[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Proposed Rules]
[Pages 82575-82576]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32895]



  Federal Register / Vol. 75 , No. 250 / Thursday, December 30, 2010 / 
Proposed Rules  

[[Page 82575]]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Parts 4 and 52

[FAC 2005-48; FAR Case 2009-027; Item II; Docket 2010-0091, Sequence 1]
RIN 9000-AL60


Federal Acquisition Regulation; Personal Identity Verification of 
Contractor Personnel

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to provide additional regulatory 
coverage to reinforce the requirement of collecting from contractors 
all forms of Government-provided identification once they are no longer 
needed to support a contract.

DATES: Effective Date: January 31, 2011.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Mr. Michael Jackson, Procurement Analyst, at (202) 208-4949. For 
information pertaining to status or publication schedules, contact the 
Regulatory Secretariat at (202) 501-4755. Please cite FAC 2005-48, FAR 
Case 2009-027.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD Inspector General Audit Report No. D-2009-005, entitled 
``Controls Over the Contractor Common Access Card Life Cycle,'' 
addressed whether Government controls over contractor Common Access 
Cards (CAC) were in place and worked as intended. A ``CAC'' is the DoD 
term for a Personal Identity Verification (PIV) card. A PIV card is 
required in order to gain access to a Federal facility. The most 
prevalent issue of the audit report, and the one that DoD, GSA, and 
NASA are undertaking to resolve with this case, was that the CACs were 
not adequately accounted for after contract performance or completion.
    DoD, GSA, and NASA are amending the FAR by inserting new paragraphs 
(d)(1) and (d)(2) under FAR 4.1301, Policy. Paragraph (d)(1) provides 
policy on recovering PIVs. Paragraph (d)(1) requires that agency 
procedures ensure that Government contractors account for all forms of 
Government-provided identification issued to Government contractors 
under a contract, and return such identification to the issuing agency 
at the earliest of any of the following, unless otherwise determined by 
the agency: When no longer needed for contract performance; upon 
completion of a contractor employee's employment; or upon contract 
completion or termination. Paragraph (d)(2) authorizes the contracting 
officer to delay final payment under a contract if the contractor fails 
to comply with these requirements.
    DoD, GSA, and NASA are also modifying FAR clause 52.204-9, Personal 
Identity Verification of Contractor Personnel, to be consistent with 
FAR part 4.
    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 75 FR 28771 on May 24, 2010. Three respondents submitted 
four comments on the proposed rule, which are addressed below.
    Although none of the public comments received caused a change in 
the FAR text, the FAR text is changed in the final rule as follows:
     FAR 4.1301(d)(1) is revised to clarify that this section 
applies to agency procedures related to PIV card return.
     FAR 4.1301(d)(1) and 52.204-9(b) are revised to clarify 
that the rule applies when PIV cards are issued to contractor 
employees.
     FAR 52.204-9(d) is revised to clarify that the rule flows 
down to all subcontractor employees when they are required to have 
access to a Federally-controlled facility and/or routine access to a 
Federally-controlled information system.
     FAR 52.204-9(d) is also revised to clarify that the prime 
contractor is responsible for returning all subcontractor PIV cards 
that have been issued by an agency.

II. Discussion of Public Comments

A. Lost Cards

    Comment: Two respondents stated that they have concerns over what 
happens when a contractor claims to have lost an identity card and 
therefore cannot return it.
    Response: Each agency will establish policies for control of PIV 
cards. Some agencies, for example, may replace a lost card once, but 
costs for replacement of any subsequent lost PIV cards may be borne by 
the contractor. The respondent may be voicing concern that there is a 
potential for misuse and fraud with lost cards. DoD, GSA, and NASA 
recommend that agencies program the PIV cards to become inactive if 
they have not been used after a prolonged period of time.

B. Timing

    Comment: Another respondent expressed concern with waiting until 
the closeout period instead of taking care of the PIV cards at contract 
completion.
    Response: The FAR rule does not authorize waiting until the 
closeout period, but instead requires the contractor to take action as 
its employees leave, and again at contract completion. If the 
contractor fails to take action as its employees leave or at contract 
completion and the contracting officer does not follow up, then the 
contracting officer must reconcile the matter at contract closeout.

