Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 3677 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 9 and 52 

[FAC 2021–03; FAR Case 2017–018; Item 

I; Docket No. FAR–2017–0018; Sequence 

No. 1] 

RIN 9000–AN57 

Federal Acquisition Regulation: 

Violations of Arms Control Treaties or 

Agreements With the United States 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

adopting as final, with changes, an 

interim rule amending the Federal 

Acquisition Regulation (FAR) to 

implement a section of the National 

Defense Authorization Act for Fiscal 

Year 2017 that addresses measures 

against persons involved in activities 

that violate arms control treaties or 

agreements with the United States. 

DATES: Effective: February 16, 2021. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael O. Jackson, Procurement 

Analyst, at 202–208–4949 or 

michaelo.jackson@gsa.gov for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at 202–501–4755 or 

GSARegSec@gsa.gov. Please cite FAC 

2021–03, FAR Case 2017–018. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA issued an 

interim rule at 83 FR 28145 on June 15, 

2018, to implement 22 U.S.C. 2593e, as 

added by section 1290 of the National 

Defense Authorization Act for Fiscal 

Year 2017 (Pub. L. 114–328). 22 U.S.C. 

2593e addresses measures against 

persons involved in activities that 

violate arms control treaties or 

agreements with the United States and 

applicable remedies for determining 

that a person has submitted a false 

certification regarding such activities. 

One respondent submitted comments on 

the interim rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule. A 

discussion of the comments and the 

changes to the rule as a result of those 

comments are provided as follows: 

A. Summary of Changes 

The final rule: 

1. Clarifies, at FAR 9.405, the effect of 

an ineligibility determination under 22 

U.S.C. 2593e. Conforming changes are 

made at FAR 9.400(b) and 9.405–2(a). 

2. Enumerates causes of suspension 

and debarment at FAR 9.406–2(b)(1)(vii) 

and 9.407–2(a)(9). 

3. Clarifies at FAR 9.406–4(a)(1)(iii) 

that the minimum period of debarment 

of not less than two years, as statutorily 

mandated by 22 U.S.C. 2593e, for 

violation of arms control treaties or 

agreements with the United States is 

inclusive of any suspension period, if 

suspension precedes the debarment per 

FAR 9.406–4(a)(2). A conforming 

change is also made at FAR 9.109–4(d). 

4. Corrects the threshold at FAR 

52.209–13 regarding application of the 

certification requirement. 

B. Analysis of Public Comments 

1. Causes for suspension and 

debarment. 

Comment: The respondent 

recommended addition of new causes to 

the lists of causes for debarment and 

suspension at FAR 9.406–2 and 9.407– 

2, respectively, to include determination 

of a false certification regarding 

violations of arms control treaties or 

agreements with the United States 

under FAR 52.209–13. 

Response: The Councils have added 

the causes at FAR 9.406–2(b)(1)(vii) and 

9.407–2(a)(9), as recommended. This 

change is in line with FAR 9.109–4(d) 

and reflects statutory remedies under 22 

U.S.C. 2593e. 

2. Period of debarment. 

Comment: The respondent 

recommended that FAR 9.406– 

4(a)(1)(iii) should also specify that the 

statutory requirement for the 2-year 

minimum debarment period is inclusive 

of a suspension period, if suspension 

precedes a debarment. This is consistent 

with FAR 9.406–4(a)(2), which states 

that if suspension precedes a 

debarment, the suspension period shall 

be considered in determining the 

debarment period. 

The respondent also recommended 

changing the reference in this paragraph 

from ‘‘9.109–4(d)’’ to the newly 

proposed ‘‘9.406–2(b)(1)(vii)’’, because 

any suspension or debarment resulting 

from determination of a false 

certification under FAR 52.209–13 will 

be pursued under FAR subpart 9.4. 

Response: The Councils are making 

the changes to FAR 9.406–4(a)(1)(iii) as 

recommended by the respondent. 

Suspension as a remedy for 

determination of a false certification 

under FAR 52.209–13 continues to 

follow FAR 9.407–4(b), which limits the 

maximum period of suspension to 18 

months. 

3. Certification by the offeror. 

Comment: The respondent 

recommended an edit to FAR 9.109–4(d) 

to refer more broadly to FAR subpart 

9.4, rather than specifying ‘‘subject to 

procedures set forth in subpart 9.4 

(including 9.406–1 and 9.407–1)’’. The 

respondent was concerned that the 

reference to ‘‘procedures’’ set forth in 

FAR subpart 9.4 might be too narrowly 

interpreted as only applying to the 

‘‘Procedures’’ subheading titles of FAR 

9.406–3 and 9.407–3. 

