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###### Department of Defense

###### General Services Administration

###### National Aeronautics and Space Administration

          - 48 CFR Part 52
          - [FAC 2005-16; FAR Case 2006-012; Item IV; Docket 2006-0020, Sequence 24]
          - RIN 9000-AK51

# 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 agreed on a final rule amending the Federal Acquisition Regulation (FAR) to update the required contract clauses that implement provisions of law or executive orders for acquisitions of commercial items.

# DATES:

*Effective Date*:  March 22, 2007.                        

# FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at (202) 208-4949.  Please cite FAC 2005-16, FAR case 2006-012.  For information pertaining to status or publication schedules, contact the FAR Secretariat at (202) 501-4755.

# SUPPLEMENTARY INFORMATION:

## A.  Background

In accordance with Section 8002 of Public Law 103-355 (41 U.S.C. 264, note), contract clauses applicable to acquisitions of commercial items are limited, to the maximum extent practicable, to clauses that are—

(1)  Required to implement provisions of law or executive orders applicable to the acquisition of commercial items; or

(2)  Determined to be consistent with customary commercial practice.

The FAR clause at 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders—Commercial Items, incorporates, by reference, the contract clauses that the contracting officer may select to implement provisions of law or executive orders for acquisitions of commercial items.  The FAR clause at 52.219-16, Liquidated Damages—Subcontracting Plan, is a contract clause that is required to implement 15 U.S.C. 637(d)(4)(F)(i).  However, the FAR clause 52.219-16 is not included in the list of clauses for commercial contracts in FAR 52.212-5.  The rule incorporates the FAR clause 52.219-16 in the list of clauses for commercial contracts that the contracting officer may select.

                        DoD, GSA, and NASA published a proposed rule in the                         **Federal Register**                         at 42344, July 26, 2006.  The Councils received no comments on the proposed rule.  Therefore, the Councils have adopted the proposed rule as final without change.                    

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 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                               ( print page 13589)                            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 merely clarifies existing language and does not change existing policy.                    

## 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. 3501,                         *et seq.*

# List of Subjects in 48 CFR Part 52

      - Government procurement

Dated:  March 15, 2007.

Ralph De Stefano,

Director, Contract Policy Division.

Therefore, DoD, GSA, and NASA amend 48 CFR part 52 as set forth below:

# PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

1.  The authority citation for 48 CFR part 52 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 52.212-5 by revising the date of the clause; redesignating paragraphs (b)(10) through (b)(35) as (b)(11) through (b)(36), respectively, and adding a new paragraph (b)(10) to read as follows: 

52.212-5

* * * * *

CONTRACT TERMS AND CONDITIONS REQUIRED TO IMPLEMENT STATUTES OR EXECUTIVE ORDERS— COMMERCIAL ITEMS (MAR 2007)

* * * * *

(b)  *  *  *

_(10)  52.219-16, Liquidated Damages—Subcontracting Plan (JAN 1999) (15 U.S.C. 637(d)(4)(F)(i)).

* * * * *

[FR Doc. 07-1360 Filed 3-21-07; 8:45 am]

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