[Federal Register Volume 78, Number 120 (Friday, June 21, 2013)]
[Rules and Regulations]
[Pages 37698-37700]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-14621]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR 2013-0078; Sequence 3]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-67; Small Entity Compliance Guide

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

ACTION: Small Entity Compliance Guide.

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SUMMARY: This document is issued under the joint authority of DOD, GSA, 
and NASA. This Small Entity Compliance Guide has been prepared in 
accordance with section 212 of the Small Business Regulatory 
Enforcement Fairness Act of 1996. It consists of a summary of the rule 
appearing in Federal Acquisition Circular (FAC) 2005-67, which amends 
the Federal Acquisition Regulation (FAR). An asterisk (*) next to a 
rule indicates that a regulatory flexibility analysis has been 
prepared. Interested parties may obtain further information regarding 
this rule by referring to FAC 2005-67, which precedes this document. 
These documents are also available via the Internet at http://www.regulations.gov.

DATES: June 21, 2013.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
the analyst whose name appears in the table below. Please cite FAC 
2005-67 and the FAR case number. For information pertaining to status 
or publication schedules, contact the Regulatory Secretariat at 202-
501-4755.

                      List of Rules in FAC 2005-67
------------------------------------------------------------------------
     Item             Subject           FAR case           Analyst
------------------------------------------------------------------------
* I...........  Contractors                2011-029  Jackson.
                 Performing Private
                 Security Functions
                 Outside the United
                 States.
II............  Contracting                2013-004  Jackson.
                 Officer's
                 Representative.
III...........  System for Award           2012-033  Glover.
                 Management Name
                 Change, Phase 1
                 Implementation.
* IV..........  Interagency                2012-010  Corrigan.
                 Acquisitions:
                 Compliance by
                 Nondefense
                 Agencies with
                 Defense
                 Procurement
                 Requirements.
* V...........  Terms of Service           2013-005  Petrusek.
                 and Open-Ended
                 Indemnification,
                 and
                 Unenforceability
                 of Unauthorized
                 Obligations
                 (Interim).
* VI..........  Price Analysis             2012-018  Chambers.
                 Techniques.
* VII.........  Contracting with           2013-010  Morgan.
                 Women-owned Small
                 Business Concerns
                 (Interim).
VIII..........  Deletion of Report         2013-008  Davis.
                 to Congress on
                 Foreign-
                 Manufactured
                 Products.
IX............  Free Trade                 2012-027  Davis.
                 Agreement (FTA)-
                 Panama.
X.............  Updated                    2011-019  Chambers.
                 Postretirement
                 Benefit (PRB)
                 References.
XI............  Technical
                 Amendments.
------------------------------------------------------------------------


[[Page 37699]]


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 numbers and subjects set forth in the documents 
following these item summaries. FAC 2005-67 amends the FAR as specified 
below:

Item I--Contractors Performing Private Security Functions Outside the 
United States (FAR Case 2011-029)

    DoD, GSA, and NASA are issuing a final rule amending the FAR to 
implement Governmentwide requirements contained in section 862 of the 
National Defense Authorization Act (NDAA) for Fiscal Year (FY) 2008 
(Pub. L. 110-181), as amended by section 853 of the NDAA for FY 2009 
(Pub. L. 110-417) and sections 831 and 832 of the NDAA for FY 2011 
(Pub. L. 111-383). See 10 U.S.C. 2302 Note. These statutes establish 
minimum processes and requirements for the selection, accountability, 
training, equipping, and conduct of personnel performing private 
security functions outside the United States.

Item II--Contracting Officer's Representative (FAR Case 2013-004)

    This final rule amends the FAR to improve contract surveillance by 
clarifying the contracting officer's representative (COR) 
responsibilities in FAR 1.602-2(d). In addition, a corresponding change 
is also made at FAR 7.104(e). This case originated from a Department of 
Defense (DoD) Panel on Contracting Integrity recommendation. The DoD 
Panel on Contracting Integrity, an internal DoD panel, consists of 
senior-level DoD officials from across DoD working to review progress 
made by DoD to eliminate areas of vulnerability of the defense 
contracting system that allow fraud, waste, and abuse to occur, and 
recommend changes in law, regulations, and policy to eliminate the 
areas of vulnerability. In order to improve the contracting 
environment, this rule provides additional explanation in the FAR to 
ensure that CORs understand their duties and responsibilities to survey 
contractor performance. This final rule is not required to be published 
for public comment because it only involves internal Government 
procedures regarding the appointment of CORs and the clarification of 
COR responsibilities, and has neither a significant effect beyond the 
internal operation procedures of the agency issuing the policy, 
regulation, procedure or form, nor has a significant cost or 
administrative impact on contractors or offerors.

Item III--System for Award Management Name Change, Phase 1 
Implementation (FAR Case 2012-033)

    This final rule amends the FAR by updating references and names to 
conform to the System for Award Management (SAM) designation. The SAM 
is a Federal Government owned and operated free Web site that 
consolidates the capabilities in certain legacy systems that are used 
by Federal officials in the procurement and awards process. This rule 
incorporates language that will transition the Central Contractor 
Registration (CCR) database, the Excluded Parties List System (EPLS), 
and the Online Representations and Certifications Application (ORCA) to 
the SAM designation. This final rule also makes a number of minor 
additional conforming changes, such as updates to definitions.

Item IV--Interagency Acquisitions: Compliance by Nondefense Agencies 
With Defense Procurement Requirements (FAR Case 2012-010)

    This final rule adopts with minor changes an interim rule published 
in the Federal Register at 77 FR 69720 on November 20, 2012. The 
interim rule amended the FAR to implement section 801 of Pub. L. 110-
181, as amended (10 U.S.C. 2304 Note). Section 801 requires compliance 
certifications by nondefense agencies that purchase on behalf of the 
Department of Defense (DoD), and clarifies which DoD laws and 
regulations apply. The agencies must comply with new FAR subpart 17.7, 
in addition to complying with FAR subpart 17.5. To provide 
clarification for small business and contracting officers, existing 
policy for small business goal credit for assisted acquisitions was 
added by the interim rule to section FAR 4.603(c).

