77722 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket FAR 2010–0076, Sequence 9] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–47; 

Introduction 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Summary presentation of rules. 

SUMMARY: This document summarizes 

the Federal Acquisition Regulation 

(FAR) rules agreed to by the Civilian 

Agency Acquisition Council and the 

Defense Acquisition Regulations 

Council (Councils) in this Federal 

Acquisition Circular (FAC) 2005–47. A 

companion document, the Small Entity 

Compliance Guide (SECG), follows this 

FAC. The FAC, including the SECG, is 

available via the Internet at http:// 

www.regulations.gov. 

DATES: For effective dates see separate 

documents, which follow. 

FOR FURTHER INFORMATION CONTACT: The 

analyst whose name appears in the table 

below in relation to each FAR case. 

Please cite FAC 2005–47 and the 

specific FAR case numbers. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. 

LIST OF RULES IN FAC 2005–47 

Item Subject FAR case Analyst 

I ................................. Notification of Employee Rights Under the National Labor Relations Act (Interim) .......... 2010–006 McFadden. 

II ................................ HUBZone Program Revisions ............................................................................................ 2006–005 Morgan. 

III ............................... Preventing Abuse of Interagency Contracts (Interim) ........................................................ 2008–032 Sakalos. 

IV ............................... Small Disadvantaged Business Self-Certification (Interim) ................................................ 2009–019 Morgan. 

V ................................ Uniform Suspension and Debarment Requirement (Interim) ............................................. 2009–036 Gary. 

VI ............................... Limitation on Pass-Through Charges ................................................................................. 2008–031 Chambers. 

VII .............................. Technical Amendments.

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 number and 

subject set forth in the documents 

following these item summaries. 

FAC 2005–47 amends the FAR as 

specified below: 

Item I—Notification of Employee Rights 

Under the National Labor Relations Act 

(FAR Case 2010–006) (Interim) 

This interim rule amends the Federal 

Acquisition Regulation (FAR) to 

implement Executive Order 13496, 

Notification of Employee Rights Under 

Federal Labor Laws, as implemented by 

the Department of Labor (DoL). The 

Executive order requires contractors and 

subcontractors to post a notice that 

includes employee rights under the 

National Labor Relations Act, 29 U.S.C. 

151 et seq. This Act encourages 

collective bargaining, and protects the 

exercise by employees of their freedom 

to associate, to self organize and to 

designate representatives of their own 

choosing for the purpose of negotiating 

the terms and conditions of their 

employment. This FAR interim rule 

establishes a new subpart 22.16, 

Notification of Employee Rights under 

the National Labor Relations Act. The 

rule also creates a new FAR clause 

52.222–40, Notification of Employee 

Rights under the National Labor 

Relations Act. In addition, this rule 

revises the FAR clauses at 52.212–5, 

Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items, 

and 52.244–6, Subcontracts for 

Commercial Items, to include the 

requirements of the new FAR clause 

52.222–40. The required employee 

notice, ‘‘Notification of Employee Rights 

Under the National Labor Relations 

Act,’’ may be obtained from the DoL; 

downloaded from a DoL Web site; 

provided by the Federal contracting 

agency, if requested; or reproduced and 

used as exact duplicate copies of the 

DoL’s official poster (see FAR 52.222– 

40(c)). Contracting officers shall insert 

the clause at FAR 52.222–40, 

Notification of Employee Rights under 

the National Labor Relations Act, in all 

solicitations and contracts, including 

acquisitions for commercial items and 

commercially available off-the-shelf 

items, except acquisitions— 

(1) Under the simplified acquisition 

threshold. For indefinite-quantity 

contracts, include the clause only if the 

value of orders in any calendar year of 

the contract is expected to exceed the 

simplified acquisition threshold; 

(2) For work performed exclusively 

outside the United States; or 

(3) Covered (in their entirety) by an 

exemption granted by the Secretary. 

A contracting agency may modify the 

clause at FAR 52.222–40, if necessary, 

to reflect an exemption granted by the 

Secretary of the Department of Labor 

(see 22.1603(b)). 

Item II—HUBZone Program Revisions 

(FAR Case 2006–005) 

This FAR final rule implements the 

Small Business Administration (SBA) 

final rule published in the Federal 

Register at 69 FR 29411 on May 24, 

2004, and an interim rule published in 

the Federal Register at 70 FR 51243 on 

August 30, 2005, amending its 

HUBZone regulations at 13 CFR part 

126 to implement the Small Business 

Reauthorization Act of 2000, the 

Consolidated Appropriations Act of 

2005, and other various policy changes. 

The FAR is amended to— 

(1) Require a HUBZone small business 

concern to be a HUBZone small 

business concern both at the time of its 

initial offer and at the time of contract 

award; 

(2) Require that HUBZone concerns 

provide to the contracting officer a copy 

of the notice required by 13 CFR 

126.501 if material changes occur before 

award that could affect its HUBZone 

eligibility; 

(3) Allow waiver of the 50 percent 

requirement. In accordance with 13 CFR 

126.700, for general construction or 

construction by special trade 

contractors, a HUBZone small business 

concern must spend at least 50 percent 

of the cost of contract performance 

incurred for personnel on its own 

employees or subcontract employees of 

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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77723 

other HUBZone small business 

concerns. This final rule amends FAR 

clause 52.219–3, Notice of Total 

HUBZone Set-Aside, and FAR clause 

52.219–4, Notice of Price Evaluation 

Preference for HUBZone Small Business 

Concerns, to include an Alternate I, to 

be used to waive the 50 percent 

requirement only after determining that 

at least two HUBZone small business 

concerns cannot meet the requirement. 

