2724 Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 

52.225–9 Buy American Act—Construction 

Materials. 

* * * * * 

BUY AMERICAN ACT— 

CONSTRUCTION MATERIALS (FEB 

2009) 

(a) Definitions. * * * 

Commercially available off-the-shelf 

(COTS) item— (1) Means any item of supply 

(including construction material) that is— 

(i) A commercial item (as defined in 

paragraph (1) of the definition at FAR 2.101); 

(ii) Sold in substantial quantities in the 

commercial marketplace; and 

(iii) Offered to the Government, under a 

contract or subcontract at any tier, without 

modification, in the same form in which it 

is sold in the commercial marketplace; and 

(2) Does not include bulk cargo, as defined 

in section 3 of the Shipping Act of 1984 (46 

U.S.C. App. 1702), such as agricultural 

products and petroleum products. 

* * * * * 

Domestic construction material means— 

(1) An unmanufactured construction 

material mined or produced in the United 

States; 

(2) A construction material manufactured 

in the United States, if— 

(i) The cost of its components mined, 

produced, or manufactured in the United 

States exceeds 50 percent of the cost of all 

its components. Components of foreign origin 

of the same class or kind for which 

nonavailability determinations have been 

made are treated as domestic; or 

(ii) The construction material is a COTS 

item. 

* * * * * 

(b) Domestic preference. (1) This clause 

implements the Buy American Act (41 U.S.C. 

10a–10d) by providing a preference for 

domestic construction material. In 

accordance with 41 U.S.C. 431, the 

component test of the Buy American Act is 

waived for construction material that is a 

COTS item (See FAR 12.505(a)(2)). The 

Contractor shall use only domestic 

construction material in performing this 

contract, except as provided in paragraphs 

(b)(2) and (b)(3) of this clause. 

* * * * * 

(End of clause) 

■ 23. Amend section 52.225–10 by 

revising the date of the provision and 

paragraph (a) to read as follows: 

52.225–10 Notice of Buy American Act 

Requirement—Construction Materials. 

* * * * * 

NOTICE OF BUY AMERICAN ACT 

REQUIREMENT—CONSTRUCTION 

MATERIALS (FEB 2009) 

(a) Definitions. ‘‘Commercially available 

off-the-shelf (COTS) item,’’ ‘‘construction 

material,’’ ‘‘domestic construction material,’’ 

and ‘‘foreign construction material,’’ as used 

in this provision, are defined in the clause of 

this solicitation entitled ‘‘Buy American 

Act—Construction Materials’’ (Federal 

Acquisition Regulation (FAR) clause 52.225– 

9). 

* * * * * 

(End of provision) 

■ 24. Amend section 52.225–11 by— 

■ a. Revising the date of the clause; 

■ b. In paragraph (a), by adding, in 

alphabetical order, the definition 

‘‘Commercially available off-the-shelf 

(COTS) item’’ and revising the 

definition ‘‘Domestic construction 

material’’; 

■ c. Revising paragraph (b)(1); and 

■ d. Revising the date of Alternate I and 

in paragraph (b)(1) adding a new second 

sentence to read as follows: 

52.225–11 Buy American Act— 

Construction Materials Under Trade 

Agreements. 

* * * * * 

BUY AMERICAN ACT— 

CONSTRUCTION MATERIALS UNDER 

TRADE AGREEMENTS (FEB 2009) 

(a) Definitions. * * * 

* * * * * 

Commercially available off-the-shelf 

(COTS) item— (1) Means any item of supply 

(including construction material) that is— 

(i) A commercial item (as defined in 

paragraph (1) of the definition at FAR 2.101); 

(ii) Sold in substantial quantities in the 

commercial marketplace; and 

(iii) Offered to the Government, under a 

contract or subcontract at any tier, without 

modification, in the same form in which it 

is sold in the commercial marketplace; and 

(2) Does not include bulk cargo, as defined 

in section 3 of the Shipping Act of 1984 (46 

U.S.C. App. 1702), such as agricultural 

products and petroleum products. 

* * * * * 

Domestic construction material means— 

(1) An unmanufactured construction 

material mined or produced in the United 

States; 

(2) A construction material manufactured 

in the United States, if— 

(i) The cost of its components mined, 

produced, or manufactured in the United 

States exceeds 50 percent of the cost of all 

its components. Components of foreign origin 

of the same class or kind for which 

nonavailability determinations have been 

made are treated as domestic; or 

(ii) The construction material is a COTS 

item. 

