Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77733 

personnel will be spent on the prime 

contractor’s employees or on a combination 

of the prime contractor’s employees and 

employees of HUBZone small business 

concern subcontractors; 

(iii) No more than 50 percent of the cost 

of contract performance to be incurred for 

personnel will be subcontracted to concerns 

that are not HUBZone small business 

concerns; or 

(4) Construction by special trade 

contractors. (i) At least 25 percent of the cost 

of contract performance to be incurred for 

personnel will be spent on the prime 

contractor’s employees; 

(ii) At least 50 percent of the cost of the 

contract performance to be incurred for 

personnel will be spent on the prime 

contractor’s employees or on a combination 

of the prime contractor’s employees and 

employees of HUBZone small business 

concern subcontractors; 

(iii) No more than 50 percent of the cost 

of contract performance to be incurred for 

personnel will be subcontracted to concerns 

that are not HUBZone small business 

concerns. 

(e) A HUBZone joint venture agrees that 

the aggregate of the HUBZone small business 

concerns to the joint venture, not each 

concern separately, will perform the 

applicable percentage of work requirements. 

(f)(1) When the total value of the contract 

exceeds $25,000, a HUBZone small business 

concern nonmanufacturer agrees to furnish in 

performing this contract only end items 

manufactured or produced by HUBZone 

small business concern manufacturers. 

(2) When the total value of the contract is 

equal to or less than $25,000, a HUBZone 

small business concern nonmanufacturer 

may provide end items manufactured by 

other than a HUBZone small business 

concern manufacturer provided the end 

items are produced or manufactured in the 

United States. 

(3) Paragraphs (f)(1) and (f)(2) of this 

section do not apply in connection with 

construction or service contracts. 

(g) Notice. The HUBZone small business 

offeror acknowledges that a prospective 

HUBZone awardee must be a HUBZone small 

business concern at the time of award of this 

contract. The HUBZone offeror shall provide 

the Contracting Officer a copy of the notice 

required by 13 CFR 126.501 if material 

changes occur before contract award that 

could affect its HUBZone eligibility. If the 

apparently successful HUBZone offeror is not 

a HUBZone small business concern at the 

time of award of this contract, the 

Contracting Officer will proceed to award to 

the next otherwise successful HUBZone 

small business concern or other offeror. 

(End of clause) 

Alternate I (JAN 2011). As prescribed 

in 19.1309(b)(1), substitute the 

following paragraphs (d)(3) and (d)(4) 

for paragraphs (d)(3) and (d)(4) of the 

basic clause: 

(3) General construction, at least 15 percent 

of the cost of the contract performance to be 

incurred for personnel will be spent on the 

concern’s employees; or 

(4) Construction by special trade 

contractors, at least 25 percent of the cost of 

the contract performance to be incurred for 

personnel will be spent on the concern’s 

employees. 

■ 25. Amend section 52.219–8 by 

revising the date of the clause; and 

paragraph (d) to read as follows: 

52.219–8 Utilization of small business 

concerns. 

* * * * * 

Utilization of Small Business Concerns 

(JAN 2011) 

* * * * * 

(d)(1) Contractors acting in good faith may 

rely on written representations by their 

subcontractors regarding their status as a 

small business concern, a veteran-owned 

small business concern, a service-disabled 

veteran-owned small business concern, a 

small disadvantaged business concern, or a 

women-owned small business concern. 

(2) The Contractor shall confirm that a 

subcontractor representing itself as a 

HUBZone small business concern is certified 

by SBA as a HUBZone small business 

concern by accessing the Central Contractor 

Registration (CCR) database or by contacting 

the SBA. Options for contacting the SBA 

include— 

(i) HUBZone small business database 

search application Web page at http:// 

dsbs.sba.gov/dsbs/search/ 

dsp_searchhubzone.cfm; or http:// 

www.sba.gov/hubzone; 

(ii) In writing to the Director/HUB, U.S. 

Small Business Administration, 409 3rd 

Street, SW., Washington DC 20416; or 

(iii) The SBA HUBZone Help Desk at 

hubzone@sba.gov. 

