbers. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

                                          List of Rules in FAC 2005-31
----------------------------------------------------------------------------------------------------------------
      Item                          Subject                             FAR case                 Analyst
----------------------------------------------------------------------------------------------------------------
I..............  Small Business Size Rerepresentation.........  2006-032                 Cundiff
II.............  Clarification of Submission of Cost or         2008-012                 Chambers
                  Pricing Data on Non-Commercial Modifications
                  of Commercial Items (Interim).
III............  Amendments to Incorporate New Wage             2008-014                 Woodson
                  Determinations.
IV.............  Least Developed Countries that are Designated  2008-021                 Murphy
                  Countries.
V..............  Federal Food Donation Act of 2008 (Interim)..  2008-017                 Jackson
VI.............  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 2005-31 amends the FAR as specified below:

Item I--Small Business Size Rerepresentation (FAR Case 2006-032)

    This rule amends the Federal Acquisition Regulation (FAR) to adopt 
as final, with changes, an interim FAR rule published in the Federal 
Register at 72 FR 36852, July 5, 2007, amending the FAR to implement 
the Small Business Administration's (SBA) final rule published on 
November 15, 2006 (71 FR 66434), entitled Small Business Size 
Regulations; Size for Purposes of Governmentwide Acquisition Contracts, 
Multiple Award Schedule Contracts and Other Long-Term Contracts; 8(a) 
Business Development/Small Disadvantaged Business; Business Status 
Determinations. The purpose of the SBA rule and this FAR rule is to 
improve the accuracy of small business size status reporting, at the 
prime contract level, over the life of certain contracts (long-term 
contracts, novations, acquisitions, and mergers). Contractors are 
required to rerepresent their size status prior to the end of the fifth 
year of a contract that is more than five years in duration (long-term 
contract); prior to exercising any option thereafter; following 
execution of a novation agreement on any contract; or following a 
merger or acquisition, regardless of whether there is a novation 
agreement. A change in the size status does not change the terms and 
conditions of the contract, but the agency may no longer include the 
value of options exercised or orders issued against the contract in its 
small business prime contracting goal achievements.

Item II--Clarification of Submission of Cost or Pricing Data on Non-
Commercial Modifications of Commercial Items (FAR Case 2008-012) 
(Interim)

    The Civilian Agency Acquisition Council and the Defense Acquisition 
Regulations Council (Councils) are issuing an interim final rule 
amending the Federal Acquisition Regulation (FAR) to harmonize the 
thresholds for cost or pricing data on non-commercial modifications of 
commercial items to reflect the Truth In Negotiation Act (TINA) 
threshold for cost and pricing data.
    The Councils are hereby implementing a requirement of the National 
Defense Authorization Act (NDAA) for FY 2008. Specifically, Section 814 
of the Act requires the harmonization of the threshold for cost or 
pricing data on non-commercial modifications of commercial items with 
the TINA threshold for cost and pricing data. By linking the threshold 
for cost or pricing data on non-commercial modifications of commercial 
items with the TINA threshold at FAR 15.403-4, whenever the TINA 
threshold is adjusted the threshold for cost or pricing data on non-
commercial modifications of commercial items will be automatically 
adjusted as well.

Item III--Amendments to Incorporate New Wage Determinations(FAR Case 
2008-014)

    The final rule amends the Federal Acquisition (FAR) to correct an 
inconsistency between FAR 15.206(c) and 22.404-5(c)(3), by revising the 
language at 22.404-5(c). This change requires the contracting officer 
to amend solicitations to incorporate new Davis Bacon wage 
determinations (WD) and furnish the wage rate information only to all 
offerors that have not been eliminated from the competition, if the 
closing date for receipt of offers has already passed. The revision is 
necessary to ensure consistency with FAR 15.206(c), and eliminate a 
possible scenario where incorporation of an updated WD into the 
solicitation process, could cause an unnecessary and counterproductive 
reevaluation of proposals already eliminated from competition. This 
change is consistent with the intent of the Department of Labor 
regulations, ensuring that the most current WD is placed in the 
contract at the time of award for

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compliance at the start of contract performance.

Item IV--Least Developed Countries that are Designated Countries (FAR 
Case 2008-021)

    This final rule amends the Federal Acquisition Regulation (FAR) to 
revise the definition of designated country, adding Liberia and 
removing Cape Verde. Least Developed Countries form a subset of 
designated countries. The list of Least Developed Countries is derived 
from a United Nations list of Least Developed Countries. The United 
States Trade Representative has updated the list of Least Developed 
Countries that are treated as designated countries. In acquisitions 
that are covered by the World Trade Organization Government Procurement 
Agreement, contracting officers must acquire only U.S.-made or 
designated country end products, or U.S. or designated-country 
services, unless offers of such end products or services are not 
received or are insufficient to fulfill the requirement (FAR 
25.403(c)).

Item V--Federal Food Donation Act of 2008 (Pub. L. 110-247) (FAR Case 
2008-017) (Interim)

    This interim rule amends the Federal Acquisition Regulation (FAR) 
Parts 26, 31, and 52 to encourage executive agencies and their 
contractors to donate apparently wholesome excess food to nonprofit 
organizations that provide assistance to food-insecure people in the 
United States. This change implements the Federal Food Donation Act of 
2008 (Pub. L. 110-247) which encourages executive agencies and their 
contractors, in contracts for the provision, service, or sale of food 
to encourage the contractors, to the maximum extent practicable and 
safe, to donate apparently wholesome excess food to nonprofit 
organizations that provide assistance to food-insecure people in the 
United States. The rule is effective for all solicitations and 
contracts greater than $25,000 for the provision, service, or sale of 
food in the United States issued on or after the effective date of the 
rule.

Item VI--Technical Amendments

    Editorial changes are made at FAR 3.503-2, 47.103-1, and 52.225-11.

    Dated: March 13, 2009
Al Matera,
Director, Office of Acquisition Policy.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 2005-31 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 2005-31 is 
effective March 19, 2009, except for Items I and III, which are 
effective April 20, 2009.

    Dated: March 12, 2009.
Amy G. Williams,
Acting Deputy Director, Defense Procurement and Acquisition Policy 
(Defense Acquisition Regulations System).

    Dated: March 11, 2009.
Rodney P. Lantier,
 Acting Senior Procurement Executive & Acting Deputy Chief Acquisition 
Officer, Office of the Chief Acquisition Officer, U.S. General Services 
Administration.

    Dated: March 11, 2009.
William P. McNally,
Assistant Administrator for Procurement, National Aeronautics and Space 
Administration.
[FR Doc. E9-5874 Filed 3-18-09; 8:45 am]
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