* * * * * 

(b) Construction materials. (1) This clause 

implements the Buy American Act (41 U.S.C. 

10a–10d) by providing a preference for 

domestic construction material. In 

accordance with 41 U.S.C. 431, the 

component test of the Buy American Act is 

waived for construction material that is a 

COTS item (See FAR 12.505(a)(2)). In 

addition, the Contracting Officer has 

determined that the WTO GPA and Free 

Trade Agreements (FTAs) apply to this 

acquisition. Therefore, the Buy American Act 

restrictions are waived for designated county 

construction materials. 

* * * * * 

Alternate I (FEB 2009). * * * 

* * * * * 

(b) Construction materials. (1) * * * In 

accordance with 41 U.S.C. 431, the 

component test of the Buy American 

Act is waived for construction material 

that is a COTS item (See FAR 

12.505(a)(2)). * * * 

* * * * * 

■ 25. Amend section 52.225–12 by 

revising the date of the provision and 

revising paragraph (a) to read as follows: 

52.225–12 Notice of Buy American Act 

Requirement—Construction Materials 

Under Trade Agreements. 

* * * * * 

NOTICE OF BUY AMERICAN ACT 

REQUIREMENT—CONSTRUCTION 

MATERIALS UNDER TRADE 

AGREEMENTS (FEB 2009) 

(a) Definitions. ‘‘Commercially available 

off-the-shelf (COTS) item,’’ ‘‘construction 

material,’’ ‘‘designated country construction 

material,’’ ‘‘domestic construction material,’’ 

and ‘‘foreign construction material,’’ as used 

in this provision, are defined in the clause of 

this solicitation entitled ‘‘Buy American 

Act—Construction Materials Under Trade 

Agreements’’ (Federal Acquisition Regulation 

(FAR) clause 52.225–11). 

* * * * * 

(End of provision) 

[FR Doc. E9–551 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 15, 17, 22, and 52 

[FAC 2005–30; FAR Case 2001–004; Item 

III; Docket 2007–0001, Sequence 6] 

RIN 9000–AK82 

Federal Acquisition Regulation; FAR 

Case 2001–004, Exemption of Certain 

Service Contracts from the Service 

Contract Act (SCA) 

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, with 

changes, the interim rule which 

amended the Federal Acquisition 

Regulation (FAR) to revise the current 

SCA exemption and to add an SCA 

exemption for contracts for certain 


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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2725 

additional services that meet specific 

criteria. 

DATES: Effective Date: February 17, 

2009. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–30, FAR case 

2001–004. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Wage and Hour Division of the 

U.S. Department of Labor’s (DoL) 

Employment Standards Administration, 

issued a final rule, published in the 

Federal Register at 66 FR 5327, January 

18, 2001, amending the regulations at 29 

CFR part 4 to exempt certain contracts 

for services meeting specific criteria 

from coverage under the SCA. The 

Councils opened FAR Case 2001–004 to 

implement the DoL rule. 

The Councils published an interim 

rule in the Federal Register at 72 FR 

63076 on November 7, 2007. The public 

comment period closed on January 7, 

2008. The Councils received comments 

from 4 commenters (one commenter 

submitted 4 separate responses). 

1. Non-statutory certifications. 

The respondent is concerned about 

additional non-statutory certifications. 

Response: These certifications are 

imposed by the Secretary of Labor as a 

condition for the Secretary granting the 

exemptions. The certifications are found 

in DoL regulations at 29 CFR 

4.123(e)(1)(ii)(D) and (e)(2)(ii)(G). The 

FAR rule implements the DoL 

requirements for certification by the 

prime contractor with respect to 

compliance with the DoL conditions for 

exemption from the SCA. The 

certification at FAR 52.222–48 was 

already required. In accordance with 

FAR 1.107, the Administrator of the 

Office of Federal Procurement Policy 

approved this non-statutory certification 

and the new non-statutory certification 

at FAR 52.222–52 because these 

certifications provide the basis for 

determining applicability of the SCA to 

the acquisition. When certain 

conditions are met, the certifications are 

necessary in order to exempt contracts 

for maintenance, calibration, or repair of 

certain equipment (FAR 52.222–48) and 

contracts for certain services (FAR 

52.222–52) from the application of the 

SCA. The certifications are necessary to 

encourage broader participation in 

Government procurement by companies 

doing business in the commercial 

sector, and reinforce the Government’s 

commitment to reduce Government— 

unique terms and conditions, without 

compromising the purpose of the SCA 

to protect prevailing labor standards. 

