[Federal Register Volume 74, Number 197 (Wednesday, October 14, 2009)]
[Rules and Regulations]
[Pages 52851-52852]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-24568]





48 CFR Parts 12 and 52

[FAC 2005-37; FAR Case 2008-026; Item III; Docket 2009-0013, Sequence 
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: Final rule.


SUMMARY: The Civilian Agency Acquisition Council and the Defense 
Acquisition Regulations Council (Councils) have adopted as final, 
without change, 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) which allows the 
Government Accountability Office to interview current contractor 
employees during the audit of the contractor's records.

DATES: Effective Date: October 14, 2009.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Edward Loeb, Director, Contract Policy Division at (202) 501-0650. 
For information pertaining to status or publication schedules, contact 
the Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-37, 
FAR case 2008-026.


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, were 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).
    DoD, GSA, and NASA published an interim rule with a request for 
comments in the Federal Register at 74 FR 14649 on March 31, 2009. No 
comments were received. The interim rule is converted to a final rule 
without change.
    This is a significant regulatory action and, therefore, was subject 
to review under section 6(b) 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 Department of Defense, the General Services Administration, and 
the National Aeronautics and Space Administration certify that this 
final rule will not 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 only a small number of 
small businesses are audited by the Government Accountability Office 
(GAO). Currently

[[Page 52852]]

many GAO audits of small business contractors include contractor 
employee interviews. This Act is designed to cover those incidents in 
which the contractor does not voluntarily make the contractor employees 
available for interviews. Therefore, it is not anticipated that 
interviewing any current employee regarding such contract transactions 
will have a significant impact.

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.

List of Subjects in 48 CFR Parts 12 and 52

    Government procurement.

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

Interim Rule Adopted as Final Without Change

Accordingly, the interim rule amending 48 CFR parts 12 and 52, which 
was published in the Federal Register at 74 FR 14649 on March 31, 2009, 
is adopted as a final rule without change.

[FR Doc. E9-24568 Filed 10-13-09; 8:45 am]