■ 26. Amend section 52.219–9 by 

revising the date of the clause and 

adding paragraph (e)(6) to read as 

follows: 

52.219–9 Small business subcontracting 

plan. 

* * * * * 

Small Business Subcontracting Plan 

(JAN 2011) 

* * * * * 

(e) * * * 

(6) For all competitive subcontracts over 

the simplified acquisition threshold in which 

a small business concern received a small 

business preference, upon determination of 

the successful subcontract offeror, the 

Contractor must inform each unsuccessful 

small business subcontract offeror in writing 

of the name and location of the apparent 

successful offeror prior to award of the 

contract. 

* * * * * 

[FR Doc. 2010–30560 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 2, 4, 8, 9, 17, 18, 35, and 

41 

[FAC 2005–47; FAR Case 2008–032; Item 

III; Docket 2010–0107, Sequence 1] 

RIN 9000–AL69 

Federal Acquisition Regulation; 

Preventing Abuse of Interagency 

Contracts 

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 

amending the Federal Acquisition 

Regulation (FAR) to implement 

provisions regarding, the Duncan 

Hunter National Defense Authorization 

Act (NDAA) for Fiscal Year 2009 

requirements for preventing abuse of 

interagency contracts. 

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. 

ADDRESSES: Submit comments 

identified by FAC 2005–47, FAR Case 

2008–032, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2008–032’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2008–032.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2008–032’’ on your attached 

document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Hada Flowers, 1275 

First Street, NE., Washington, DC 20417. 

Instructions: Please submit comments 

only and cite FAC 2005–47, FAR Case 

2008–032, in all correspondence related 

to this case. All comments received will 

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77734 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. Lori 

Sakalos, Procurement Analyst, at (202) 

208–0498. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–47, FAR 

Case 2008–032. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Interagency acquisitions offer 

important benefits to Federal agencies, 

including economies and efficiencies 

and the ability to leverage resources. 

This interim rule, which implements 

section 865 of the Duncan Hunter 

National Defense Authorization Act 

(NDAA) for Fiscal Year 2009, is 

designed to ensure these benefits are 

consistently achieved. The rule 

strengthens FAR subpart 17.5, 

Interagency Acquisitions, by— 

• Broadening the scope of coverage to 

address all interagency acquisitions 

(with limited exceptions), rather than 

just those conducted under the 

Economy Act (31 U.S.C. 1535), in 

recognition that an increasing number of 

interagency acquisitions are conducted 

under other authorities; 

• Requiring agencies to support the 

decision to use an interagency 

acquisition with a determination that 

such action is the ‘‘best procurement 

approach’’; 

• Directing that assisted acquisitions 

be accompanied by written agreements 

between the requesting agency and the 

servicing agency documenting the roles 

and responsibilities of the respective 

parties, including the planning, 

execution, and administration of the 

contract; 

• Requiring the development of 

business cases to support the creation of 

multi-agency contracts. The Office of 

Management and Budget (OMB) is 

developing additional guidance on the 

use of business cases; once the guidance 

is issued, it will be referenced in the 

FAR; and 

• Requiring the senior procurement 

executive for each executive agency to 

submit an annual report on interagency 

acquisitions to the Director of OMB, in 

accordance with section 865(c) of Public 

Law 110–417. 

The interim rule clarifies the meaning 

of ‘‘interagency acquisition,’’ ‘‘direct 

acquisition,’’ and ‘‘assisted acquisitions’’ 

and moves the terms from FAR subparts 

4.6 and 17.5 to FAR part 2. It also 

amends FAR subpart 8.4, Federal 

Supply Schedules, to add a cross 

reference to the requirements in subpart 

17.5 for orders over $500,000 

(a threshold established by statute). 

In developing the rule, the Councils 

reviewed interagency guidance issued 

by the Office of Federal Procurement 

Policy at http://www.whitehouse.gov/ 

omb/assets/procurement/ 

iac_revised.pdf. 

The OMB guidance addresses 

procedures for the use of interagency 

acquisitions to maximize competition, 

deliver best value to executive agencies, 

and minimize waste, fraud, and abuse. 

