[Federal Register Volume 66, Number 248 (Thursday, December 27, 2001)]
[Rules and Regulations]
[Pages 66984-66986]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 01-31301]
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DEPARTMENT OF DEFENSE
GENERAL SERVICES ADMINISTRATION
NATIONAL AERONAUTICS AND SPACE ADMINISTRATION
48 CFR Parts 9, 14, 15, 31, and 52
[FAC 2001-03; FAR Case 1999-010 (Stay); Item I]
RIN 9000-AI40
Federal Acquisition Regulation; Contractor Responsibility, Labor
Relations Costs, and Costs Relating to Legal and Other Proceedings
AGENCIES: Department of Defense (DoD), General Services Administration
(GSA), and National Aeronautics and Space Administration (NASA).
ACTION: Final rule; termination of stay of final rule.
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SUMMARY: The Federal Acquisition Regulatory Council (FAR Council)
published in the Federal Register at 65 FR 80255, December 20, 2000, a
final rule addressing contractor responsibility, labor relations costs,
and costs incurred in legal and other proceedings. After further
review, the FAR Council published an interim rule in the Federal
Register at 66 FR 17754, April 3, 2001, staying that rule. The FAR
Council intended the stay would last for 270 days from April 3, 2001,
until December 29, 2001, or until finalization of the proposed rule
(entitled ``Contractor Responsibility, Labor Relations Costs, and Costs
Relating to Legal and Other Proceedings--Revocation) that was published
in the Federal Register at 66
[[Page 66985]]
FR 17758, April 3, 2001, concurrently with the stay, whichever is
sooner.
The FAR Council requested comments on the FAR interim rule-stay on
the length of the stay. During the stay, the FAR text was restored to
the text as it existed before January 19, 2001. In a separate document
published concurrently with the interim rule-stay, the FAR Council
published the aforementioned proposed rule, requesting comments under
that FAR case on revoking the December 20, 2000, final rule.
This final rule terminates the stay.
DATES: Effective Date: December 27, 2001.
FOR FURTHER INFORMATION CONTACT: The FAR Secretariat, Room 4035, GS
Building, Washington, DC, 20405, (202) 501-4755, for information
pertaining to status or publication schedules. For clarification of
content, contact Mr. Ralph De Stefano, Procurement Analyst, at (202)
501-1758. Please cite FAC 2001-03, FAR case 1999-010 (stay).
SUPPLEMENTARY INFORMATION:
A. Background
1. The Final Rule
The FAR Council published a proposed rule amending FAR Parts 9 and
31 in the Federal Register at 64 FR 37360, July 9, 1999. In response to
the proposed rule, the FAR Council received more than 1500 letters.
After reviewing the public comments, the FAR Council decided to
republish the proposed rule with certain changes. The FAR Council
published a revised proposed rule amending FAR Parts 9, 14, 15, 31, and
52 in the Federal Register at 65 FR 40830, June 30, 2000. Over 300
public comments were received. The final rule, which was published in
the Federal Register at 65 FR 80255 on December 20, 2000, had an
effective date of January 19, 2001, 30 days from date of publication.
The final rule included the following revisions:
FAR Part 9
Added language stating that a satisfactory record of integrity and
business ethics includes satisfactory compliance with the law including
tax, labor and employment, environmental, antitrust, and consumer
protection laws (FAR 9.104-1(d)). Required contracting officers to
consider all relevant credible information but stated that the greatest
weight must be given to offenses adjudicated within the past three
years.
FAR Part 14 and 15
Directed contracting officers to notify offerors if the offerors
were excluded based on a nonresponsibility determination.
FAR Part 31
At FAR 31.205-21, made unallowable those costs incurred for
activities that assist, promote, or deter unionization.
At FAR 31.305-47, made unallowable those costs incurred in civil or
administrative proceedings brought by a government where the contractor
violated, or failed to comply with a law or regulation.
FAR Part 52
At FAR 52.209-5, amended the previous certification to require
offerors to certify to additional violations (violations of tax, labor
and employment, environmental, antitrust, or consumer protection laws)
adjudicated within the last three years. It was a check-the-box
certification. An offeror would have to provide additional detailed
information only upon the request of the contracting officer.
At 52.212-3(h), made an equivalent change for the certification for
commercial items.
2. The Lawsuit
The Business Roundtable, Chamber of Commerce of the United States,
National Association of Manufacturers, Associated General Contractors
of America, Inc., and Associated Builders and Contractors, Inc., filed
a lawsuit in the United States District Court for the District of
Columbia on December 22, 2000, seeking to overturn the final rule.
3. Letters
The FAR Council had received letters from major industry
associations representing thousands of firms, and from Congressional
Representatives, requesting an effective date extension of at least six
months. Industry concerns extend especially to contractors' ability to
comply with the rule's new certification requirements, which apply to
procurements over $100,000.
4. Action
The FAR Council reassessed the advantages and disadvantages of the
changes made by the December 20, 2000, final rule, to determine if the
benefits of the rule are outweighed by the burdens imposed by the rule.
