12690 Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Chapter 1

Federal Acquisition Circular 90–46;

Introduction

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Summary presentation of final

and interim rules.

SUMMARY: This document summarizes

the Federal Acquisition Regulation

(FAR) rules issued by the FAR Council

in this Federal Acquisition Circular

(FAC) 90–46. Each rule follows this

document in the order listed below. A

companion document, the Small Entity

Compliance Guide, follows this FAC

and may be located on the internet at

http://www.gsa.gov/far/SECG.

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 or subject area. For general

information, contact Beverly Fayson,

Room 4037, GS Building, Washington,

DC 20405, (202) 501–4755. Please cite

FAC 90–46 and specific FAR case

number(s).

SUPPLEMENTARY INFORMATION: Federal

Acquisition Circular 90–46 amends the

Federal Acquisition Regulation (FAR) as

specified below:

Item Subject FAR

Case Analyst

I ................... Gratuities .................................................................................................................................................... 96–300 Linfield.

II .................. Electronic Contracting ................................................................................................................................ 91–104 DeStefano.

III ................. Office of Federal Procurement Policy Letter 93–1, Management Oversight of Service Contracting ........ 94–008 O’Neill.

IV ................. Performance Incentives for Fixed-Price Contracts .................................................................................... 93–603 DeStefano.

V .................. Federal Compliance with Right-to-Know Laws and Pollution Prevention Requirements (Interim) ........... 92–054B Linfield.

VI ................. Buy American Act—Construction (Grimberg Decision) ............................................................................. 91–119 Linfield.

VII ................ Collection of Historically Black Colleges and Universities/Minority Institutions Award Data ..................... 95–306 Klein.

VIII ............... Allowability of Foreign Selling Costs .......................................................................................................... 95–021 DeStefano.

IX ................. Independent Research and Development/Bid and Proposal Costs in Cooperative Agreements ............. 95–024 Olson.

X .................. Prompt Payment ......................................................................................................................................... 91–091 Olson.

XI ................. Attorneys’ Fees in GAO Protests ............................................................................................................... 96–016 O’Neill.

XII ................ Contractors’ Purchasing Systems Reviews ............................................................................................... 94–605 Klein.

XIII ............... Performance-Based Payments ................................................................................................................... 96–005 Olson.

XIV .............. Technical Corrections .................................................................................................................................

Item I—Gratuities (FAR Case 96–300)

The interim rule published as Item III

of Federal Acquisition Circular (FAC)

90–40 is converted to a final rule

without change. The rule amended FAR

3.202 and 52.203–3 to exempt

solicitations and contracts which do not

exceed the simplified acquisition

threshold from the prescribed use of the

‘‘Gratuities’’ clause.

Item II—Electronic Contracting (FAR

Case 91–104)

The interim rule published as Item II

of FAC 90–29 is converted to a final rule

with amendments in Parts 5, 14, 15, and

52. The rule facilitates the use of

electronic data interchange in

Government contracting and

complements the rule published as Item

II of FAC 90–40 pertaining to the

Federal Acquisition Computer Network.

Item III—Office of Federal Procurement

Policy Letter 93–1, Management

Oversight of Service Contracting (FAR

Case 94–008)

This final rule amends FAR 37.000

and 37.102, and adds a new Subpart

37.5, to implement OFPP Policy Letter

93–1, Management Oversight of Service

Contracting. The policy letter provides

Governmentwide guiding principles

which are intended to improve the

acquisition, management, and

administration of service contracts. This

rule also amends FAR 9.505–3 and

35.017–2 to remove references to OMB

Circular A–120, Guidelines for the Use

of Advisory and Assistance Services,

which was rescinded by OMB on

November 19, 1993.

Item IV—Performance Incentives for

Fixed-Price Contracts (FAR Case 93–

603)

This final rule amends FAR Parts 16

and 52 to permit the use of award-fee

provisions as performance incentives in

fixed-price contracts.

Item V—Federal Compliance With

Right-To-Know Laws and Pollution

Prevention Requirements (FAR Case

92–054B)

This interim rule adds a new FAR

Subpart 23.10, and a new clause at

52.223–5 to implement Executive Order

(E.O.) 12856 of August 3, 1993, Federal

Compliance with Right-To-Know Laws

and Pollution Prevention Requirements.

The E.O. requires that a contract

performed on a Federal facility shall

provide that the contractor supply

information on its use of certain

hazardous or toxic substances in the

performance of the contract. This

information is required to enable

Federal facilities to comply with the

reporting and emergency planning

requirements of the Pollution

Prevention Act of 1990 and the

Emergency Planning and Community

Right-To-Know Act of 1986.

Item VI—Buy American Act—

Construction (Grimberg Decision) (FAR

Case 91–119)

This final rule amends FAR Subpart

25.2 and the associated clauses at

52.225–5 and 52.225–15 to add

guidance on exceptions to the Buy

American Act, both pre-award and postaward. The rule adds two new

solicitation provisions at 52.225–12 and

52.225–13 for use in solicitations for

construction in the United States. These

solicitation provisions set forth

procedures by which offerors may

request determinations regarding the

inapplicability of the Buy American

Act. The rule also adds a new section at

25.206, which provides guidance

regarding instances of noncompliance

with the Buy American Act.
Federal Register / Vol. 62, No. 51 / Monday, March 17, 1997 / Rules and Regulations 12691

Item VII—Collection of Historically

Black Colleges and Universities/

Minority Institutions Award Data (FAR

Case 95–306)

This final rule adds a new FAR

Subpart 26.3 and a new solicitation

provision at 52.226–2 to implement

Executive Order 12928, which requires

agencies to provide periodic reporting

on the progress made in award of

contracts to Historically Black Colleges

and Universities and Minority

Institutions.

