Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Rules and Regulations 59701

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders-Commercial Items.

* * * * *

CONTRACT TERMS AND CONDITIONS 

REQUIRED TO IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS-COMMERCIAL ITEMS 

(OCT 2004)

(a) The Contractor shall comply with the 

following Federal Acquisition Regulation 

(FAR) clauses, which are incorporated in this 

contract by reference, to implement 

provisions of law or Executive orders 

applicable to acquisitions of commercial 

items:

(1) 52.233–3, Protest After Award (AUG 

1996) (31 U.S.C. 3553).

(2) 52.233–4, Applicable Law for Breach of 

Contract Claim (OCT 2004) (Pub. L. 108–77, 

108–78).

* * * * *

■ 4. Amend section 52.213–4 by revising 

the date of the clause; and by adding 

paragraph (a)(1)(vi) to read as follows:

52.213–4 Terms and Conditions-Simplified 

Acquisitions (Other Than Commercial 

Items).

* * * * *

TERMS AND CONDITIONS-SIMPLIFIED 

ACQUISITIONS (OTHER THAN 

COMMERCIAL ITEMS) (OCT 2004)

(a) * * *

(1) * * *

(vi) 52.233–4, Applicable Law for Breach of 

Contract Claim (OCT 2004) (Pub. L. 108–77, 

108–78).

* * * * *

52.225–3 [Amended]

■ 5. Amend section 52.225–3 by revising 

the date of the clause to read ‘‘(OCT 

2004)’’; and removing paragraph (d) of 

the clause.

52.225–5 [Amended]

■ 6. Amend section 52.225–5 by revising 

the date of the clause to read ‘‘(OCT 

2004)’’; and removing paragraph (c) of 

the clause.

52.225–11 [Amended]

■ 7. Amend section 52.225–11 by 

revising the date of the clause to read 

‘‘(OCT 2004)’’; and removing paragraph 

(e) of the clause.

■ 8. Add section 52.233–4 to read as 

follows:

52.233–4 Applicable Law for Breach of 

Contract Claim.

As prescribed in 33.215(b), insert the 

following clause:

APPLICABLE LAW FOR BREACH OF 

CONTRACT CLAIM (OCT 2004)

United States law will apply to resolve any 

claim of breach of this contract.

(End of clause)

[FR Doc. 04–22245 Filed 10–4–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Parts 7, 11, 13, 15

[FAC 2001–25; FAR Case 2003–025; Item 

III]

RIN 9000—AK03

Federal Acquisition Regulation; 

Telecommuting for Federal 

Contractors

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA).

ACTION: Interim rule with request for 

comments.

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement Section 

1428 of the Services Acquisition Reform 

Act of 2003, Title XIV of Public Law 

108–136, Authorization of 

Telecommuting for Federal Contractors.

DATES: Effective Date: October 5, 2004.

Comment Date: Interested parties 

should submit comments to the FAR 

Secretariat at the address shown below 

on or before December 6, 2004 to be 

considered in the formulation of a final 

rule.

ADDRESSES: Submit comments 

identified by FAC 2001–25, FAR case 

2003–025, by any of the following 

methods:

• Federal eRulemaking Portal: http:/

/www.regulations.gov. Follow the 

instructions for submitting comments.

• Agency Web Site: http://

www.acqnet.gov/far/ProposedRules/

proposed.htm. Click on the FAR Case 

number to submit comments.

• E-mail: farcase.2003–025@gsa.gov. 

Include FAC 2001–25, FAR case 2003–

025, in the subject line of the message.

• Fax: 202–501–4067.

• Mail: General Services 

Administration, Regulatory Secretariat 

(V), 1800 F Street, NW, Room 4035, 

ATTN: Laurie Duarte, Washington, DC 

20405.

Instructions: Please submit comments 

only and cite FAC 2001–25, FAR case 

2003–025, in all correspondence related 

to this case. All comments received will 

be posted without change to http://

www.acqnet.gov/far/ProposedRules/

proposed.htm, including any personal 

information provided.

FOR FURTHER INFORMATION CONTACT: The 

FAR Secretariat at (202) 501–4755, for 

information pertaining to status or 

publication schedules. For clarification 

of content, contact Mr. Gerald Zaffos, 

Procurement Analyst, at (202) 208–

6091. Please cite FAC 2001–25, FAR 

case 2003–025.

SUPPLEMENTARY INFORMATION:

A. Background

This interim rule implements Section 

1428 of the Services Acquisition Reform 

Act of 2003 (Title XIV of Public Law 

108–136). Section 1428 requires the 

amendment of the FAR to permit 

telecommuting by employees of Federal 

Government contractors in the 

performance of contracts entered into 

with executive agencies. Specifically, 

Section 1428 states that solicitations for 

the acquisition of property or services 

may not include any requirement or 

evaluation criteria that would render an 

offeror ineligible to enter into a contract 

because it proposes to permit its 

employees to telecommute, unless the 

contracting officer determines that the 

requirements of the agency, including 

security requirements, cannot be met if 

telecommuting is permitted. The 

contracting officer must document in 

writing the basis for the determination. 

Also, the solicitation cannot contain any 

evaluation criteria that would reduce 

the scoring of an offer because the 

offeror proposes to permit its employees 

to telecommute, unless the contracting 

officer determines that the requirements 

of the agency, including security 

requirements, would be adversely 

impacted if telecommuting is allowed. 