In addition, as required by section 

865(a), training on interagency 

acquisitions has been made available 

through the Federal Acquisition 

Institute (see http://www.fai.gov/IAA/ 

launchpage.htm). 

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. 

B. Regulatory Flexibility Act 

The Councils do not expect this 

interim 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 does not impose any additional 

requirements on small businesses. The 

rule is strengthening interagency 

acquisition procedures to achieve 

efficiencies and economies of scale 

across the Federal Government. The rule 

also requires agencies, in the multiagency contract business-case analysis, 

to consider strategies to ensure small 

business participation during 

acquisition planning. Therefore, an 

Initial Regulatory Flexibility Analysis 

has not been performed. The Councils 

invite comments from small business 

concerns and other interested parties on 

the expected impact of this rule on 

small entities. 

The Councils will also consider 

comments from small entities 

concerning the existing regulations in 

parts affected by this rule in accordance 

with 5 U.S.C. 610. Interested parties 

must submit such comments separately 

and should cite 5 U.S.C. 610 (FAC 

2005–47, FAR Case 2008–032) in all 

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. chapter 35, 

et seq. 

D. Determination To Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of 

Defense, the Administrator of General 

Services, and the Administrator of the 

National Aeronautics and Space 

Administration that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because section 

865(b) of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417) required 

the publication of the regulations within 

one year after enactment, October 14, 

2008. However, pursuant to 41 U.S.C. 

418b and FAR 1.501–3(b), 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 2, 4, 8, 

9, 17, 18, 35, and 41 

Government procurement. 

Dated: November 24, 2010. 

Millisa Gary, 

Acting Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 2, 4, 8, 9, 17, 18, 

35, and 41 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 2, 4, 8, 9, 17, 18, 35, and 41 

continues 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 2—DEFINITIONS OF WORDS 

AND TERMS 

■ 2. Amend section 2.101 in paragraph 

(b)(2) by— 

■ a. Adding, in alphabetical order, the 

definitions ‘‘Assisted acquisition’’, 

‘‘Direct acquisition’’, and ‘‘Interagency 

acquisition’’; 

■ b. Amending the definition ‘‘Multiagency contract (MAC)’’ by removing 

‘‘17.500(b)’’ and adding ‘‘17.502–2’’ in its 

place; and 

■ c. Adding, in alphabetical order, the 

definitions ‘‘Requesting agency’’, and 

‘‘Servicing agency’’. 

The added text reads as follows: 

2.101 Definitions. 

* * * * * 

(b) * * * 

(2) * * * 

Assisted acquisition means a type of 

interagency acquisition where a 

servicing agency performs acquisition 

activities on a requesting agency’s 

behalf, such as awarding and 

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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77735 

administering a contract, task order, or 

delivery order. 

* * * * * 

Direct acquisition means a type of 

interagency acquisition where a 

requesting agency places an order 

directly against a servicing agency’s 

indefinite-delivery contract. The 

servicing agency manages the indefinitedelivery contract but does not 

participate in the placement or 

administration of an order. 

* * * * * 

Interagency acquisition means a 

procedure by which an agency needing 

supplies or services (the requesting 

agency) obtains them from another 

agency (the servicing agency), by an 

assisted acquisition or a direct 

acquisition. The term includes— 

(1) Acquisitions under the Economy 

Act (31 U.S.C. 1535); and 

(2) Non-Economy Act acquisitions 

completed under other statutory 

authorities (e.g., General Services 

Administration Federal Supply 

Schedules in subpart 8.4 and 

Governmentwide acquisition contracts 

(GWACs)). 

* * * * * 

Requesting agency means the agency 

that has the requirement for an 

interagency acquisition. 

* * * * * 

Servicing agency means the agency 

that will conduct an assisted acquisition 

on behalf of the requesting agency. 

* * * * * 

PART 4—ADMINISTRATIVE MATTERS 

4.601 [Amended] 

■ 3. Amend section 4.601 by removing 

the definitions ‘‘Assisted acquisition’’, 

‘‘Direct acquisition’’, ‘‘Requesting 

agency’’, and ‘‘Servicing agency’’. 