In this regard, it was not clear to the FAR Council that there was a
justification for including the added categories of covered laws in the
rule and its implementing certification, that the rule provided
contracting officers with sufficient guidelines to prevent arbitrary or
otherwise abusive implementation, or that the final rule was justified
from a cost-benefit perspective. In a proposed rule published
concurrently with the interim rule-stay, the FAR Council requested
public comments on revoking the final rule. In the interim rule-stay,
the FAR Council determined that the 30-day effective date did not give
contractors, and the Government, sufficient time to meet the new
obligations and responsibilities imposed by the final rule. Government
contracting officers did not have sufficient training. Offerors did not
have sufficient time to establish a system to track compliance with
applicable laws and keep it current, in order to be able to properly
fill out the certification. Although there was language in the
noncommercial items certification, which assured contractors that no
system of records needed to be established to render the certification
in good faith, this language is not found in the commercial items
certification. There are criminal penalties for a false certification
(18 U.S.C. 1001). The FAR Council recognized that it will take more
time than it anticipated for businesses to put the systems in place.
Therefore, the FAR Council decided to stay the final rule of December
20, 2000. The FAR Council intended the stay to last for 270 days from
the date of publication of the interim rule until December 29, 2001, or
until finalization of the proposed rule that was published concurrently
with the interim rule-stay, whichever is sooner.
The final rule had only been in effect since January 19, 2001.
There had not been time for the public to be in a position of reliance
upon the rule's existence. The previous FAR sections that were in
effect, such as the previous version of the certification, were
restored by this interim rule-stay.
The requirement that contractors must be responsible is statutory,
and the stay did not relieve offerors of the requirement to have a
satisfactory record of integrity and business ethics. Contracting
officers continued to have the authority and duty to make
responsibility decisions. Agency debarring officials continued to have
the authority and duty to make determinations whether to suspend and
debar a contractor. The Government still needed the information
contained in the previous certifications, which covered such things as
whether the contractor or its principals are presently debarred, or had
a felony conviction for contract fraud.
The stay was not intended to be a statement that violations of the
additional laws discussed in the December 20, 2000, rule could not have
[[Page 66986]]
been considered in the past, or could not be considered in the future,
by contracting officers or agency debarring officials.
The FAR Council invited comments on the two rules. In the interim
rule-stay, FAR Case 1999-010, comments were requested on the length of
the stay. Ninety-eight public comments were received. Ninety-one public
comments, 93 percent of the public comments, generally supported the
interim rule-stay. All comments were considered in the finalization of
the interim rule-stay. The FAR Council has determined to finalize the
stay to terminate with the publication of the finalization of the
accompanying proposed rule revoking the December rule. In an
accompanying final rule, FAR case 2001-014, published concurrently with
this rule, the final rule revokes the December 2000 rule.
When staying Code of Federal Regulations text, if the previous text
is restored, the Federal Register requires different numbering from the
stayed text. The stayed text uses the numbering that was published in
Federal Acquisition Circular 97-21. The revised numbering of the
restored text is not a substantive change. Terminating the stay
reverses this process and is also not a substantive change.
This is a significant rule and was subject to Office of Management
and Budget 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.
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 the action terminates
stayed FAR revisions implemented under FAR case 1999-010 published in
the Federal Register on December 20, 2000 (65 FR 80255), that did not
have a significant economic impact on a substantial number of small
entities.
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.
3501, et seq.
List of Subjects in 48 CFR Parts 9, 14, 15, 31, and 52
Government procurement.
Dated: December 14, 2001.
Gloria M. Sochon,
Acting Director, Acquisition Policy Division.
Accordingly, the interim rule (stay) published in the Federal
Register at 66 FR 17754, April 3, 2001, is terminated, and DoD, GSA,
and NASA further amend 48 CFR parts 9, 14, 15, 31, and 52 as set forth
below:
1. The authority citation for 48 CFR parts 9, 14, 15, 31, and 52
continues to read as follows:
Authority: 40 U.S.C. 486(c); 10 U.S.C. chapter 137; and 42
U.S.C. 2473(c).
PART 9--CONTRACTOR QUALIFICATIONS
9.103 [Amended]
2. Amend section 9.103 by removing paragraph (c); and by
redesignating paragraph (d) as paragraph (c).
9.104-1 [Amended]
3. Amend section 9.104-1 by removing paragraph (e); and by
redesignating paragraphs (f), (g), and (h) as (e), (f), and (g),
respectively.
PART 14--SEALED BIDDING
14.404-2 [Amended]
4. Amend section 14.404-2 by removing paragraph (j); and by
redesignating paragraphs (k), (l), and (m) as (j), (k), and (l),
respectively.
PART 15--CONTRACTING BY NEGOTIATION
15.503 [Amended]
5. Amend section 15.503 by removing paragraph (a)(2), and by
redesignating paragraph (a)(3) as (a)(2).
PART 31--CONTRACT COST PRINCIPLES AND PROCEDURES
31.205-47 [Amended]
6. Amend section 31.205-47 in paragraph (a) by removing the
definition ``Fraud''; by removing paragraph (b)(3); and by
redesignating paragraphs (b)(4), (b)(5), and (b)(6), as (b)(3), (b)(4),
and (b)(5), respectively.
PART 52--SOLICITATION PROVISIONS AND CONTRACT CLAUSES
52.209-5 [Amended]
7. Amend section 52.209-5 by removing paragraphs (a)(1)(i)(D) and
(a)(1)(i)(E).
52.212-3 [Amended]
8. Amend section 52.212-3 by removing paragraph (i); and by
redesignating paragraph (j) as (i).
[FR Doc. 01-31301 Filed 12-26-01; 8:45 am]
BILLING CODE 6820-EP-P