[Federal Register Volume 75, Number 238 (Monday, December 13, 2010)]
[Rules and Regulations]
[Pages 77745-77747]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-30568]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Chapter 1

[Docket FAR 2010-0077, Sequence 9]


Federal Acquisition Regulation; Federal Acquisition Circular 
2005-47; Small Entity Compliance Guide

AGENCIES: Department of Defense (DoD), General Services Administration 
(GSA), and National Aeronautics and Space Administration (NASA).

ACTION: Small Entity Compliance Guide.

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SUMMARY: This document is issued under the joint authority of the 
Secretary of Defense, the Administrator of General Services and the 
Administrator of the National Aeronautics and Space Administration. 
This Small Entity Compliance Guide has been prepared in accordance with 
section 212 of the Small Business Regulatory Enforcement Fairness Act 
of 1996. It consists of a summary of rules appearing in Federal 
Acquisition Circular (FAC) 2005-47, which amend the FAR. An asterisk 
(*) next to a rule indicates that a regulatory flexibility analysis has 
been performed. Interested parties may obtain further information 
regarding these rules by referring to FAC 2005-47, which precedes this 
document. These documents are also 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. Please cite FAC 2005-47 and the specific FAR case number. 
For information pertaining to status or publication schedules, contact 
the Regulatory Secretariat at (202) 501-4755.

[[Page 77746]]



                                          List of Rules in FAC 2005-47
----------------------------------------------------------------------------------------------------------------
                 Item                              Subject                FAR Case              Analyst
----------------------------------------------------------------------------------------------------------------
I.....................................  Notification of Employee             2010-006  McFadden.
                                         Rights Under the National
                                         Labor Relations Act
                                         (Interim).
*II...................................  HUBZone Program Revisions....        2006-005  Morgan.
III...................................   Preventing Abuse of                 2008-032   Sakalos.
                                         Interagency Contracts
                                         (Interim).
IV....................................   Small Disadvantaged Business        2009-019  Morgan.
                                         Self-Certification (Interim).
V.....................................   Uniform Suspension and              2009-036  Gary.
                                         Debarment Requirement
                                         (Interim).
VI....................................  Limitation on Pass-Through           2008-031   Chambers.
                                         Charges.
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 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

[[Page 77747]]

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., pass-
through 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.
[FR Doc. 2010-30568 Filed 12-10-10; 8:45 am]
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