However, the HUBZone small business 

prime contractor must still meet the 

performance of work requirements set 

forth in 13 CFR 125.6(c). 

Item III—Preventing Abuse of 

Interagency Contracts (FAR Case 2008– 

032) (Interim) 

This interim rule implements section 

865 of the Duncan Hunter National 

Defense Authorization Act (NDAA) for 

Fiscal Year 2009. FAR subpart 17.5 now 

addresses all interagency acquisitions, 

not just those made under the Economy 

Act authority. A new subsection 

17.502–1 is added to require that all 

interagency acquisitions include a 

determination of best procurement 

approach. For an assisted acquisition 

between the servicing agency and the 

requesting agency, this subsection now 

requires a written agreement that 

establishes the general terms and 

conditions governing the relationship 

between the parties. Subsection 17.502– 

2 contains business-case analysis 

requirements when an agency wishes to 

establish a contract that would be used 

by other agencies. There is a statutory 

exception included in subpart 17.5 for 

orders of $500,000 or less issued against 

Federal Supply Schedules. 

Item IV—Small Disadvantaged 

Business Program Self-Certification of 

Subcontractors (FAR Case 2009–019) 

(Interim) 

This interim rule amends the FAR by 

allowing small disadvantaged 

businesses (SDBs) to self-represent their 

SDB status to prime contractors in good 

faith when seeking Federal 

subcontracting opportunities. This 

change implements revisions made by 

the Small Business Administration 

(SBA) to its SDB regulations. This case 

only addresses the subcontracting status 

portion of the SBA final rule for Small 

Disadvantaged Business certification. 

The Small Disadvantaged Business 

certification for prime contracts will be 

addressed in a future rule. This change 

removes a cost of compliance burden on 

SDB subcontractors seeking SBA 

certification. 

Item V—Uniform Suspension and 

Debarment Requirement (FAR Case 

2009–036) (Interim) 

This interim rule amends the FAR at 

parts 9 and 52 to implement section 815 

of the National Defense Authorization 

Act for Fiscal Year 2010, Public Law 

111–84. The law requires that 

suspension and debarment requirements 

flow down to all subcontracts except 

contracts for the acquisition of 

commercially available off-the-shelf 

items, and in the case of contracts for 

the acquisition of commercial items, 

first-tier subcontracts only. 

This requirement will protect the 

Government against contracting with 

entities at any tier who are suspended, 

debarred or proposed for debarment. 

This rule does not have a significant 

impact on the Government, contractors 

or any automated systems. 

Item VI—Limitations on Pass-Through 

Charges (FAR Case 2008–031) 

This final rule adopts the interim rule 

published in the Federal Register at 74 

FR 52853, October 14, 2009, as a final 

rule with minor changes. 

The interim rule amended the FAR to 

implement section 866 of the Duncan 

Hunter National Defense Authorization 

Act (NDAA) for Fiscal Year 2009 (Pub. 

L. 110–417) and section 852 of the John 

Warner NDAA for Fiscal Year 2007 

(Pub. L. 109–364). This legislation 

required the Councils to amend the FAR 

to minimize excessive pass-through 

charges by contractors from 

subcontractors, or from tiers of 

subcontractors, that add no or negligible 

value, and to ensure that neither a 

contractor nor a subcontractor receives 

indirect costs or profit/fee (i.e., passthrough charges) on work performed by 

a lower-tier subcontractor to which the 

higher-tier contractor or subcontractor 

adds no, or negligible, value. 

To enable agencies to ensure that 

pass-through charges are not excessive, 

the interim rule included a solicitation 

provision and a contract clause 

requiring offerors and contractors to 

identify the percentage of work that will 

be subcontracted, and when subcontract 

costs will exceed 70 percent of the total 

cost of work to be performed, to provide 

information on indirect costs and profit/ 

fee and value added with regard to the 

subcontract work. 

Item VII—Technical Amendments 

Editorial changes are made at FAR 

3.104–1, 5.601, 7.105, and 10.002. 

Dated: November 24, 2010. 

Millisa Gary, 

Acting Director, Acquisition Policy Division. 

Dated: November 23, 2010. 

Shay D. Assad, 

Director, Defense Procurement and 

Acquisition Policy. 

Dated: November 24, 2010. 

Joseph A. Neurauter, 

Deputy Associate Administrator and Senior 

Procurement Executive, Office of Acquisition 

Policy, U.S. General Services Administration. 

Dated: November 23, 2010. 

William P. McNally, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. 2010–30558 Filed 12–10–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 2, 22, and 52 

[FAC 2005–47; FAR Case 2010–006; Item 

I; Docket 2010–0106, Sequence 1] 

RIN 9000–AL76 

Federal Acquisition Regulation; 

Notification of Employee Rights Under 

the National Labor Relations Act 

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) are issuing an interim rule to 

amend the Federal Acquisition 

Regulation (FAR) to implement 

Executive Order 13496, Notification of 

Employee Rights Under Federal Labor 

Laws, as implemented by the 

Department of Labor (DoL). This 

Executive Order requires contractors to 

display a notice to employees of their 

rights under Federal labor laws, and the 

DoL has determined that the notice shall 

include employee rights under the 

National Labor Relations Act. 

DATES: Effective Date: December 13, 

2010. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

February 11, 2011 to be considered in 

the formulation of a final rule. 

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