Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52849 

and other disaster or emergency relief 

activities established in accordance with 

6 U.S.C. 796, Registry of Disaster 

Response Contractors. The Registry 

contains information on contractors 

who are willing to perform disaster or 

emergency relief activities within the 

United States and its outlying areas. The 

Registry is located at www.ccr.gov and 

alternately through the FEMA website at 

http://www.fema.gov/business/ 

index.shtm. (See 26.205). 

* * * * * 

PART 4—ADMINISTRATIVE MATTERS 

4.1104 [Redesignated as 4.1105] 

■ 3. Redesignate section ‘‘4.1104’’ as 

section ‘‘4.1105’’, and add a new section 

‘‘4.1104’’ to read as follows: 

4.1104 Disaster Response Registry. 

Contracting officers shall consult the 

Disaster Response Registry at 

www.ccr.gov when contracting for 

debris removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities inside the 

United States and outlying areas. (See 

26.205). 

PART 7—ACQUISITION PLANNING 

■ 4. Amend section 7.103 by adding 

paragraph (v) to read as follows: 

7.103 Agency-head responsibilities. 

* * * * * 

(v) Ensuring that contracting officers 

consult the Disaster Response Registry 

at www.ccr.gov as a part of acquisition 

planning for debris removal, 

distribution of supplies, reconstruction, 

and other disaster or emergency relief 

activities inside the United States and 

outlying areas. (See 26.205). 

PART 10—MARKET RESEARCH 

■ 5. Amend section 10.000 by revising 

the second sentence to read as follows: 

10.000 Scope of part. 

* * * This part implements the 

requirements of 41 U.S.C. 253a(a)(1), 41 

U.S.C. 264b, 10 U.S.C. 2377, and 6 

U.S.C. 796. 

■ 6. Amend section 10.001 by revising 

paragraph (a)(2)(v) to read as follows: 

10.001 Policy. 

(a) * * * 

(2) * * * 

(v) On an ongoing basis, and to the 

maximum extent practicable, take 

advantage of commercially available 

market research methods in order to 

identify effectively the capabilities, of 

small businesses and new entrants into 

Federal contracting, that are available in 

the marketplace for meeting the 

requirements of the agency in 

furtherance of— 

(A) A contingency operation or 

defense against or recovery from 

nuclear, biological, chemical, or 

radiological attack; and 

(B) Disaster relief to include debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities. (See 26.205). 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

13.201 [Amended] 

■ 7. Amend section 13.201 by removing 

from paragraph (d) ‘‘4.1104’’ and adding 

‘‘4.1105’’ in its place. 

PART 18—EMERGENCY 

ACQUISITIONS 

■ 8. Revise section 18.102 to read as 

follows: 

18.102 Central contractor registration. 

Contractors are not required to be 

registered in the Central Contractor 

Registration (CCR) for contracts awarded 

to support unusual and compelling 

needs or emergency acquisitions. (See 

4.1102). However, contractors are 

required to register with CCR in order to 

gain access to the Disaster Response 

Registry. Contracting officers shall 

consult the Disaster Response Registry 

at www.ccr.gov to determine the 

availability of contractors for debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities inside the 

United States and outlying areas. (See 

26.205). 

PART 26—OTHER SOCIOECONOMIC 

PROGRAMS 

26.205 [Redesignated as 26.206] 

■ 9. Redesignate section ‘‘26.205’’ as 

section ‘‘26.206’’ and add a new section 

‘‘26.205’’ to read as follows: 

26.205 Disaster Response Registry. 

(a) Contracting officers shall consult 

the Disaster Response Registry at 

www.ccr.gov to determine the 

availability of contractors for debris 

removal, distribution of supplies, 

reconstruction, and other disaster or 

emergency relief activities inside the 

United States and outlying areas. 

(b) A list of prospective vendors 

voluntarily participating in the Disaster 

Response Registry can be retrieved 

using the CCR Search tool on the CCR 

webpage. These vendors may be 

identified by selecting the criteria for 

‘‘Disaster Response Contractors’’. 