PART 8—REQUIRED SOURCES OF 

SUPPLIES AND SERVICES 

■ 4. Amend section 8.404 by revising 

paragraph (b) to read as follows: 

8.404 Use of Federal Supply Schedules. 

* * * * * 

(b)(1) The contracting officer, when 

placing an order or establishing a BPA, 

is responsible for applying the 

regulatory and statutory requirements 

applicable to the agency for which the 

order is placed or the BPA is 

established. The requiring agency shall 

provide the information on the 

applicable regulatory and statutory 

requirements to the contracting officer 

responsible for placing the order. 

(2) For orders over $500,000, see 

subpart 17.5 for additional requirements 

for interagency acquisitions. For 

example, the requiring agency shall 

make a determination that use of the 

Federal Supply Schedule is the best 

procurement approach, in accordance 

with 17.502–1(a). 

* * * * * 

PART 9—CONTRACTOR 

QUALIFICATIONS 

9.106–3 [Amended] 

■ 5. Amend section 9.106–3 by 

removing the word ‘‘accommodated’’ 

and adding the words ‘‘accommodated 

(also see subpart 17.5)’’ in its place. 

PART 17—SPECIAL CONTRACTING 

METHODS 

■ 6. Revise subpart 17.5 to read as 

follows: 

Subpart 17.5—Interagency 

Acquisitions 

Sec. 

17.500 Scope of subpart. 

17.501 General. 

17.502 Procedures. 

17.502–1 General. 

17.502–2 The Economy Act. 

17.503 Ordering procedures. 

17.504 Reporting requirements. 

17.500 Scope of subpart. 

(a) This subpart prescribes policies 

and procedures applicable to all 

interagency acquisitions under any 

authority, except as provided for in 

paragraph (b) of this section. 

(b) This subpart does not apply to 

orders of $500,000 or less issued against 

Federal Supply Schedules. 

17.501 General. 

(a) Interagency acquisitions are 

commonly conducted through 

indefinite-delivery contracts, such as 

task- and delivery-order contracts. The 

indefinite-delivery contracts used most 

frequently to support interagency 

acquisitions are Federal Supply 

Schedules (FSS), Governmentwide 

acquisition contracts (GWACs), and 

multi-agency contracts (MACs). 

(b) An agency shall not use an 

interagency acquisition to circumvent 

conditions and limitations imposed on 

the use of funds. 

(c) An interagency acquisition is not 

exempt from the requirements of 

subpart 7.3, Contractor Versus 

Government Performance. 

(d) An agency shall not use an 

interagency acquisition to make 

acquisitions conflicting with any other 

agency’s authority or responsibility (for 

example, that of the Administrator of 

General Services under title 40, United 

States Code, ‘‘Public Buildings, Property 

and Works’’ and title III of the Federal 

Property and Administrative Services 

Act of 1949.) 

17.502 Procedures. 

17.502–1 General. 

(a) Determination of best procurement 

approach—(1) Assisted acquisitions. 

Prior to requesting that another agency 

conduct an acquisition on its behalf, the 

requesting agency shall make a 

determination that the use of an 

interagency acquisition represents the 

best procurement approach. As part of 

the best procurement approach 

determination, the requesting agency 

shall obtain the concurrence of the 

requesting agency’s responsible 

contracting office in accordance with 

internal agency procedures. At a 

minimum, the determination shall 

include an analysis of procurement 

approaches, including an evaluation by 

the requesting agency that using the 

acquisition services of another agency— 

(i) Satisfies the requesting agency’s 

schedule, performance, and delivery 

requirements (taking into account 

factors such as the servicing agency’s 

authority, experience, and expertise as 

well as customer satisfaction with the 

servicing agency’s past performance); 

(ii) Is cost effective (taking into 

account the reasonableness of the 

servicing agency’s fees); and 

(iii) Will result in the use of funds in 

accordance with appropriation 

limitations and compliance with the 

requesting agency’s laws and policies. 

