52846 Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket FAR 2009–0001, Sequence 8] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–37; 

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 in this Federal Acquisition 

Circular (FAC) 2005–37. 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 and comment 

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 2005–37 and the 

specific FAR case numbers. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

LIST OF RULES IN FAC 2005–37 

Item Subject FAR case Analyst 

I ............ Registry of Disaster Response Contractors (Interim) ...................................................................... 2008–035 Loeb. 

II ........... Limiting Length of Noncompetitive Contracts in ‘‘Unusual and Compelling Urgency’’ Circumstances.2007–008 Woodson. 

III .......... GAO Access to Contractor Employees ........................................................................................... 2008–026 Loeb. 

IV .......... Use of Commercial Services Item Authority (Interim) ..................................................................... 2008–034 Chambers. 

V ........... Limitations on Pass-Through Charges (Interim) .............................................................................. 2008–031 Chambers. 

VI .......... Award Fee Language Revision (Interim) ......................................................................................... 2008–008 Chambers. 

VII ......... National Response Framework ....................................................................................................... 2009–003 Loeb. 

VIII ........ 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 2005–37 amends the FAR as 

specified below: 

Item I—Registry of Disaster Response 

Contractors (FAR Case 2008–035) 

(Interim) 

This interim rule amends the FAR at 

parts 2, 4, 7, 10, 13, 18, 26, and 52 to 

implement the Registry of Disaster 

Response Contractors provision, section 

697 of the Department of Homeland 

Security (DHS) Appropriations Act, 

2007 (6 U.S.C. 796). 

The Act requires that the Federal 

Emergency Management Agency 

(FEMA) establish and maintain this 

registry. It also requires that the registry 

include business information consistent 

with the data that is currently required 

in the Central Contractor Registration 

(CCR) with two additional categories 

added to reflect the area served by the 

business, and the bonding level of the 

business concern. The CCR has been 

updated to include these changes. In 

addition, the FEMA website has been 

updated with a link to the CCR search 

feature which provides access to the 

disaster response registry. Contracting 

officers will be required to consult this 

registry during market research and 

acquisition planning. 

Item II—Limiting Length of 

Noncompetitive Contracts in ‘‘Unusual 

and Compelling Urgency’’ 

Circumstances (FAR Case 2007–008) 

This final rule amends the FAR to 

require that contracts awarded under 

the authority of FAR 6.302–2, Unusual 

and compelling urgency, 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. The determination 

may be made after contract award when 

making the determination prior to 

award would unnecessarily delay the 

award. The rule applies to any contract 

in an amount greater than the simplified 

acquisition threshold. The rule 

implements the requirements of section 

862 of the Duncan Hunter National 

Defense Authorization Act (NDAA) for 

Fiscal Year 2009 (Pub. L. 110–417). The 

rule is intended to strengthen Federal 

acquisition competition policies. 

Item III—GAO Access to Contractor 

Employees (FAR Case 2008–026) 

This final rule converts the interim 

rule published in the Federal Register at 

74 FR 14649, March 31, 2009, to a final 

rule without change. The interim rule 

amended FAR 52.215–2, Audits and 

Records—Negotiation, and FAR 52.214– 

26, Audit and Records—Sealed Bidding, 

to allow the Government Accountability 

Office to interview current contractor 

employees when conducting audits. The 

rule does not apply to the acquisition of 

commercial items; therefore, FAR 

12.503 was amended to add the 

exemption of this rule. This change 

implemented section 871 of the Duncan 

Hunter NDAA for Fiscal Year 2009 (Pub. 

L. 110–417). 

Item IV—Use of Commercial Services 

Item Authority (FAR Case 2008–034) 

(Interim) 

This interim rule amends the FAR to 

implement section 868 of the Duncan 

Hunter NDAA for Fiscal Year 2009 (Pub. 

L. 110–417). Section 868 provides that 

the FAR shall be amended with respect 

to the procurement of commercial 

services that are not offered and sold 

competitively in substantial quantities 

in the commercial marketplace, but are 

of a type offered and sold competitively 

in substantial quantities in the 

commercial marketplace. Such services 

may be considered commercial items 

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Federal Register / Vol. 74, No. 197 / Wednesday, October 14, 2009 / Rules and Regulations 52847 

only if the contracting officer has 

determined in writing that the offeror 

has submitted sufficient information to 

evaluate, through price analysis, the 

reasonableness of the price for these 

services. 