Contractors are required to register with 

CCR in order to gain access to the 

Disaster Response Registry. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.204–7 [Amended] 

■ 10. Amend section 52.204–7 by 

removing from the introductory 

paragraph ‘‘4.1104’’ and adding 

‘‘4.1105’’ in its place. 

52.226–3 [Amended] 

■ 11. Amend section 52.226–3 by 

removing from the introductory 

paragraph ‘‘26.205(a)’’ and adding 

‘‘26.206(a)’’ in its place. 

52.226–4 [Amended] 

■ 12. Amend section 52.226–4 by 

removing from the introductory 

paragraph ‘‘26.205(b)’’ and adding 

‘‘26.206(b)’’ in its place. 

52.226–5 [Amended] 

■ 13. Amend section 52.226–5 by 

removing from the introductory 

paragraph ‘‘26.205(c)’’ and adding 

‘‘26.206(c)’’ in its place. 

[FR Doc. E9–24554 Filed 10–13–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 6 

[FAC 2005–37; FAR Case 2007–008; Item 

II; Docket 2007-0001, Sequence 14] 

RIN 9000–AK90 

Federal Acquisition Regulation; FAR 

Case 2007–008, Limiting Length of 

Noncompetitive Contracts in ‘‘Unusual 

and Compelling Urgency’’ 

Circumstances 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) are issuing a final rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

862 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (Pub. L. 110–417) and Office 

of Federal Procurement Policy (OFPP) 

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52850 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

Administrator’s memorandum of May 

31, 2007. The rule limits the length of 

contracts awarded noncompetitively 

under unusual and compelling urgency 

circumstances to the minimum contract 

period necessary to meet the 

requirements, and no longer than one 

year, unless the head of the agency 

determines that exceptional 

circumstances apply. 

DATES: Effective Date: October 14, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–37, FAR case 2007–008. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Office of Federal Procurement 

Policy (OFPP) Administrator’s 

memorandum of May 31, 2007, issued 

to Chief Acquisition Officers and Senior 

Procurement Executives, proposed 

several initiatives, including promoting 

competition in Federal acquisition, 

challenging any barriers to such 

competition, and reinvigorating the role 

of the competition advocate. Subsequent 

to issuance of the memorandum, OFPP 

submitted multiple business cases 

proposing FAR changes to strengthen 

Federal acquisition competition 

policies. These were established as 

individual FAR cases. This FAR case 

specifically addresses the OFPP 

initiative to limit the length of contracts 

awarded noncompetitively under the 

authorities for unusual and compelling 

urgency. DoD, GSA, and NASA 

published a proposed rule in the 

Federal Register at 73 FR 5784, January 

31, 2008. The 60-day comment period 

for the proposed rule ended March 31, 

2008. Two respondents provided 

comments for a total of eight comments. 

In October 2008 the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009, Pub. L. 110–417, was 

enacted. Section 862 of this Act 

amended section 303(d) of the Federal 

Property and Administrative Services 

Act of 1949 (41 U.S.C. 253(d) and 10 

U.S.C 2304(d)) to require that contracts 

awarded under the authority of 41 U.S.C 

252(c)(2) and 10 U.S.C. 2304(c) (FAR 

6.302–2, Unusual and compelling 

urgency), (1) may not exceed the time 

necessary to meet the unusual and 

compelling requirements, may not 

exceed the time for the agency to enter 

into another contract for the required 

goods and services through the use of 

competitive procedures, and may not 

exceed one year unless the head of the 

agency entering into the contract 

determines that exceptional 

circumstances apply; and (2) that the 

requirements in (1) of this paragraph 

apply to any contract in amount greater 

than the simplified acquisition 

threshold. 

The public comments and 

requirements of the Act were considered 

by the Councils in the formation of this 

final rule. 

Comment 1: One respondent 

recommended that the Councils should 

shorten the contract term to not exceed 

six months in lieu of the stated ‘‘no 

longer than one year.’’ 

Response: Non-concur. The time 

period is required by statute. 