(2) Direct acquisitions. Prior to 

placing an order against another 

agency’s indefinite-delivery vehicle, the 

requesting agency shall make a 

determination that use of another 

agency’s contract vehicle is the best 

procurement approach. At a minimum, 

the determination shall include an 

analysis, including factors such as: 

(i) The suitability of the contract 

vehicle; 

(ii) The value of using the contract 

vehicle, including— 

(A) The administrative cost savings 

from using an already existing contract; 

(B) Lower prices, greater number of 

vendors, and reasonable vehicle access 

fees; and 

(iii) The expertise of the requesting 

agency to place orders and administer 

them against the selected contract 

vehicle throughout the acquisition 

lifecycle. 

(b) Written agreement on 

responsibility for management and 

administration—(1) Assisted 

acquisitions. (i) Prior to the issuance of 

a solicitation, the servicing agency and 

the requesting agency shall both sign a 

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77736 Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 

written interagency agreement that 

establishes the general terms and 

conditions governing the relationship 

between the parties, including roles and 

responsibilities for acquisition planning, 

contract execution, and administration 

and management of the contract(s) or 

order(s). The requesting agency shall 

provide to the servicing agency any 

unique terms, conditions, and 

applicable agency-specific statutes, 

regulations, directives, and other 

applicable requirements for 

incorporation into the order or contract; 

for patent rights, see 27.304–2. In 

preparing interagency agreements to 

support assisted acquisitions, agencies 

should review the Office of Federal 

Procurement Policy guidance, 

Interagency Acquisitions, available at 

http://www.whitehouse.gov/omb/assets/ 

procurement/iac_revised.pdf. 

(ii) Each agency’s file shall include 

the interagency agreement between the 

requesting and servicing agency, and 

shall include sufficient documentation 

to ensure an adequate audit consistent 

with 4.801(b). 

(2) Direct acquisitions. The requesting 

agency administers the order; therefore, 

no written agreement with the servicing 

agency is required. 

17.502–2 The Economy Act. 

(a) The Economy Act (31 U.S.C. 1535) 

authorizes agencies to enter into 

agreements to obtain supplies or 

services by interagency acquisition. The 

Economy Act also provides authority for 

placement of orders between major 

organizational units within an agency; 

procedures for such intra-agency 

transactions are addressed in agency 

regulations. 

(b) The Economy Act applies when 

more specific statutory authority does 

not exist. Examples of more specific 

authority are 40 U.S.C. 501 for the 

Federal Supply Schedules (subpart 8.4), 

and 40 U.S.C. 11302(e) for 

Governmentwide acquisition contracts 

(GWACs). 

(c) Requirements for determinations 

and findings. (1) Each Economy Act 

order to obtain supplies or services by 

interagency acquisition shall be 

supported by a determination and 

findings (D&F). The D&F shall state 

that— 

(i) Use of an interagency acquisition is 

in the best interest of the Government; 

and 

(ii) The supplies or services cannot be 

obtained as conveniently or 

economically by contracting directly 

with a private source. 

(2) If the Economy Act order requires 

contract action by the servicing agency, 

the D&F must also include a statement 

that at least one of the following 

circumstances applies: 

(i) The acquisition will appropriately 

be made under an existing contract of 

the servicing agency, entered into before 

placement of the order, to meet the 

requirements of the servicing agency for 

the same or similar supplies or services. 

(ii) The servicing agency has the 

capability or expertise to enter into a 

contract for such supplies or services 

that is not available within the 

requesting agency. 

(iii) The servicing agency is 

specifically authorized by law or 

regulation to purchase such supplies or 

services on behalf of other agencies. 

(3) The D&F shall be approved by a 

contracting officer of the requesting 

agency with authority to contract for the 

supplies or services to be ordered, or by 

another official designated by the 

agency head, except that, if the servicing 

agency is not covered by the Federal 

Acquisition Regulation, approval of the 

D&F may not be delegated below the 

senior procurement executive of the 

requesting agency. 

(4) The requesting agency shall 

furnish a copy of the D&F to the 

servicing agency with the order. 