Response: The Councils are removing 

‘‘the procedures’’ language to have FAR 

9.109–4(d) refer generally to subpart 9.4. 

4. Effect of listing. 

Comment: The respondent 

commented that the change to FAR 

9.405(b) in the interim rule was 

unnecessary, because FAR 9.405(b) 

already states that contractors included 

in System for Award Management 

(SAM) exclusions as being ineligible on 

the basis of statutory procedures are 

excluded under the conditions and 

period set forth in the regulation. 

Specific statutory prohibitions that are 

not issued under FAR subpart 9.4 

procedures to date have not been 

incorporated into FAR subpart 9.4, and 

the scope of those debarments are not 

specifically addressed in FAR section 

9.405. The respondent further 

recommended that if the interim rule 

revisions to FAR 9.405 are retained, 

then the provisions should be edited to 

mirror the statutory language, which 

also prohibits agencies from entering 

into and renewing contracts with these 

entities. 

Response: The Councils decided to 

retain the language at FAR 9.405 and 

adopted the respondent’s change by 

adding ‘‘enter into’’ and ‘‘renew’’. Also, 

the Councils adopted the respondent’s 

recommendation to break out the 

paragraph by adding a new paragraph 

(c). 

III. Applicability to Contracts at or 

Below the Simplified Acquisition 

Threshold (SAT) and for Commercial 

Items, Including Commercially 

Available Off-the-Shelf (COTS) Items 

Consistent with 41 U.S.C. 1905— 

1907, the interim rule did not apply the 

certification required by 22 U.S.C. 2593e 

to contracts at or below the simplified 

acquisition threshold (SAT), or to 


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3678 Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 

contracts for the acquisition of 

commercial items, including 

commercially available off-the-shelf 

(COTS) items. However, when acquiring 

products or services, the Government is 

still prohibited from contracting with 

entities listed as excluded in the SAM. 

Similarly, this final rule does not affect 

the applicability of the certification 

required by 22 U.S.C. 2593e, as 

implemented in FAR 52.209–13, to 

contracts at or below the SAT, or to 

contracts for the acquisition of 

commercial items, including COTS 

items. 

IV. 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 not a significant 

regulatory action and, therefore, was not 

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. 

V. Executive Order 13771 

This rule is not subject to E.O. 13771, 

Reducing Regulation and Controlling 

Regulatory Costs, because this rule is 

not a significant regulatory action under 

E.O. 12866. 

VI. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. The 

FRFA is summarized as follows: 

This final rule is necessary to implement 

changes to the interim rule published at 83 

FR 28145. The interim rule amended the FAR 

to implement section 1290 of the National 

Defense Authorization Act for Fiscal Year 

2017 (Pub. L. 114–328). The objective of this 

rule is to provide a response to public 

comments on the interim rule by clarifying 

the suspension and debarment remedies for 

determination of a false certification under 

22 U.S.C. 2593e. In addition to the 

aforementioned, this final rule makes some 

other technical corrections to the interim 

rule. 

DoD, GSA, and NASA do not expect this 

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. This final rule makes 

changes to the interim rule published at 83 

FR 28145 on June 15, 2018. The objective of 

this rule is to provide a response to public 

comments on the interim rule by clarifying 

the suspension and debarment remedies for 

determination of a false certification under 

22 U.S.C. 2593e, specifically those related to 

suspension and debarment under FAR 

subpart 9.4. No significant issues were raised 

by public comments in response to the initial 

regulatory flexibility analysis. 

Using FPDS data for FY 2017, 2018, and 

2019, this rule applies to 19,511 small 

entities. Of this number, an average of 6,504 

small entities annually are required to fill out 

the certification. 

This final rule requires certification from 

each offeror that submits an offer in response 

to a Government solicitation that exceeds the 

simplified acquisition threshold and is not 

for the acquisition of a commercial item, 

including COTS items. 

