[Federal Register Volume 74, Number 60 (Tuesday, March 31, 2009)]
[Rules and Regulations]
[Pages 14649-14651]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-7030]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 12 and 52

[FAC 2005-32; FAR Case 2008-026; Item VI; Docket 2009-0013, Sequence 1]
RIN 9000-AL25


Federal Acquisition Regulation; FAR Case 2008-026, GAO Access to 
Contractor Employees

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 871 of the Duncan Hunter National Defense Authorization Act for 
Fiscal Year 2009 (NDAA) (Pub. L. 110-417) which allows the Government 
Accountability Office to interview current contractor employees during 
the audit of the contractor's records. FAR 52.215-2(d)(1), Audit and 
Records-Negotiation, is revised to allow for the

[[Page 14650]]

required access by inserting before the period: ``and to interview any 
current employee regarding such transactions''. FAR 52.214-26(c), Audit 
and Records-Sealed Bidding is revised to allow for the required access 
by inserting before the period: ``and also the right to interview any 
current employee regarding such transactions''.

DATES: Effective Date: March 31, 2009.
    Comment Date: Interested parties should submit written comments to 
the FAR Secretariat on or before June 1, 2009 to be considered in the 
formulation of a final rule.

ADDRESSES: Submit comments identified by FAC 2005-32, FAR case 2008-
026, by any of the following methods:
     Regulations.gov: http://www.regulations.gov. 
    Submit comments via the Federal eRulemaking portal by inputting 
``FAR Case 2008-026'' under the heading ``Comment or Submission''. 
Select the link ``Send a Comment or Submission'' that corresponds with 
FAR Case 2008-026. Follow the instructions provided to complete the 
``Public Comment and Submission Form''. Please include your name, 
company name (if any), and ``FAR Case 2008-026'' on your attached 
document.
     Fax: 202-501-4067.
     Mail: General Services Administration, FAR Secretariat 
(VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, 
DC 20405.
    Instructions: Please submit comments only and cite FAC 2005-32, FAR 
case 2008-026, in all correspondence related to this case. All comments 
received will be posted without change to http://www.regulations.gov, 
including any personal and/or business confidential information 
provided.

FOR FURTHER INFORMATION CONTACT: Ms. Suzanne Neurauter, Procurement 
Analyst, at (202) 219-0310 for clarification of content. Please cite 
FAC 2005-32, FAR case 2008-026. For information pertaining to status or 
publication schedules, contact the FAR Secretariat at (202) 501-4755.

SUPPLEMENTARY INFORMATION: 

A. Background

    Section 871 of the Duncan Hunter National Defense Authorization Act 
for Fiscal Year 2009 (NDAA) (Pub. L. 110-417) added language allowing 
the Comptroller General to interview current employees regarding 
transactions being examined during an audit of contracting records. The 
Act revises 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1) by inserting 
before the period: ``and to interview any current employee regarding 
such transactions''. To implement the Act, FAR clauses 52.215-2, Audit 
and Records-Negotiation and 52.214-26, Audit and Records-Sealed 
Bidding, are amended to add the required statutory language. The 
statute did not specify that Section 871 apply to commercial item 
contracts and therefore was not applied to FAR clause 52.212-5, 
Contract Terms and Conditions Required to Implement Statutes or 
Executive Order-Commercial Items. Section 34 of the Office of Federal 
Procurement Policy Act (OFPP), 41 U.S.C. 430, exempts commercial item 
acquisitions from new provisions of law, such as Section 871, unless 
(1) the law provides criminal or civilian penalties, (2) the law 
expressly refers to 41 U.S.C. 430 and states that it applies to 
commercial item contracts, or (3) the FAR Council makes a written 
determination that it would not be in the best interest of the Federal 
Government to exempt commercial item contracts. Thus, this new 
provision was added to the list of inapplicable laws at FAR 12.503(a).
    This is a significant regulatory action and, therefore, was subject 
to review under Section 6 of Executive Order 12886, 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 Councils do not expect this interim rule to have a significant 
economic impact on a substantial number of small entities within the 
meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601, et seq. 
Only a small number of small businesses are audited by GAO. Currently 
many GAO audits of small business contractors include contractor 
employee interviews. This Act is designed to cover those incidents in 
which contractor employees are not able to be interviewed. Therefore, 
it is not anticipated that interviewing any current employee regarding 
such contract transactions will have a significant impact.
    Therefore, an Initial Regulatory Flexibility Analysis has not been 
performed. The Councils will consider comments from small entities 
concerning the affected FAR Parts 12 and 52 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 2005-32, FAR Case 2008-026 in all 
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. 
Chapter 35, 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 to implement statutory requirements of Section 871 of the 
Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 
(NDAA) (Pub. L. 110-417) which went into effect October 14, 2008. The 
Act revises 41 U.S.C. 254d (c)(1) and 10 U.S.C. 2313 (c)(1) by 
inserting before the period: ``and to interview any current employee 
regarding such transactions''. To implement the Act, the clauses at FAR 
52.215-2(d)(1) and 52.214-26(c) are amended to add the required 
statutory language. The Councils believe that the interim rule in the 
FAR will provide the contracting officer the relevant regulatory 
guidance needed when addressing requirements outlined in this rule. 
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 12 and 52

    Government procurement.

    Dated: March 25, 2009.
Al Matera,
Director, Office of Acquisition Policy.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 12 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 12 and 52 continues 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 12--ACQUISITION OF COMMERCIAL ITEMS

0
2. Amend section 12.503 by adding paragraph (a)(8) to read as follows:


12.503  Applicability of certain laws to Executive agency contracts for 
the acquisition of commercial items.

    (a) * * *
    (8) 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1), GAO Access to 
Contractor Employees, Section 871 of Pub. L. 110-417 (see 52.214-26 and 
52.215-2).
* * * * *

[[Page 14651]]

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.214-26 by revising the date of the clause and 
paragraph (c) to read as follows:


52.214-26  Audit and Records--Sealed Bidding.

* * * * *

Audit and Records-Sealed Bidding (MAR 2009)

* * * * *
    (c) Comptroller General. In the case of pricing any 
modification, the Comptroller General of the United States, or an 
authorized representative, shall have the same rights as specified 
in paragraph (b) of this clause and also the right to interview any 
current employee regarding such transactions.
* * * * *
(End of clause)


0
4. Amend section 52.215-2 by revising the date of the clause and 
paragraph (d)(1) to read as follows:


52.215-2  Audit and Records--Negotiation.

* * * * *

Audit and Records--Negotiation (MAR 2009)

* * * * *
    (d) Comptroller General. (1) The Comptroller General of the 
United States, or an authorized representative, shall have access to 
and the right to examine any of the Contractor's directly pertinent 
records involving transactions related to this contract or a 
subcontract hereunder and to interview any current employee 
regarding such transactions.
* * * * *
(End of clause)

 [FR Doc. E9-7030 Filed 3-30-09; 8:45 am]
BILLING CODE 6820-EP-P