(d) Business-case analysis 

requirements for multi-agency contracts. 

In order to establish a multi-agency 

contract in accordance with Economy 

Act authority, a business-case analysis 

must be prepared by the servicing 

agency. The business-case analysis 

shall— 

(1) Consider strategies for the effective 

participation of small businesses during 

acquisition planning (see 7.103(s)); 

(2) Detail the administration of such 

contract, including an analysis of all 

direct and indirect costs to the 

Government of awarding and 

administering such contract; 

(3) Describe the impact such contract 

will have on the ability of the 

Government to leverage its purchasing 

power, e.g., will it have a negative effect 

because it dilutes other existing 

contracts; 

(4) Include an analysis concluding 

that there is a need for establishing the 

multi-agency contract; and 

(5) Document roles and 

responsibilities in the administration of 

the contract. 

(e) Payment. (1) The servicing agency 

may ask the requesting agency, in 

writing, for advance payment for all or 

part of the estimated cost of furnishing 

the supplies or services. Adjustment on 

the basis of actual costs shall be made 

as agreed to by the agencies. 

(2) If approved by the servicing 

agency, payment for actual costs may be 

made by the requesting agency after the 

supplies or services have been 

furnished. 

(3) Bills rendered or requests for 

advance payment shall not be subject to 

audit or certification in advance of 

payment. 

(4) If the Economy Act order requires 

use of a contract by the servicing 

agency, then in no event shall the 

servicing agency require, or the 

requiring agency pay, any fee or charge 

in excess of the actual cost (or estimated 

cost if the actual cost is not known) of 

entering into and administering the 

contract or other agreement under 

which the order is filled. 

17.503 Ordering procedures. 

(a) Before placing an order for 

supplies or services with another 

Government agency, the requesting 

agency shall follow the procedures in 

17.502–1 and, if under the Economy 

Act, also 17.502–2. 

(b) The order may be placed on any 

form or document that is acceptable to 

both agencies. The order should 

include— 

(1) A description of the supplies or 

services required; 

(2) Delivery requirements; 

(3) A funds citation; 

(4) A payment provision (see 17.502– 

2(e) for Economy Act orders); and 

(5) Acquisition authority as may be 

appropriate (see 17.503(d)). 

(c) The requesting and servicing 

agencies should agree to procedures for 

the resolution of disagreements that may 

arise under interagency acquisitions, 

including, in appropriate circumstances, 

the use of a third-party forum. If a third 

party is proposed, consent of the third 

party should be obtained in writing. 

(d) When an interagency acquisition 

requires the servicing agency to award 

a contract, the following procedures also 

apply: 

(1) If a justification and approval or a 

D&F (other than the requesting agency’s 

D&F required in 17.502–2(c)) is required 

by law or regulation, the servicing 

agency shall execute and issue the 

justification and approval or D&F. The 

requesting agency shall furnish the 

servicing agency any information 

needed to make the justification and 

approval or D&F. 

(2) The requesting agency shall also 

be responsible for furnishing other 

assistance that may be necessary, such 

as providing information or special 

contract terms needed to comply with 

any condition or limitation applicable to 

the funds of the requesting agency. 

(3) The servicing agency is 

responsible for compliance with all 

other legal or regulatory requirements 

applicable to the contract, including— 

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Federal Register / Vol. 75, No. 238 / Monday, December 13, 2010 / Rules and Regulations 77737 

(i) Having adequate statutory 

authority for the contractual action; and 

(ii) Complying fully with the 

competition requirements of part 6 (see 

6.002). However, if the servicing agency 

is not subject to the Federal Acquisition 

Regulation, the requesting agency shall 

verify that contracts utilized to meet its 

requirements contain provisions 

protecting the Government from 

inappropriate charges (for example, 

provisions mandated for FAR agencies 

by part 31), and that adequate contract 

administration will be provided. 