Comment 2 and 3: One respondent 

stated that the term ‘‘head of the 

contracting activity’’ requires 

clarification. The respondent urges the 

rule refer to the definition for the ‘‘head 

of the contracting activity’’ by including 

FAR subpart 2.101 in FAR 6.302–2(d). 

Another respondent suggested that the 

rule specifically state whether or not the 

head of the contracting activity’s 

authority to approve a period of 

performance longer that one year is 

delegable. 

Response: Non-concur. The National 

Defense Authorization Act requires that 

the head of the agency make the 

determination required by FAR 6.302– 

2(d). ‘‘Head of the agency’’ is defined in 

FAR subpart 2.101 and does not require 

defining in FAR 6.302–2(d). 

The rule is silent on whether the 

authority may be delegated. However, 

FAR 1.108(b) provides that each 

authority is delegable unless specifically 

stated otherwise. 

Comment 4: Both respondents asked 

whether the approval process will be 

governed by FAR 6.304, which requires 

approval by other government officials 

depending on the monetary value of the 

proposed contract? The respondents 

urged that the process be simplified and 

duplication of paperwork reduced to 

prevent the filing of multiple 

justifications and approvals. 

Response: The approval process in 

6.302–2(d)(2) for the exceptional 

circumstances determination is not 

governed by FAR 6.304. The approval 

levels are different. The requirement for 

determining exceptional circumstances 

apply is separate from the approval 

process at FAR 6.304. The rule requires 

the determination be obtained prior to 

the award of the contract; or may be 

obtained after award when making the 

determination prior to award would 

unnecessarily delay the acquisition. 

Comment 5: The authority of FAR 

6.302–2(c)(1) currently allows urgent 

and compelling justifications to be 

‘‘made and approved’’ after contract 

award. A respondent suggested that the 

new FAR citation 6.302–2(d) be added 

to the 6.303 and 6.304 currently 

referenced in FAR 6.302–2(c)(1) to make 

it clear that this can still be done. 

Response: Non-Concur. As stated in 

the prior response, the approval process 

is not governed by FAR 6.303 or FAR 

6.304. The requirement for making the 

determination for a performance period 

greater than one year, by the head of the 

agency, for noncompetitive contracts in 

unusual urgency and compelling 

circumstances, is separate from the 

approval process at FAR 6.304. The rule 

provides for the determination for a 

performance period greater than one 

year to be obtained after contract award 

when making the determination prior to 

award would unreasonably delay the 

acquisition. 

Comment 6: One respondent urged 

that there be discussion added on the 

public availability of approval records 

filed by the head of the contracting 

activity. 

Response: Non-concur. FAR Case 

2008–003, Public Disclosure of 

Justification and Approval Documents 

for Noncompetitive Contracts-Section 

844 of the National Defense 

Authorization Act for Fiscal Year 2008 

(74 CFR 2731, January 15, 2009), 

requires the public disclosure of 

justification and approval documents 

for noncompetitive contracts which is a 

statutory requirement by 10 U.S.C. 2304 

and 41 U.S.C. 253. 

Comment 7: One respondent 

requested consideration of the impacts 

of subsequent changes to the contract 

awarded under the new rule (e.g., an 

amendment, a modification, or a followon contract) to the one-year contract 

award restriction. 

Response: Non-concur. This rule does 

not make changes to the existing 

regulations regarding use of noncompetitive awards. The contracting 

activity must still comply with the 

justification requirements at FAR 

subpart 6.3 when awarding an out-ofscope modification to a contract, or a 

follow-on contract. 

Comment 8: Consider a standing 

exception for certain multiple year nonseverable services (e.g., a major 

acquisition that requires a period of 

performance greater than one year in 

order to develop or manufacture an end 

product). 

Response: Non-concur. The rule 

provides for any exception to the oneyear limit by having the head of the 

agency make the determination for the 

longer performance contract period. 

