[Federal Register Volume 76, Number 212 (Wednesday, November 2, 2011)]
[Rules and Regulations]
[Pages 68037-68039]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-27788]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 25

[FAC 2005-54; FAR Case 2009-041; Item VII; Docket 2010-0105, Sequence 
1]
RIN 9000-AL65


Federal Acquisition Regulation; Sudan Waiver Process

AGENCIES: 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 revise the prohibition on 
contracting with entities that conduct restricted business operations 
in Sudan. This rule adds specific criteria including foreign policy 
aspects that an agency must address when applying to the President or 
his appointed designee for a waiver of the prohibition on awarding a 
contract to a contractor that conducts restricted business operations 
in Sudan. The rule also describes the consultation process that will be 
used by the Office of Federal Procurement Policy (OFPP) in support of 
the waiver request review.

DATES: Effective Date: December 2, 2011.

FOR FURTHER INFORMATION CONTACT: Cecelia L. Davis, Procurement Analyst, 
at (202) 219-0202, for clarification of content. For information 
pertaining to status or publication schedules, contact the FAR 
Secretariat at (202) 501-4755. Please cite FAC 2005-54, FAR Case 2009-
041.

SUPPLEMENTARY INFORMATION:

I. Background

    DoD, GSA, and NASA published a proposed rule in the Federal 
Register at 75 FR 62069 on October 7, 2010, to revise FAR 25.702, 
Prohibition on contracting with entities that conduct restricted 
business operations in Sudan, to add specific criteria including 
foreign policy aspects that an agency must address when applying to the 
President or his appointed designee for a waiver of the prohibition on 
awarding a contract to a contractor that conducts restricted business 
operations in Sudan. The rule also describes the consultation process 
that will be used by OFPP in support of the waiver review. No comments 
were received by the close of

[[Page 68038]]

the public comment period on December 6, 2010.
    DoD, GSA, and NASA published a final rule, FAR Case 2008-004, 
Prohibition on Restricted Business Operations in Sudan and Imports from 
Burma, in the Federal Register at 74 FR 40463 on August 11, 2009, 
amending the FAR to implement section 6 of the Sudan Accountability and 
Divestment Act of 2007 (the Act), Public Law 110-174.
    Section 6(a) of the Act requires that each contract entered into by 
an Executive agency include a certification that the contractor does 
not conduct certain business operations in Sudan as described in 
section 3(d) of the Act. Pursuant to section 6(c), the President may 
waive this certification requirement on a case-by-case basis if the 
President determines and certifies to the appropriate congressional 
committees that it is in the national interest to do so.
    Section 6 of the Act was implemented in the FAR but did not include 
a waiver consultation process and specific criteria for the waiver 
request. With the addition of these changes, the FAR will provide 
consistent guidance on specific criteria that must be included in the 
waiver request for consideration, and establish a consultation process 
to ensure all waiver requests are reviewed by the appropriate agency 
experts.
    OFPP will be required to consult with the President's National 
Security Council, Office of African Affairs and the Department of State 
Sudan Office and Sanctions Office on foreign policy matters relevant to 
the waiver request and include this information in the recommendation 
to the President. All waiver requests must clearly explain why the 
product or service must be procured from the offeror for which the 
waiver is requested and why it is in the national interest to waive the 
statutory prohibition against contracting with an offeror that conducts 
restricted business operations in Sudan. In addition, the waiver 
request must address any humanitarian efforts engaged in by the 
offeror, the human rights impact of doing business with that offeror, 
and the extent of the offeror's business operations in Sudan. All of 
the information required to be included in the waiver request will be 
considered in determining whether to recommend that the President waive 
the prohibition.
    Additionally, individual and class waiver requests will be 
considered for a specific contract or class of contracts, as long as 
the waiver request has been reviewed and cleared by the agency head 
prior to submitting it to OFPP and the request includes the appropriate 
waiver information specified at FAR 25.702-4(c)(3). However, a waiver 
will not be issued for an indefinite period of time, and may be 
cancelled, if warranted.
    In accordance with section 6 of the Act, the Administrator of OFPP 
is required to submit semiannual reports, on April 15th and October 
15th, to Congress, on waivers approved by the President.

II. Executive Orders 12866 and 13563

    Executive Orders (E.O.s) 12866 and 13563 direct agencies to assess 
all costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). E.O. 
13563 emphasizes the importance of quantifying both costs and benefits, 
of reducing costs, of harmonizing rules, and of promoting flexibility. 
This is a significant regulatory action and, therefore, was subject to 
review under section 6(b) of E.O. 12866, Regulatory Planning and Review 
dated September 30, 1993. This rule is not a major rule under 5 U.S.C. 
804.

III. 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 the rule does not 
impose any additional requirements on small businesses.

IV. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 25

    Government procurement.

    Dated: October 21, 2011.
Laura Auletta,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.

    Therefore, DoD, GSA, and NASA amend 48 CFR part 25 as set forth 
below:

PART 25--FOREIGN ACQUISITION

0
1. The authority citation for 48 CFR part 25 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).

0
2. Amend section 25.702-4 by revising paragraph (b); and adding 
paragraphs (c) and (d) to read as follows:


25.702-4   Waiver.

* * * * *
    (b) An agency seeking waiver of the requirement shall submit the 
request to the Administrator of the Office of Federal Procurement 
Policy (OFPP), allowing sufficient time for review and approval. Upon 
receipt of the waiver request, OFPP shall consult with the President's 
National Security Council, Office of African Affairs, and the 
Department of State Sudan Office and Sanctions Office to assess foreign 
policy aspects of making a national interest recommendation.
    (c) Agencies may request a waiver on an individual or class basis; 
however, waivers are not indefinite and can be cancelled if warranted.
    (1) A class waiver may be requested only when the class of supplies 
is not available from any other source and it is in the national 
interest.
    (2) Prior to submitting the waiver request, the request must be 
reviewed and cleared by the agency head.
    (3) All waiver requests must include the following information:
    (i) Agency name, complete mailing address, and point of contact 
name, telephone number, and email address;
    (ii) Offeror's name, complete mailing address, and point of contact 
name, telephone number, and email address;
    (iii) Description/nature of product or service;
    (iv) The total cost and length of the contract;
    (v) Justification, with market research demonstrating that no other 
offeror can provide the product or service and stating why the product 
or service must be procured from this offeror, as well as why it is in 
the national interest for the President to waive the prohibition on 
contracting with this offeror that conducts restricted business 
operations in Sudan, including consideration of foreign policy aspects 
identified in consultation(s) pursuant to 25.702-4(b);
    (vi) Documentation regarding the offeror's past performance and 
integrity (see the Past Performance Information Retrieval System 
including the Federal Awardee Performance Information and Integrity 
System at http://www.ppirs.gov and any other relevant information);
    (vii) Information regarding the offeror's relationship or 
connection with

[[Page 68039]]

other firms that conduct prohibited business operations in Sudan; and
    (viii) Any humanitarian efforts engaged in by the offeror, the 
human rights impact of doing business with the offeror for which the 
waiver is requested, and the extent of the offeror's business 
operations in Sudan.
    (d) The consultation in 25.702-4(b) and the information in 25.702-
4(c)(3) will be considered in determining whether to recommend that the 
President waive the requirement of subsection 25.702-2. In accordance 
with section 6(c) of the Sudan Accountability and Divestment Act of 
2007, OFPP will semiannually submit a report to Congress, on April 15th 
and October 15th, on the waivers granted.

[FR Doc. 2011-27788 Filed 11-1-11; 8:45 am]
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