(e) Nonsponsoring Federal agencies 

may use a Federally Funded Research 

and Development Center (FFRDC) only 

if the terms of the FFRDC’s sponsoring 

agreement permit work from other than 

a sponsoring agency. Work placed with 

the FFRDC is subject to the acceptance 

by the sponsor and must fall within the 

purpose, mission, general scope of 

effort, or special competency of the 

FFRDC. (See 35.017; see also 6.302 for 

procedures to follow where using other 

than full and open competition.) The 

nonsponsoring agency shall provide to 

the sponsoring agency necessary 

documentation that the requested work 

would not place the FFRDC in direct 

competition with domestic private 

industry. 

17.504 Reporting requirements. 

The senior procurement executive for 

each executive agency shall submit to 

the Director of OMB an annual report on 

interagency acquisitions, as directed by 

OMB. 

PART 18—EMERGENCY 

ACQUISITIONS 

■ 7. Amend section 18.113 by revising 

the section heading to read as follows: 

18.113 Interagency acquisitions. 

* * * * * 

PART 35—RESEARCH AND 

DEVELOPMENT CONTRACTING 

■ 8. Amend section 35.017–3 by 

revising the second sentence of 

paragraph (b) to read as follows: 

35.017–3 Using an FFRDC. 

* * * * * 

(b) * * * The nonsponsoring agency 

is responsible for making the 

determination required by 17.502–2(c) 

and providing the documentation 

required by 17.503(e). * * * 

PART 41—ACQUISITION OF UTILITY 

SERVICES 

■ 9. Revise section 41.206 to read as 

follows: 

41.206 Interagency agreements. 

Agencies shall use interagency 

agreements (e.g., consolidated purchase, 

joint use, or cross-service agreements) 

when acquiring utility service or 

facilities from other Government 

agencies and shall comply with the 

policies and procedures at 17.502–2, 

The Economy Act. 

[FR Doc. 2010–30561 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 2, 19, and 52 

[FAC 2005–47; FAR Case 2009–019; Item 

IV; Docket 2010–0108, Sequence 1] 

RIN 9000–AL77 

Federal Acquisition Regulation; Small 

Disadvantaged Business SelfCertification 

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 

amending the Federal Acquisition 

Regulation (FAR) to incorporate changes 

made by the Small Business 

Administration (SBA) to its Small 

Disadvantaged Business (SDB) Program. 

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. 

ADDRESSES: Submit comments 

identified by FAC 2005–47, FAR Case 

2009–019, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–019’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–019.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–019’’ on your attached 

document. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), ATTN: Hada Flowers, 1275 

First Street, NE., Washington, DC 20417. 

Instructions: Please submit comments 

only and cite FAC 2005–47, FAR Case 

2009–019, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Karlos Morgan, Procurement Analyst, at 

(202) 501–2364. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–47, FAR Case 2009–019. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule amends the FAR to 

allow subcontractors on Federal 

contracts to self-represent their status as 

SDBs to prime contractors. SBA 

published an interim final rule in the 

Federal Register at 73 FR 57490, 

October 3, 2008, to allow SDB 

subcontractors to provide written 

statements to prime contractors 

representing in good faith their status as 

an SDB concern for the purposes of 

subcontract awards under Federal prime 

contracts. Under SBA’s previous 

regulation, only those firms that were 

certified by SBA as SDBs could 

participate as SDBs for Federal prime 

contract and subcontract opportunities. 

SBA stated that, effective October 3, 

2008, it would no longer serve as a 

source for SDB certification for firms 

seeking to establish themselves as SDBs. 

The revision to SBA’s regulation 

removed any uncertainty regarding SDB 

subcontractors’ ability to self-represent 

themselves in good faith to prime 

contractors. 

In order to maintain consistency 

between the SBA regulations and the 

FAR, the Councils are amending the 

FAR as outlined below: 

• FAR 2.101, Definitions: The term 

‘‘small disadvantaged business concern’’ 

is revised to be consistent with 13 CFR 

part 124, which continues to recognize 

small business concerns that have been 

certified by SBA, and to add language 

that allows small business concerns to 

self-represent their status as SDBs for 

subcontracts. 

• FAR 19.301–1, Representations by 

the offeror: Amended to update 

citations. 

• FAR 19.703, Eligibility 

requirements for participating in the 

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