This is not a significant regulatory 

action and, therefore, was not subject to 

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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52851 

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 Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration 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 addresses internal agency 

procedures and will benefit small 

entities by encouraging competition 

after a one year performance period, 

except when a longer performance 

period is properly approved. Therefore, 

a Final Regulatory Flexibility Analysis 

has not been performed. 

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. 

List of Subjects in 48 CFR Part 6 

Government procurement. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 6 as set forth below: 

PART 6—COMPETITION 

REQUIREMENTS 

■ 1. The authority citation for 48 CFR 

part 6 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). 

■ 2. Amend section 6.302–2 by adding 

paragraph (d) to read as follows: 

6.302–2 Unusual and compelling urgency. 

* * * * * 

(d) Period of Performance. The total 

period of performance of a contract 

awarded using this authority— 

(1) May not exceed the time 

necessary: 

(i) To meet the unusual and 

compelling requirements of the work to 

be performed under the contract; and 

(ii) For the agency to enter into 

another contract for the required goods 

and services through the use of 

competitive procedures. 

(2) May not exceed one year unless 

the head of the agency entering into the 

contract determines that exceptional 

circumstances apply. 

(3) The requirements in paragraphs (1) 

and (2) of this section shall apply to any 

contract in an amount greater than the 

simplified acquisition threshold. 

(4) The determination of exceptional 

circumstances is in addition to the 

approval of the justification in 6.304. 

(5) The determination may be made 

after contract award when making the 

determination prior to award would 

unreasonably delay the acquisition. 

[FR Doc. E9–24565 Filed 10–13–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 12 and 52 

[FAC 2005–37; FAR Case 2008–026; Item 

III; Docket 2009–0013, Sequence 1] 

RIN 9000–AL25 

Federal Acquisition Regulation; FAR 

Case 2008–026, GAO Access to 

Contractor Employees 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: The Civilian Agency 

Acquisition Council and the Defense 

Acquisition Regulations Council 

(Councils) have adopted as final, 

without change, an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement section 

871 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (NDAA) which allows the 

Government Accountability Office to 

interview current contractor employees 

during the audit of the contractor’s 

records. 

DATES: Effective Date: October 14, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Edward Loeb, Director, Contract Policy 

Division at (202) 501–0650. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. Please cite FAC 2005–37, FAR 

case 2008–026. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 871 of the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009 (NDAA) (Pub. L. 110– 

417) added language allowing the 

Comptroller General to interview 

current employees regarding 

transactions being examined during an 

audit of contracting records. The Act 

revises 41 U.S.C. 254d(c)(1) and 10 

U.S.C. 2313(c)(1) by inserting before the 

period: ‘‘and to interview any current 

employee regarding such transactions’’. 

To implement the Act, FAR clauses 

52.215–2, Audit and Records— 

Negotiation, and 52.214–26, Audit and 

Records—Sealed Bidding, were 

amended to add the required statutory 

language. The statute did not specify 

that section 871 apply to commercial 

item contracts and therefore was not 

applied to FAR clause 52.212–5, 

Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Order—Commercial Items. 

Section 34 of the Office of Federal 

Procurement Policy Act (OFPP), 41 

U.S.C. 430, exempts commercial item 

acquisitions from new provisions of 

law, such as section 871, unless (1) the 

law provides criminal or civilian 

penalties, (2) the law expressly refers to 

41 U.S.C. 430 and states that it applies 

to commercial item contracts, or (3) the 

FAR Council makes a written 

determination that it would not be in 

the best interest of the Federal 

Government to exempt commercial item 

contracts. Thus, this new provision was 

added to the list of inapplicable laws at 

FAR 12.503(a). 

DoD, GSA, and NASA published an 

interim rule with a request for 

comments in the Federal Register at 74 

FR 14649 on March 31, 2009. No 

comments were received. The interim 

rule is converted to a final rule without 

change. 

This is a significant regulatory action 

and, therefore, was subject to review 

under section 6(b) of Executive Order 

12886, 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 Department of Defense, the 

General Services Administration, and 

the National Aeronautics and Space 

Administration 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 only 

a small number of small businesses are 

audited by the Government 

Accountability Office (GAO). Currently 

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