[Federal Register Volume 75, Number 250 (Thursday, December 30, 2010)]
[Proposed Rules]
[Pages 82576-82577]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-32893]


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DEPARTMENT OF DEFENSE

GENERAL SERVICES ADMINISTRATION

NATIONAL AERONAUTICS AND SPACE ADMINISTRATION

48 CFR Part 49

[FAC 2005-48; FAR Case 2009-031; Item III; Docket 2010-0090, Sequence 
1]
RIN 9000-AL56


Federal Acquisition Regulation; Terminating Contracts

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

ACTION: Final rule.

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SUMMARY: DoD, GSA, and NASA are issuing a final rule amending the 
Federal Acquisition Regulation (FAR) to clarify the applicability of 
procedures regarding the termination of contracts to the acquisition of 
commercial items.

DATES: Effective Date: January 31, 2011.

FOR FURTHER INFORMATION CONTACT: For clarification of content, contact 
Ms. Jeritta Parnell, at (202) 501-4082. For information pertaining to 
status or publication schedules, contact the Regulatory Secretariat at 
(202) 501-4755. Please cite FAC 2005-48, FAR Case 2009-031.

SUPPLEMENTARY INFORMATION: 

I. Background

    DoD, GSA, and NASA published a proposed rule with request for 
comments in the Federal Register on May 20, 2010 (75 FR 28228). This 
rule clarifies that FAR part 49, Termination of Contracts, does not 
apply to the acquisition of commercial items when using FAR part 12 
procedures.

Discussion of Public Comments

    One respondent provided two comments. A discussion of the comments 
and the changes made to the proposed rule are summarized as follows:
    1. Comment: The respondent recommended clarifying the coverage at 
FAR 49.501 by moving the existing language to FAR 49.002. This language 
clarifies that FAR part 49 does not apply to commercial item contracts 
awarded using FAR part 12 procedures.
    Response: The Defense Acquisition Regulation Council and the 
Civilian Agency Acquisition Council (Councils) agree. The language at 
FAR 49.501, pertaining to the applicability of FAR part 49 to 
commercial item contracts has

[[Page 82577]]

been relocated to FAR 49.002. FAR 49.002(a) is reformatted by adding 
``(1)'' to existing language for sequencing. Additionally, new language 
was added in (a)(2) to clarify that FAR part 49 does not apply to the 
acquisition of commercial items when using procedures at FAR part 12.
    2. Comment: The respondent recommends simplifying FAR 49.502(a) by 
removing and relocating the reference to the exceptions for FAR 52.212-
4 and 52.213-4 to FAR 49.002.
    Response: The Councils agree. The language pertaining to FAR 
52.212-4 was relocated to FAR 49.002 as addressed under the first 
comment. Reference to FAR 52.213-4 remains in FAR 49.501.

II. Executive Order 12866

    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 is not a 
major rule under 5 U.S.C. 804.

III. Regulatory Flexibility Act

    DOD, GSA, and NASA certify that this final rule will not 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 entities. The rule merely clarifies that FAR part 49 does not 
apply to the acquisition of commercial items when using procedures in 
FAR part 12.

IV. Paperwork Reduction Act

    The final rule does not contain any information collection 
requirements that require the approval of the Office of Management and 
Budget under the Paperwork Reduction Act (44 U.S.C. chapter 35).

List of Subjects in 48 CFR Part 49

    Government procurement.

    Dated: December 22, 2010.
Millisa Gary,
Acting Director, Federal Acquisition Policy Division.

0
Therefore, DoD, GSA, and NASA amend 48 CFR part 49 as set forth below:

PART 49--TERMINATION OF CONTRACTS

0
1. The authority citation for 48 CFR part 49 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).

0
2. Amend section 49.002 by revising paragraph (a) to read as follows:


49.002  Applicability.

    (a)(1) This part applies to contracts that provide for termination 
for the convenience of the Government or for the default of the 
contractor (see also 12.403 and 13.302-4).
    (2) This part does not apply to commercial item contracts awarded 
using part 12 procedures. See 12.403 for termination policies for 
contracts for the acquisition of commercial items. However, for 
contracts for the acquisition of commercial items, this part provides 
administrative guidance which may be followed unless it is inconsistent 
with the requirements and procedures in 12.403, Termination, and the 
clause at 52.212-4, Contract Terms and Conditions--Commercial Items.
* * * * *

0
3. Revise section 49.501 to read as follows:


49.501  General.

    This subpart prescribes the principal contract termination clauses. 
This subpart does not apply to contracts that use the clause at 52.213-
4, Terms and Conditions--Simplified Acquisitions (Other Than Commercial 
Items). In appropriate cases, agencies may authorize the use of special 
purpose clauses, if consistent with this chapter.

[FR Doc. 2010-32893 Filed 12-29-10; 8:45 am]
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