C. Contractor Involvement in Issuance Process

    Comment: Another respondent stated that contractor companies are 
not typically involved in the PIV card issuance process. Further, 
contractor responsibility for PIV card retrieval could be improved 
through involving the contractor/subcontractor in the PIV card issuance 
process.
    Response: The Defense Acquisition Regulation Council and the 
Civilian Agency Acquisition Council agree that PIV card retrieval could 
be improved if the contractor was notified when an employee is issued a 
PIV card. DoD, GSA, and NASA recommend that agencies amend their PIV 
card procedures, if they are not doing so already, to notify the 
contractor company when an agency issues a PIV card to a contractor 
employee. In addition, the rule has been revised to state that the 
prime contractor is responsible for the return of all PIV cards that 
have been issued to the subcontractor's employees by the agency.

D. Withholding Payment

    Comment: The same respondent had concerns about how long the 
Government may withhold payment for non-compliance. The respondent 
stated that the period of time that final payment may be delayed should 
be specified, e.g., ``not to exceed 30 days'' or ``pending satisfactory 
resolution of the non-compliance.''
    Response: It would be unwise to state a specific date such as ``not 
to exceed 30 days'' because the contractor may need a longer time to 
return the PIV card. Adding language like ``pending satisfactory 
resolution of the non-compliance'' is superfluous, as it is a given 
that the Government would only

[[Page 82576]]

hold final payment until the non-compliance has been resolved.

III. Executive Order 12866

    This is not a significant regulatory action and, therefore, is not 
subject to review under Section 6(b) of Executive Order 12866, 
Regulatory Planning and Review, dated September 30, 1993. This rule is 
not a major rule under 5 U.S.C. 804.

IV. Regulatory Flexibility Act

    DoD, GSA, and NASA 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 the requirements of the actions required and the clause 
are not significantly burdensome. Currently, it is a common business 
practice to have procedures in place to revoke and return PIV cards 
when no longer in use by the contractor.

V. 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.

List of Subjects in 48 CFR Parts 4 and 52

    Government procurement.

    Dated: December 22, 2010.
Millisa Gary,
Acting Director, Federal Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR parts 4 and 52 as set forth 
below:
0
1. The authority citation for 48 CFR parts 4 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 4-ADMINISTRATIVE MATTERS

0
2. Amend section 4.1301 by adding paragraph (d) to read as follows:


4.1301  Policy.

* * * * *
    (d)(1) Agency procedures for the return of Personal Identity 
Verification (PIV) products shall ensure that Government contractors 
account for all forms of Government-provided identification issued to 
Government contractor employees under a contract, i.e., the PIV cards 
or other similar badges, and shall ensure that contractors return such 
identification to the issuing agency as soon as any of the following 
occurs, unless otherwise determined by the agency:
    (i) When no longer needed for contract performance.
    (ii) Upon completion of a contractor employee's employment.
    (iii) Upon contract completion or termination.
    (2) The contracting officer may delay final payment under a 
contract if the contractor fails to comply with these requirements.

PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. Amend section 52.204-9 by revising the date of the clause; 
redesignating paragraph (b) as paragraph (d); adding a new paragraph 
(b); adding paragraph (c); and revising newly redesignated paragraph 
(d) to read as follows:


52.204-9  Personal Identity Verification of Contractor Personnel.

* * * * *

Personal Identity Verification of Contractor Personnel (JAN 2011)

* * * * *
    (b) The Contractor shall account for all forms of Government-
provided identification issued to the Contractor employees in 
connection with performance under this contract. The Contractor 
shall return such identification to the issuing agency at the 
earliest of any of the following, unless otherwise determined by the 
Government:
    (1) When no longer needed for contract performance.
    (2) Upon completion of the Contractor employee's employment.
    (3) Upon contract completion or termination.
    (c) The Contracting Officer may delay final payment under a 
contract if the Contractor fails to comply with these requirements.
    (d) The Contractor shall insert the substance of this clause, 
including this paragraph (d), in all subcontracts when the 
subcontractor`s employees are required to have routine physical 
access to a Federally-controlled facility and/or routine access to a 
Federally-controlled information system. It shall be the 
responsibility of the prime Contractor to return such identification 
to the issuing agency in accordance with the terms set forth in 
paragraph (b) of this section, unless otherwise approved in writing 
by the Contracting Officer.
(End of Clause)
[FR Doc. 2010-32895 Filed 12-29-10; 8:45 am]
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