Item V--Terms of Service and Open-Ended Indemnification, and 
Unenforceability of Unauthorized Obligations (FAR Case 2013-005) 
(Interim)

    This interim rule amends the FAR to address concerns raised in an 
opinion from the U.S. Department of Justice Office of Legal Counsel 
that determined the Anti-Deficiency Act is violated when a Government 
contracting officer or other employee with the authority to bind the 
Government agrees, without statutory authorization or other exception, 
to an open-ended, unrestricted indemnification clause. This rule 
clarifies for the public that an End User License Agreement (EULA), 
Terms of Service (TOS), or similar agreement, containing an 
indemnification provision, is unenforceable and nonbinding against the 
Government and Government--authorized end-users. The rule contains a 
new clause that applies to all solicitations and contracts and 
automatically applies to micro-purchases, including those made with the 
Governmentwide purchase card.

Item VI--Price Analysis Techniques (FAR Case 2012-018)

    This final rule amends the FAR to clarify a reference used in FAR 
15.404-1(b)(2)(i). FAR 15.404-1(b)(2) delineates the various price 
analysis techniques (to ensure a fair and reasonable price) with 
15.404-1(b)(2)(i) being the comparison of proposed prices received from 
multiple offerors in response to a solicitation. The current reference 
in this section (FAR 15.403-1(c)(1)) was too broad; thus, this final 
rule changes this reference to 15.403-1(c)(1)(i), which precisely 
aligns the price analysis technique of comparing proposed prices in 
15.404-1(b)(2)(i) with the adequate price competition standard (for 
exceptions from certified cost or pricing data requirements) of 
comparing proposed prices from multiple offerors. Small businesses are 
not impacted by this final rule because this rule merely clarifies the 
reference, changing it to cite FAR 15.403-1(c)(1)(i) (rather than the 
more generalized 15.403-1(c)(1)) at 15.404-1(b)(2)(i), which describes 
the use of the price analysis technique of comparing proposed prices 
from multiple offerors in order to establish a fair and reasonable 
price.

Item VII--Contracting With Women-Owned Small Business Concerns (FAR 
Case 2013-010) (Interim)

    This interim rule amends FAR 19.1505 to remove the dollar 
limitation for set-asides for economically disadvantaged women-owned 
small business (EDWOSB) concerns or women-owned small business (WOSB) 
concerns eligible under the Women-owned Small Business (WOSB) Program. 
This change implements section 1697 of the NDAA for FY 2013, Public Law 
112-239, which amended section 8(m) of the Small Business Act, (15 
U.S.C. 637(m)).
    As a result, contracting officers may set aside acquisitions for 
competition restricted to EDWOSB concerns or WOSB concerns eligible 
under the WOSB Program at any dollar level above the micro-purchase 
threshold, provided the other requirements for a set-aside under the 
WOSB Program are met.

[[Page 37700]]

Item VIII--Deletion of Report to Congress on Foreign-Manufactured 
Products (FAR Case 2013-008)

    This final rule amends the FAR to eliminate an obsolete 
Congressional reporting requirement imposed by the United States Troops 
Readiness, Veterans' Care, Katrina Recovery, and Iraq Accountability 
Appropriations Act, 2007 (41 U.S.C. 8302(b)(1)).
    This Act required these reports to Congress for Fiscal Year 2007 
through Fiscal Year 2011 on acquisitions of end products manufactured 
outside the United States. This report to Congress is no longer 
required but the collection of the data in Federal Procurement Data 
System is still required (see FAR 52.225-18, Place of Manufacture). 
This final rule only affects the internal operating procedures of the 
Government.

Item IX--Free Trade Agreement (FTA)--Panama (FAR Case 2012-027)

    This final rule adopts without change an interim rule published 
November 20, 2012, which implemented a new Free Trade Agreement with 
Panama (see the United States-Panama Trade Promotion Agreement 
Implementation Act (Pub. L. 112-43) (19 U.S.C. 3805 note).
    This Trade Promotion Agreement is a free trade agreement that 
provides for mutually non-discriminatory treatment of eligible products 
and services from Panama. This final rule is not expected to have a 
significant economic impact on a substantial number of small entities.

Item X--Updated Postretirement Benefit (PRB) References (FAR Case 2011-
019)

    This final rule amends FAR 31.205-6(o)(2)(iii)(A)(1) to remove 
references to paragraphs 110, 112, and 113 of the now superseded 
Financial Accounting Standard (FAS) 106, which were deleted in the 
Financial Accounting Standards Board's (FASB's) Accounting Standards 
Codification (ASC) of generally accepted accounting principles (GAAP) 
and replaces them with explicit criteria that are their functional 
equivalent. The FAR referenced GAAP to provide criteria for determining 
the allowability of the transition obligation, when converting from 
pay-as-you-go accounting for postretirement benefits (PRBs) to an 
accrual method of accounting for the purposes of Government contract 
cost accounting.
    This final rule will have a minimal economic impact on small 
businesses because it does not change the FAR substantively.

Item XI--Technical Amendments

    Editorial changes are made at FAR 8.703, 8.714, 52.204-8, and 
52.204-10.

    Dated: June 13, 2013.
William Clark,
Acting Director, Office of Governmentwide Acquisition Policy, Office of 
Acquisition Policy, Office of Governmentwide Policy.
[FR Doc. 2013-14621 Filed 6-20-13; 8:45 am]
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