[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52846-52847]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24551]

[[Page 52845]]


Part II

Department of Defense

General Services Administration

National Aeronautics and Space Administration

48 CFR Chapter 1, Parts 2, 4, 5, et al.

Federal Acquisition Regulation; Final Rules

Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / 
Rules and Regulations

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48 CFR Chapter 1

[Docket FAR 2009-0001, Sequence 8]

Federal Acquisition Regulation; Federal Acquisition Circular 
2005-37; Introduction

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

ACTION: Summary presentation of rules.


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) 2005-37. 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 2005-37 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 2005-37
      Item                          Subject                             FAR case                 Analyst
I..............  Registry of Disaster Response Contractors      2008-035                 Loeb.
II.............  Limiting Length of Noncompetitive Contracts    2007-008                 Woodson.
                  in ``Unusual and Compelling Urgency''
III............  GAO Access to Contractor Employees...........  2008-026                 Loeb.
IV.............  Use of Commercial Services Item Authority      2008-034                 Chambers.
V..............  Limitations on Pass-Through Charges (Interim)  2008-031                 Chambers.
VI.............  Award Fee Language Revision (Interim)........  2008-008                 Chambers.
VII............  National Response Framework..................  2009-003                 Loeb.
VIII...........  Technical Amendments.........................  .......................  .......................

SUPPLEMENTARY INFORMATION: Summaries for each FAR rule follow. For the 
actual revisions and/or amendments made by these FAR cases, refer to 
the specific item number and subject set forth in the documents 
following these item summaries.
    FAC 2005-37 amends the FAR as specified below:

Item I--Registry of Disaster Response Contractors (FAR Case 2008-035) 

    This interim rule amends the FAR at parts 2, 4, 7, 10, 13, 18, 26, 
and 52 to implement the Registry of Disaster Response Contractors 
provision, section 697 of the Department of Homeland Security (DHS) 
Appropriations Act, 2007 (6 U.S.C. 796).
    The Act requires that the Federal Emergency Management Agency 
(FEMA) establish and maintain this registry. It also requires that the 
registry include business information consistent with the data that is 
currently required in the Central Contractor Registration (CCR) with 
two additional categories added to reflect the area served by the 
business, and the bonding level of the business concern. The CCR has 
been updated to include these changes. In addition, the FEMA website 
has been updated with a link to the CCR search feature which provides 
access to the disaster response registry. Contracting officers will be 
required to consult this registry during market research and 
acquisition planning.

Item II--Limiting Length of Noncompetitive Contracts in ``Unusual and 
Compelling Urgency'' Circumstances (FAR Case 2007-008)

    This final rule amends the FAR to require that contracts awarded 
under the authority of FAR 6.302-2, Unusual and compelling urgency, may 
not exceed the time necessary to meet the unusual and compelling 
requirements, may not exceed the time for the agency to enter into 
another contract for the required goods and services through the use of 
competitive procedures, and may not exceed one year unless the head of 
the agency entering into the contract determines that exceptional 
circumstances apply. The determination may be made after contract award 
when making the determination prior to award would unnecessarily delay 
the award. The rule applies to any contract in an amount greater than 
the simplified acquisition threshold. The rule implements the 
requirements of section 862 of the Duncan Hunter National Defense 
Authorization Act (NDAA) for Fiscal Year 2009 (Pub. L. 110-417). The 
rule is intended to strengthen Federal acquisition competition 

Item III--GAO Access to Contractor Employees (FAR Case 2008-026)

    This final rule converts the interim rule published in the Federal 
Register at 74 FR 14649, March 31, 2009, to a final rule without 
change. The interim rule amended FAR 52.215-2, Audits and Records--
Negotiation, and FAR 52.214-26, Audit and Records--Sealed Bidding, to 
allow the Government Accountability Office to interview current 
contractor employees when conducting audits. The rule does not apply to 
the acquisition of commercial items; therefore, FAR 12.503 was amended 
to add the exemption of this rule. This change implemented section 871 
of the Duncan Hunter NDAA for Fiscal Year 2009 (Pub. L. 110-417).

Item IV--Use of Commercial Services Item Authority (FAR Case 2008-034) 

    This interim rule amends the FAR to implement section 868 of the 
Duncan Hunter NDAA for Fiscal Year 2009 (Pub. L. 110-417). Section 868 
provides that the FAR shall be amended with respect to the procurement 
of commercial services that are not offered and sold competitively in 
substantial quantities in the commercial marketplace, but are of a type 
offered and sold competitively in substantial quantities in the 
commercial marketplace. Such services may be considered commercial 

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only if the contracting officer has determined in writing that the 
offeror has submitted sufficient information to evaluate, through price 
analysis, the reasonableness of the price for these services.
    The rule details the information the contracting officer may 
consider in order to make this determination. The rule further details, 
when this determination cannot be made, the information which may be 
requested to determine price reasonableness.

