[Federal Register Volume 62, Number 51 (Monday, March 17, 1997)]
[Rules and Regulations]
[Pages 12690-12691]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 97-6309]



[[Page 12689]]

_______________________________________________________________________

Part II

Department of Defense

General Services Administration

National Aeronautics and Space Administration
_______________________________________________________________________



48 CFR Chapter I, Part 3, et al.



Federal Acquisition Circular 90-46, Introduction and Federal 
Acquisition Regulations; Final Rules

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

[[Page 12690]]



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 <a href="http://
www.gsa.gov/far/SECG">http://
www.gsa.gov/far/SECG</a>.

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         91-104          DeStefano.      
                      Contracting.                                      
III................  Office of Federal  94-008          O'Neill.        
                      Procurement                                       
                      Policy Letter 93-                                 
                      1, Management                                     
                      Oversight of                                      
                      Service                                           
                      Contracting.                                      
IV.................  Performance        93-603          DeStefano.      
                      Incentives for                                    
                      Fixed-Price                                       
                      Contracts.                                        
V..................  Federal            92-054B         Linfield.       
                      Compliance with                                   
                      Right-to-Know                                     
                      Laws and                                          
                      Pollution                                         
                      Prevention                                        
                      Requirements                                      
                      (Interim).                                        
VI.................  Buy American Act-- 91-119          Linfield.       
                      Construction                                      
                      (Grimberg                                         
                      Decision).                                        
VII................  Collection of      95-306          Klein.          
                      Historically                                      
                      Black Colleges                                    
                      and Universities/                                 
                      Minority                                          
                      Institutions                                      
                      Award Data.                                       
VIII...............  Allowability of    95-021          DeStefano.      
                      Foreign Selling                                   
                      Costs.                                            
IX.................  Independent        95-024          Olson.          
                      Research and                                      
                      Development/Bid                                   
                      and Proposal                                      
                      Costs in                                          
                      Cooperative                                       
                      Agreements.                                       
X..................  Prompt Payment...  91-091          Olson.          
XI.................  Attorneys' Fees    96-016          O'Neill.        
                      in GAO Protests.                                  
XII................  Contractors'       94-605          Klein.          
                      Purchasing                                        
                      Systems Reviews.                                  
XIII...............  Performance-Based  96-005          Olson.          
                      Payments.                                         
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 post-award. 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.

[[Page 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]
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