Estimated burden hours are 11,106 hours 

per year for the first certification by an 

average of 6,504 small entities. The final rule 

adds determination of a false certification 

under FAR 52.209–13 as an enumerated 

cause for both suspension and debarment. It 

was clear from the interim rule that cause for 

suspension and debarment was part of the 

remedy for determination of a false 

certification, however, the cause was not 

enumerated under FAR 9.407–2 and 9.406– 

2, respectively. This revision has no impact 

(or low impact) on small business entities as 

it provides additional clarifications without 

adding a new burden. 

The rule does not duplicate, overlap, or 

conflict with any other Federal rules. 

DoD, GSA, and NASA considered whether 

to apply the certification provision to 

contracts at or below the SAT and to the 

acquisition of commercial items, including 

COTS items, or to exempt such acquisitions 

in accordance with 41 U.S.C. 1905—1907. 

The FAR Council and the Administrator for 

Federal Procurement Policy did not sign 

determinations that the provision should 

apply to contracts at or below the SAT and 

to the acquisition of commercial items, 

including COTS items, thus minimizing the 

impact on small business to the extent 

permitted by law. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat Division. The Regulatory 

Secretariat Division has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

VII. Paperwork Reduction Act 

The Paperwork Reduction Act (44 

U.S.C. chapter 35) does apply; however, 

these changes to the FAR do not impose 

additional information collection 

requirements to the paperwork burden 

previously approved under OMB 

Control Number 9000–0198, titled: 

Violations of Arms Control Treaties or 

Agreements. 

List of Subjects in 48 CFR Parts 9 and 

52 

Government procurement. 

William F. Clark, 

Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

adopt the interim rule published June 

15, 2018, as final with amendments to 

48 CFR parts 9 and 52 as set forth 

below: 

■ 1. The authority citation for 48 CFR 

parts 9 and 52 continues to read as 

follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 51 U.S.C. 20113. 

PART 9—CONTRACTOR 

QUALIFICATIONS 

■ 2. Amend section 9.109–4 by— 

■ a. Removing from the last sentence in 

paragraph (a)(1)(i) ‘‘via the internet at’’ 

and adding ‘‘at’’ in its place; and 

■ b. Revising paragraph (d). 

The revision reads as follows: 

9.109–4 Certification by the offeror. 

* * * * * 

(d) Upon the determination of a false 

certification under 52.209–13, an offeror 

will be subject to such remedies as 

suspension or debarment under subpart 

9.4, or termination of any contract 

resulting from the false certification. 

Debarments pursued as a remedy under 

subpart 9.4 shall be for a period of not 

less than 2 years, inclusive of any 

suspension period, if suspension 

precedes a debarment (see 9.406– 

4(a)(1)(iii) and (a)(2)). 

* * * * * 

9.400 [Amended] 

■ 3. Amend section 9.400 by removing 

from paragraph (b) ‘‘(9.405(b))’’ and 

adding ‘‘(9.405)’’ in its place. 

■ 4. Amend section 9.405 by— 

■ a. Removing the last sentence from 

paragraph (b); 

■ b. Redesignating paragraphs (c) and 

(d) as paragraphs (d) and (e); and 

■ c. Adding a new paragraph (c) to read 

as follows: 

9.405 Effect of listing. 

* * * * * 

(c) Agencies shall not enter into, 

renew, or extend contracts with 

contractors that have been declared 

ineligible pursuant to 22 U.S.C. 2593e. 

* * * * * 

9.405–2 [Amended] 

■ 5. Amend section 9.405–2 by 

removing from paragraph (a) ‘‘9.405(b)’’ 

and adding ‘‘9.405’’ in its place. 


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Federal Register / Vol. 86, No. 9 / Thursday, January 14, 2021 / Rules and Regulations 3679 

■ 6. Amend section 9.406–2 by adding 

paragraph (b)(1)(vii) to read as follows: 

9.406–2 Causes for debarment. 

* * * * * 

(b) * * * 

(1) * * * 

(vii) Determination of a false 

certification under 52.209–13, Violation 

of Arms Control Treaties or AgreementsCertification. 

* * * * * 

■ 7. Amend section 9.406–4 by revising 

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

9.406–4 Period of debarment. 

(a) * * * 

(1) * * * 

(iii) Debarments under 9.406– 

2(b)(1)(vii) shall be for a period of not 

less than 2 years, inclusive of any 

suspension period, if suspension 

precedes a debarment (see paragraph 

(a)(2) of this section). 

* * * * * 

■ 8. Amend section 9.407–2 by— 

■ a. Redesignating paragraph (a)(9) as 

(a)(10); and 

■ b. Adding a new paragraph (a)(9) to 

read as follows: 

9.407–2 Causes for suspension. 