The rule details the information the 

contracting officer may consider in 

order to make this determination. The 

rule further details, when this 

determination cannot be made, the 

information which may be requested to 

determine price reasonableness. 

Item V—Limitations on Pass-Through 

Charges (FAR Case 2008–031) (Interim) 

This interim rule implements section 

866 of the Duncan Hunter 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). 

Section 866 requires the Councils to 

amend the FAR to minimize excessive 

pass-through charges by contractors 

from subcontractors, or of 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, 

this interim rule includes 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 VI—Award Fee Language Revision 

(FAR Case 2008–008) (Interim) 

This interim rule amends the FAR to 

implement section 814 of the John 

Warner NDAA of Fiscal Year 2007 (Pub. 

L. 109–364) and section 867 of the 

Duncan Hunter NDAA of Fiscal Year 

2009 (Pub. L. 110–417). This rule 

requires agencies to— 

(1) Link award fees to acquisition 

objectives in the areas of cost, schedule, 

and technical performance; 

(2) Clarify that a base fee amount 

greater than zero may be included in a 

cost plus award fee type contract at the 

discretion of the contracting officer; 

(3) Prescribe narrative ratings that will 

be utilized in award fee evaluations; 

(4) Prohibit the issuance of award fees 

for a rating period if the contractor’s 

performance is judged to be below 

satisfactory; 

(5) Conduct a risk and cost benefit 

analysis and consider the results of the 

analysis when determining whether to 

use an award-fee type contract or not; 

(6) Include specific content in the 

award-fee plans; and 

(7) Prohibit the rolling over of 

unearned award fees to subsequent 

rating periods. 

This FAR change will integrate where 

appropriate, FAR part 7, Acquisition 

Planning, and FAR part 16, Contract 

Types, to improve agency use and 

decision making when using incentive 

contracts. 

Item VII—National Response 

Framework (FAR Case 2009–003) 

This final rule amends the FAR part 

18 to remove all references to the 

National Response Plan (NRP) and 

Incidents of National Significance. In 

January 2008, FEMA, a component 

within the DHS, reissued the NRP as the 

National Response Framework (NRF). 

With the reissuance, the term ‘‘Incidents 

of National Significance’’ was 

eliminated. The changes became 

effective on March 22, 2008. Both the 

NRP and the term ‘‘Incidents of National 

Significance’’ are now obsolete. 

This rule is informational and 

represents minor updates for 

consistency with FEMA references. 

FEMA provides a link at their website 

for Frequently Asked Questions that 

explain the rationale for and the 

changes to the NRF. 

This rule does not have a significant 

impact on Government or any 

automated systems. 

Item VIII—Technical Amendments 

Editorial changes are made at FAR 

5.102, 52.213–4, and 52.244–6. 

Dated: October 5, 2009. 

Al Matera, 

Director, Acquisition Policy Division. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005-37 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator for the National 

Aeronautics and Space Administration. 

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2005-37 is effective October 14, 

2009, except for Item VII, which is 

effective November 13, 2009. 

Dated: October 5, 2009. 

Shay D. Assad, 

Director, Defense Procurement and 

Acquisition Policy. 

Dated: October 2, 2009. 

David A. Drabkin, 

Senior Procurement Executive, Office of 

Acquisition Policy, U.S. General Services 

Administration. 

Dated: October 6, 2009. 

Leigh Pomponio, 

Procurement Analyst, National Aeronautics 

and Space Administration. 

[FR Doc. E9–24551 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 2, 4, 7, 10, 13, 18, 26, and 

52 

[FAC 2005–37; FAR Case 2008–035; Item 

I; Docket 2009–0033, Sequence 1] 

RIN 9000–AL30 

Federal Acquisition Regulation; FAR 

Case 2008–035, Registry of Disaster 

Response Contractors 

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 Section 

697, Registry of Disaster Response 

Contractors (Pub. L. 109–295), the 

Department of Homeland Security 

(DHS) Appropriations Act, 2007 (6 

U.S.C. 796). The Act requires that the 

Administrator of the Federal Emergency 

Management Agency (FEMA), a 

component of DHS, establish and 

maintain a registry of contractors, which 

are willing to perform debris removal, 

distribution of supplies, reconstruction, 

and other disaster or emergency relief 

activities. In addition, the Act requires 

contracting officers to consult the 

Registry during market research and 

acquisition planning. 

DATES: Effective Date: October 14, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

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