Item V--Limitations on Pass-Through Charges (FAR Case 2008-031) 

    This interim rule implements section 866 of the Duncan Hunter NDAA 
for Fiscal Year 2009 (Pub. L. 110-417) and section 852 of the John 
Warner NDAA for Fiscal Year 2007 (Pub. L. 109-364). Section 866 
requires the Councils to amend the FAR to minimize excessive pass-
through charges by contractors from subcontractors, or of tiers of 
subcontractors, that add no or negligible value, and to ensure that 
neither a contractor nor a subcontractor receives indirect costs or 
profit/fee (i.e., pass-through charges) on work performed by a lower-
tier subcontractor to which the higher-tier contractor or subcontractor 
adds no, or negligible, value.
    To enable agencies to ensure that pass-through charges are not 
excessive, this interim rule includes a solicitation provision and a 
contract clause requiring offerors and contractors to identify the 
percentage of work that will be subcontracted, and when subcontract 
costs will exceed 70 percent of the total cost of work to be performed, 
to provide information on indirect costs and profit/fee and value added 
with regard to the subcontract work.

Item VI--Award Fee Language Revision (FAR Case 2008-008) (Interim)

    This interim rule amends the FAR to implement section 814 of the 
John Warner NDAA of Fiscal Year 2007 (Pub. L. 109-364) and section 867 
of the Duncan Hunter NDAA of Fiscal Year 2009 (Pub. L. 110-417). This 
rule requires agencies to--
    (1) Link award fees to acquisition objectives in the areas of cost, 
schedule, and technical performance;
    (2) Clarify that a base fee amount greater than zero may be 
included in a cost plus award fee type contract at the discretion of 
the contracting officer;
    (3) Prescribe narrative ratings that will be utilized in award fee 
    (4) Prohibit the issuance of award fees for a rating period if the 
contractor's performance is judged to be below satisfactory;
    (5) Conduct a risk and cost benefit analysis and consider the 
results of the analysis when determining whether to use an award-fee 
type contract or not;
    (6) Include specific content in the award-fee plans; and
    (7) Prohibit the rolling over of unearned award fees to subsequent 
rating periods.
    This FAR change will integrate where appropriate, FAR part 7, 
Acquisition Planning, and FAR part 16, Contract Types, to improve 
agency use and decision making when using incentive contracts.

Item VII--National Response Framework (FAR Case 2009-003)

    This final rule amends the FAR part 18 to remove all references to 
the National Response Plan (NRP) and Incidents of National 
Significance. In January 2008, FEMA, a component within the DHS, 
reissued the NRP as the National Response Framework (NRF). With the 
reissuance, the term ``Incidents of National Significance'' was 
eliminated. The changes became effective on March 22, 2008. Both the 
NRP and the term ``Incidents of National Significance'' are now 
    This rule is informational and represents minor updates for 
consistency with FEMA references.
    FEMA provides a link at their website for Frequently Asked 
Questions that explain the rationale for and the changes to the NRF.
    This rule does not have a significant impact on Government or any 
automated systems.

Item VIII--Technical Amendments

    Editorial changes are made at FAR 5.102, 52.213-4, and 52.244-6.

    Dated: October 5, 2009.
Al Matera,
Director, Acquisition Policy Division.

Federal Acquisition Circular

    Federal Acquisition Circular (FAC) 2005-37 is issued under the 
authority of the Secretary of Defense, the Administrator of General 
Services, and the Administrator for the National Aeronautics and Space 
    Unless otherwise specified, all Federal Acquisition Regulation 
(FAR) and other directive material contained in FAC 2005-37 is 
effective October 14, 2009, except for Item VII, which is effective 
November 13, 2009.

    Dated: October 5, 2009.
Shay D. Assad,
Director, Defense Procurement and Acquisition Policy.

    Dated: October 2, 2009.
David A. Drabkin,
Senior Procurement Executive, Office of Acquisition Policy, U.S. 
General Services Administration.

    Dated: October 6, 2009.
Leigh Pomponio,
Procurement Analyst, National Aeronautics and Space Administration.
[FR Doc. E9-24551 Filed 10-13-09; 8:45 am]