(a) * * * 

(9) Determination of a false 

certification under 52.209–13, Violation 

of Arms Control Treaties or AgreementsCertification. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 9. Amend section 52.209–13 by— 

■ a. Revising the date of the provision; 

■ b. Removing from paragraph (a) 

‘‘acquisitions below’’ and adding 

‘‘acquisitions at or below’’ in its place; 

■ c. Removing from paragraph (b)(1)(i) 

‘‘available via the internet at’’ and 

adding ‘‘available at’’ in its place; and 

■ d. Removing from paragraph (b)(1)(ii) 

‘‘available via the internet at’’ and 

adding ‘‘available at’’ in its place. 

The revision reads as follows: 

52.209–13 Violation of Arms Control 

Treaties or Agreements-Certification. 

* * * * * 

Violation of Arms Control Treaties or 

Agreements—Certification (Feb 2021) 

* * * * * 

[FR Doc. 2020–29086 Filed 1–13–21; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 12, 13, 15, 16, and 37 

[FAC 2021–03; FAR Case 2018–016; Item 

II; Docket No. FAR–2018–0016, Sequence 

No. 1] 

RIN 9000–AN75 

Federal Acquisition Regulation: 

Lowest Price Technically Acceptable 

Source Selection Process 

AGENCY: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement a section of the John S. 

McCain National Defense Authorization 

Act for Fiscal Year 2019 that applies 

criteria for and limitations on the use of 

the lowest price technically acceptable 

source selection criteria in solicitations. 

DATES: Effective: February 16, 2021. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Michael O. Jackson, Procurement 

Analyst, at 202–208–4949 or 

Michaelo.jackson@gsa.gov for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat Division at (202) 501–4755 

or GSARegSec@gsa.gov. Please cite FAC 

2021–03, FAR Case 2018–016. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule at 84 FR 52425 on 

October 2, 2019, to implement section 

880 of the John S. McCain National 

Defense Authorization Act (NDAA) for 

Fiscal Year (FY) 2019 (Pub. L. 115–232, 

41 U.S.C. 3701 Note). Section 880 

specifies the criteria that must be met in 

order to include lowest price technically 

acceptable (LPTA) source selection 

criteria in a solicitation; and requires 

solicitations predominantly for the 

acquisition of certain services and 

supplies to avoid the use of LPTA 

source selection criteria, to the 

maximum extent practicable. Nine 

respondents submitted public 

comments in response to the proposed 

rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the public comments in the 

development of the final rule. 

A. Summary of Significant Changes 

From the Proposed Rule 

No changes were made to the final 

rule as a result of public comments. 

Minor edits were made to the final rule 

to account for baseline updates and to 

add the full name of the applicable 

statute. A discussion of the comments is 

provided as follows: 

B. Analysis of Public Comments 

Comment: Respondents expressed 

support for the rule and advised that the 

rule is beneficial to the small business 

community and provides them with a 

greater opportunity to compete in the 

Federal marketplace. 

Response: The Councils acknowledge 

support for the rule. 

Comment: Respondents expressed 

support for using the LPTA source 

selection process, when its use is 

appropriate and the selection criteria 

can be well-defined. 

Response: The Councils agree that use 

of the LPTA source selection process is 

a valuable part of the best value 

continuum and an acceptable and 

appropriate source selection approach 

for many acquisitions. 

Comment: Respondents expressed 

concern that the rule will be considered 

a complete ban on the use of the LPTA 

source selection process. A respondent 

is specifically concerned that the use of 

the LPTA source selection process is 

prohibited for a significant number of 

information technology (IT) supplies 

and services that can be appropriately 

purchased using the process. As a 

result, the respondent recommends that 

the rule not be implemented, or be 

revised to narrow the scope of IT 

products and services to which the rule 

applies, because the rule, as proposed, 

will result in increased acquisition lead 

times and higher prices without a 

corresponding increase in quality of 

services. 

Response: It is not the intent of the 

rule to prohibit the use of the LPTA 

source selection process. Instead, the 

intent of the rule is to implement the 

statutory language, which aims to 

identify circumstances that must exist 

for an acquisition to use the LPTA 

source selection process and certain 

types of requirements that will regularly 

benefit from the use of tradeoff source 

selection procedures. Specifically, 

section 880 requires use of the LPTA 


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