Item VIII—Allowability of Foreign

Selling Costs (FAR Case 95–021)

This final rule revises FAR 31.205–

38(c)(2) by removing the ceiling on

allowable foreign selling costs. The rule

also amends 31.205–1, Public relations

and advertising costs, by deleting

reference to the ceiling limitation, and

further revises 31.205–38(c)(2) by

deleting obsolete language.

Item IX—Independent Research and

Development/Bid and Proposal Costs in

Cooperative Agreements (FAR Case 95–

024)

This final rule amends the cost

principle at FAR 31.205–18,

Independent research and development

(IR&D) and bid and proposal costs, by

removing from paragraph (e) the

prohibition against treatment of

contractor IR&D contributions under

NASA cooperative arrangements as

allowable indirect costs.

Item X—Prompt Payment (FAR Case

91–091)

This final rule amends FAR 32.102,

Subpart 32.9, and related clauses at

52.212–4, 52.232–5, 52.232–8, 52.232–

25, 52.232–26, and 52.232–27 in order

to implement changes made in OMB

Circular A–125 (Revised), dated

December 12, 1989, to comply with the

Prompt Payment Act Amendments of

1988 (Public Law 100–496). The rule

also contains amendments to clarify and

simplify the FAR text and clauses.

Item XI—Attorneys’ Fees in GAO

Protests (FAR Case 96–016)

This final rule amends FAR 33.104 to

clarify that the $150 hourly cap on

attorneys’ fees applies only to those

protests filed on or after October 1,

1995. Protests filed with the General

Accounting Office prior to October 1,

1995, are not subject to the hourly cap

on attorneys’ fees, in accordance with

Sections 10001 and 10002 of the Federal

Acquisition Streamlining Act of 1994

(Public Law 103–355).

Item XII—Contractors’ Purchasing

Systems Reviews (FAR Case 94–605)

This final rule amends FAR 44.302 to

(1) add a requirement for the cognizant

contract administration agency to

determine the need for a contractor

purchasing system review (CPSR) based

on, but not limited to, the past

performance of the contractor and

volume, complexity, and dollar value of

the contractor’s subcontracting activity;

and (2) delete the requirement for a

CPSR to be performed initially and at

least every 3 years thereafter, for

contractors exceeding a certain sales

level. Also, FAR sections 44.303

through 44.307 are amended to conform

to amendments at 44.302.

Item XIII—Performance-Based

Payments (FAR Case 96–005)

This final rule amends FAR 52.232–

32, Performance-Based Payments, by

adding paragraphs (f)(6) and (7) to

address title to residual material and

liability for Government-furnished

property, for consistency with

paragraphs (d)(6) and (7) of FAR

52.232–16, Progress Payments.

Item XIV—Technical Corrections

Corrections have been made to

Federal Acquisition Circular 90–44,

which appeared in the Federal Register

at 61 FR 69286, December 31, 1996, to

correct clause dates to correspond with

the effective dates of the rules, and

Federal Acquisition Circular 90–45,

published in the Federal Register at 62

FR 224, January 2, 1997, to replace a

reference inadvertently omitted in the

original document.

Dated: March 7, 1997.

Edward C. Loeb,

Director, Federal Acquisition Policy Division.

[FR Doc. 97–6309 Filed 3–14–97; 8:45 am]

BILLING CODE 6820–EP–P

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 3 and 52

[FAC 90–46; FAR Case 96–300; Item I]

RIN 9000–AH06

Federal Acquisition Regulation;

Gratuities

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule adopted as final.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on a final rule amending the

Federal Acquisition Regulation (FAR) to

exempt solicitations and contracts

which do not exceed the simplified

acquisition threshold from the

prescribed use of the clause relating to

gratuities.This regulatory action was not

subject to Office of Management and

Budget review under Executive Order

12866, dated September 30, 1993. This

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

DATES: Effective May 16, 1997.

FOR FURTHER INFORMATION CONTACT: Mr.

Paul Linfield at (202) 501–1757 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405 (202) 501–4755.

Please cite FAC 90–46, FAR case 96–

300.

SUPPLEMENTARY INFORMATION:

A. Background

The interim rule published as Item III

of Federal Acquisition Circular 90–40 in

the Federal Register at 61 FR 39199,

July 26, 1996, is adopted as final

without change. The interim rule

implemented Section 801 of the

National Defense Authorization Act for

Fiscal Year 1996 (Public Law 104–106).

Section 801 amended 10 U.S.C. 2207,

generally referred to as the Gratuities

Act, to exempt contracts which do not

exceed the simplified acquisition

threshold from application of the

Gratuities Act. Therefore, the clause at

52.203–3, Gratuities, is prescribed for

inclusion in only those contracts which

exceed the simplified acquisition

threshold.

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 Federal contractors

have been subject to action under the

Gratuities clause.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,

contractors, or members of the public