The contracting officer must document 

in writing the basis for this 

determination as well.

This is not a significant regulatory 

action and, therefore, was 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.

B. Regulatory Flexibility Act

The interim rule is not expected 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 by not automatically 

prohibiting telecommuting, the 

Government will be making it easier for 

small businesses to recruit and maintain 

employees for work on Government 

contracts. Until now, there has been no 

Governmentwide policy or practice 

concerning contractor employee 

telecommuting. This rule will not be a 

major change, but instead a small

59702 Federal Register / Vol. 69, No. 192 / Tuesday, October 5, 2004 / Rules and Regulations 

positive benefit to small businesses. 

Therefore, an Initial Regulatory 

Flexibility Analysis has not been 

performed. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 7, 11, 

13, and 15 in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C 601, et seq. (FAC 2001–25, FAR 

case 2003–025), in correspondence.

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.

D. Determination to Issue an Interim 

Rule

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because this statute 

requires that the FAR be amended no 

later than 180 days after enactment. The 

statute was enacted on November 24, 

2003, which required amending the 

FAR by May 22, 2004. However, 

pursuant to Public Law 98–577 and FAR 

1.501, the Councils will consider public 

comments received in response to this 

interim rule in the formation of the final 

rule.

List of Subjects in 48 CFR Parts 7, 11, 

13, and 15

Government procurement.

Dated: September 28, 2004.

Ralph J. De Stefano,

Acting Director, Contract Policy Division.

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 7, 11, 13, and 15 as 

set forth below:

■ 1. The authority citation for 48 CFR 

parts 7, 11, 13, and 15 is revised 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 7—ACQUISITION PLANNING

■ 2. Add section 7.108 to read as follows:

7.108 Additional requirements for 

telecommuting.

In accordance with section 1428 of 

Public Law 108–136, an agency shall 

generally not discourage a contractor 

from allowing its employees to 

telecommute in the performance of 

Government contracts. Therefore, 

agencies shall not—

(a) Include in a solicitation a 

requirement that prohibits an offeror 

from permitting its employees to 

telecommute unless the contracting 

officer first determines that the 

requirements of the agency, including 

security requirements, cannot be met if 

telecommuting is permitted. The 

contracting officer shall document the 

basis for the determination in writing 

and specify the prohibition in the 

solicitation; or

(b) When telecommuting is not 

prohibited, unfavorably evaluate an 

offer because it includes telecommuting, 

unless the contracting officer first 

determines that the requirements of the 

agency, including security 

requirements, would be adversely 

impacted if telecommuting is permitted. 

The contracting officer shall document 

the basis for the determination in 

writing and address the evaluation 

procedures in the solicitation.

PART 11—DESCRIBING AGENCY 

NEEDS

■ 3. Amend section 11.002 by adding 

paragraph (g) to read as follows:

11.002 Policy.

* * * * *

(g) Agencies shall not include in a 

solicitation a requirement that prohibits 

an offeror from permitting its employees 

to telecommute unless the contracting 

officer executes a written determination 

in accordance with FAR 7.108(a).

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES

■ 4. Amend section 13.106–2 by 

redesignating paragraphs (b)(2) and 

(b)(3) as (b)(3) and (b)(4), respectively, 

and adding a new paragraph (b)(2) to 

read as follows:

13.106–2 Evaluation of quotations or 

offers.

* * * * *

(b) * * *

(2) If telecommuting is not prohibited, 

agencies shall not unfavorably evaluate 

an offer because it includes 

telecommuting unless the contracting 

officer executes a written determination 

in accordance with FAR 7.108(b).

* * * * *

PART 15—CONTRACTING BY 

NEGOTIATION

■ 5. Amend section 15.304 by adding 

paragraph (c)(6) to read as follows:

15.304 Evaluation factors and significant 

subfactors.

* * * * *

(c) * * *

(6) If telecommuting is not prohibited, 

agencies shall not unfavorably evaluate 

an offer that includes telecommuting 

unless the contracting officer executes a 

written determination in accordance 

with FAR 7.108(b).

* * * * *

[FR Doc. 04–22246 Filed 10–4–04; 8:45 am]

BILLING CODE 6820–EP–S

DEPARTMENT OF DEFENSE

GENERAL SERVICES 

ADMINISTRATION

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION

48 CFR Part 39

[FAC 2001–25; FAR Case 2004–020; Item 

IV]

RIN 9000–AK05

Federal Acquisition Regulations; 

Section 508 Micropurchase Exemption

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA).

ACTION: Interim rule with request for 

comments.

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to extend the micropurchase exemption for purchasing 

electronic and information technology 

(EIT) that conforms to the requirements 

of Section 508 of the Rehabilitation Act 

of 1973 from October 1, 2004, to April 

1, 2005. No further extensions will be 

granted. The extension until April 1, 

2005, will provide agencies time to 

update their purchase card training 

modules on the 508 requirements and 

train their personnel.

DATES: Effective Date: October 5, 2004.

Comment Date: Interested parties 

should submit comments to the FAR 

Secretariat at the address shown below 

on or before December 6, 2004 to be 

considered in the formulation of a final 

rule.

ADDRESSES: Submit comments 

identified by FAC 2001–25, FAR case 

2004–020 by any of the following 

methods: