[Federal Register Volume 81, Number 31 (Wednesday, February 17, 2016)]
[Proposed Rules]
[Pages 8031-8033]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-03044]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Part 31
[FAR Case 2015-016; Docket 2015-0016; Sequence 1]
RIN 9000-AM97
Federal Acquisition Regulation; Prohibition on Reimbursement for
Congressional Investigations and Inquiries
AGENCY: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Proposed rule.
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SUMMARY: DoD, GSA, and NASA are proposing to amend the Federal
Acquisition Regulation (FAR) to implement section 857 of the Carl Levin
and Howard P. `Buck' McKeon National Defense Authorization Act for
Fiscal Year 2015. This section provides additional requirements
relative to the allowability of costs incurred by a contractor in
connection with a congressional investigation or inquiry.
DATES: Interested parties should submit written comments to the
Regulatory Secretariat on or before April 18, 2016 to be considered in
the formulation of a final rule.
ADDRESSES: Submit comments in response to FAR Case 2015-016 by any of
the following methods:
Regulations.gov: http://www.regulations.gov. Submit
comments via the Federal eRulemaking portal by searching for ``FAR Case
2015-016''. Select the link ``Comment Now'' that corresponds with FAR
Case 2015-016. Follow the instructions provided at the ``Comment Now''
screen. Please include your name, company name (if any), and ``FAR Case
2015-016'' on your attached document.
Mail: General Services Administration, Regulatory
Secretariat (MVCB), ATTN: Ms. Flowers, 1800 F Street NW., 2nd Floor,
Washington, DC 20405.
Instructions: Please submit comments only and cite FAR Case 2015-
016, in all correspondence related to this case. Comments received
generally will be posted without change to http://www.regulations.gov,
including any personal and/or business confidential information
provided. To confirm receipt of your comment(s), please
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check www.regulations.gov, approximately two to three days after
submission to verify posting (except allow 30 days for posting of
comments submitted by mail).
FOR FURTHER INFORMATION CONTACT: Ms. Kathlyn Hopkins, Procurement
Analyst, at 202-969-7226 for clarification of content. For information
pertaining to status or publication schedules, contact the Regulatory
Secretariat Division at 202-501-4755. Please cite FAR case 2015-016.
SUPPLEMENTARY INFORMATION:
I. Background
Section 857 of the Carl Levin and Howard P. `Buck' McKeon National
Defense Authorization Act for Fiscal Year 2015 (Pub. L. 113-291)
amended 10 U.S.C. 2324(e)(1) to disallow costs incurred by a contractor
in connection with a Congressional investigation or inquiry into an
issue that is the subject matter of a proceeding resulting in a
disposition as described in 10 U.S.C. 2324(k)(2).
While Section 857 only applies to contracts with the DoD, NASA, and
the Coast Guard, for the purpose of promoting consistency in the
accounting systems of Federal contractors, it was decided to apply the
section's requirements to all agencies subject to the FAR.
Additionally, conforming language on unallowable costs is proposed
for FAR 31.603-16, as well as for 31.603-15 (to update language
associated with Whistleblower complaints).
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 Executive Order 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
DoD, GSA and NASA do not expect this proposed rule to 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 merely disallows the costs incurred in the
extremely rare instances when a contractor incurs costs in connection
with a congressional investigation or inquiry into an issue regarding a
criminal, civil, or administrative proceeding relating to a violation
of, or failure to comply with, a Federal or State statute or
regulation. However, an initial regulatory flexibility analysis (IRFA)
has been prepared consistent with 5 U.S.C. 603. The analysis is
summarized as follows:
The proposed rule will be manifested as a cost principle to
which only select small businesses are subject. An analysis of
contracts awarded during Fiscal Year 2014 revealed that fewer than
200 small businesses were performing contracts subject to FAR 31.
Given the small segment of the small business population that could
be impacted by the rule, in concert with the low likelihood of the
conditions being met, the impact on small businesses is
insignificant.
The Regulatory Secretariat Division has submitted a copy of the
IRFA to the Chief Counsel for Advocacy of the Small Business
Administration. A copy of the IRFA may be obtained from the Regulatory
Secretariat Division. DoD, GSA and NASA invite comments from small
business concerns and other interested parties on the expected impact
of this rule on small entities. DoD, GSA, and NASA will also consider
comments from small entities concerning the existing regulations in
subparts affected by the rule in accordance with 5 U.S.C. 610.
Interested parties must submit such comments separately and should cite
5 U.S.C. 610 (FAR Case 2015-016), in correspondence.
C. Paperwork Reduction Act
The rule does not contain any information collection requirements
that require the approval of the Office of Management and Budget under
44 U.S.C. chapter 35.
List of Subject in 48 CFR Part 31
Government procurement.
William Clark,
Director, Office of Government-wide Acquisition Policy, Office of
Acquisition Policy, Office of Government-wide Policy.
Therefore, DoD, GSA, and NASA propose amending 48 CFR part 31 as
set forth below:
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
0
1. The authority citation for 48 CFR part 31 continues to read as
follows:
Authority: 40 U.S.C. 121(c); 10 U.S.C. chapter 137; and 51
U.S.C. 20113.
0
2. Amend section 31.205-47 by--
0
a. In paragraph (a)--
0
i. Removing the words ``Fraudmeans--'' and adding ``Fraud means--'' in
its place;
0
ii. Removing the words ``Penalty, does'' and adding ``Penalty does'' in
its place; and
0
iii. Removing the words ``Proceeding, includes'' and adding
``Proceeding includes'' in its place;
0
b. Removing from the introductory text of paragraph (b) ``employees),''
and adding ``employees);'' in its place; and
0
c. Adding paragraph (f)(9).
The addition reads as follows:
31.205-47 Costs related to legal and other proceedings.
* * * * *
(f) * * *
(9) A Congressional investigation or inquiry into an issue that is
the subject matter of a proceeding resulting in a disposition as
described in paragraphs (b)(1) through (5) of this section (see 10
U.S.C. 2324(e)(1)(Q)).
* * * * *
0
3. Amend section 31.603 by revising paragraphs (b) introductory text
and (b)(15) and adding paragraph (b)(16) to read as follows:
31.603 Requirements.
* * * * *
(b) Agencies are not expected to place additional restrictions on
individual items of cost. However, under 10 U.S.C. 2324, 41 U.S.C.
4304, 31 U.S.C. 3730, and 41 U.S.C. 4310, the following costs are
unallowable:
* * * * *
(15) Unless any of the exceptions at 31.205-47(c), (d) or (e)
apply, costs incurred by a contractor in connection with any criminal,
civil, or administrative proceedings that result in dispositions as
described in 10 U.S.C. 2324(k) or 41 U.S.C. 4310 commenced by a
Federal, State, local, or foreign government, or by a contractor or
subcontractor employee submitting a whistleblower complaint of reprisal
in accordance with 41 U.S.C. 4712 or 10 U.S.C. 2409, for violation of,
or a failure to comply with, law or regulation by the contractor
(including its agents or employees); or costs incurred in connection
with any proceeding brought by a third party in the name of the United
States under the False Claims Act, 31 U.S.C. 3730.
(16) Costs incurred in connection with a Congressional
investigation or inquiry into an issue that is the subject matter of a
proceeding resulting in a disposition as described in 10 U.S.C. 2324(k)
or 41 U.S.C. 4310, unless any of
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the exceptions at 31.205-47(c), (d) or (e) apply.
[FR Doc. 2016-03044 Filed 2-16-16; 8:45 am]
BILLING CODE 6820-EP-P