Without the certifications from the 

contractor, the DoL conditions for 

exemption would not be met, and all 

contractors would be required to 

comply with the SCA and, if the 

contract exceeds $2,500, the appropriate 

DoL wage determination. 

2. Existing conditions for exemption 

for contracts for maintenance, 

calibration or repair of certain 

equipment (22.1003–4(c)(2)). Paragraph 

22.1003–4(c)(2)(i) sets forth the 

condition that ‘‘the items of equipment 

to be serviced under the contract are 

used regularly for other than 

Government purposes and are sold or 

traded by the contractor in substantial 

quantities to the general public in the 

course of normal business operations.’’ 

One respondent questions if this 

means that the condition can be met 

only if the contractor that sold or traded 

the equipment is also the contractor 

performing the ‘‘maintenance, 

calibration, or repair services?’’ 

Response: The respondent’s 

interpretation is correct. This is existing 

FAR text that comes from the DoL rule 

at 29 CFR 4.123(e)(1)(ii)(A). 

3. DoL determination after award 

(22.1003–4(c)(4)(ii)). 

One respondent suggests that the 

wording at FAR 22.1003–4(c)(4)(ii) 

should be the same as the wording at 

FAR 22.1003–4(d)(4)(ii). 

Response: Since the FAR at 22.1003– 

4(c)(4)(ii) and 22.1003–4(d)(4)(ii) is 

based on the DoL rule at 29 CFR 

4.123(e)(1)(iv) and 29 CFR 

4.123(e)(2)(iii), and there is no 

discrepancy between these two 

paragraphs in the DoL rule, then they 

should read the same in the FAR rule. 

The suggested changes have been made 

to make the FAR paragraphs read the 

same, except that the run-on sentence 

has been corrected in 22.1003– 

4(d)(4)(ii), rather than repeating it in 

22.1003–4(c)(4)(ii). 

4. New exemptions for contracts for 

certain services (22.1003–4(d)(1)). 

Paragraph 22.1003–4(d)(1)(i) provides 

exemption for ‘‘Automobile or other 

vehicle (e.g., aircraft) maintenance 

services (other than contracts or 

subcontracts to operate a Government 

motor pool or similar facility).’’ 

• One respondent wants it indicated 

with more certainty, that aircraft 

maintenance services are covered. 

• One respondent requests a 

definition of ‘‘maintenance services.’’ 

• One respondent wants to know what 

does ‘‘similar facility’’ mean? Is a 

contractor owned and operated facility, 

such as a depot or hangar outfitted for 

commercial aircraft maintenance and 

repair work a similar facility? The 

respondent suggests using the phrase 

‘‘Government facility performing 

automobile maintenance or repair 

services’’ instead of ‘‘Government motor 

pool or similar facility.’’ 

Response: 

• Specifically listing aircraft 

maintenance services as an example 

provides complete certainty. This 

specifically reflects the DoL regulations 

at 29 CFR 4.123(e)(2)(i). 

• ‘‘Maintenance services’’ is a widely 

used commercial term that should not 

require further definition. Since the 

FAR is implementing the DoL rule, the 

Councils decided not provide a 

definition that might inadvertently 

change the intent of the DoL rule. 

• The FAR is implementing the DoL 

rule. The suggested rewrite would 

change the meaning of the DoL rule. 

5. Inconsistencies between wording of 

new exemptions and existing 

exemptions (22.1003–4(c)(1) and (d)(1)). 

For example, 22.1003–4(d)(1)(i) refers 

only to ‘‘Automobile or other vehicle 

(e.g., aircraft) maintenance services’’ as 

qualifying for the exemption, whereas 

22.1003–4(d)(1)(iv) refers to 

‘‘maintenance, calibration, repair, and/ 

or installation ... services for all types of 

equipment where the services are 

obtained.’’ 

One respondent recommends making 

the language consistent by using the 

terms ‘‘maintenance, calibration, repair, 

and/or installation services.’’ 

Response: The Councils cannot 

change in the FAR the exemptions 

provided by DoL in its rule (29 CFR 

4.123(e)(2)(i)(A) and (D)). 

6. Conditions for new exemptions 

(22.1003–4(d)(2)). 

• One respondent notes the condition 

in paragraph 22.1003–4(d)(2)(i) that— 

‘‘(A) The contract will be awarded on a 

sole-source basis; or 

(B) Except for services identified in 

paragraph (d)(1)(iv) of this subsection, the 

contractor will be selected for award based 

on other factors in addition to price or cost, 

with the combination of other factors at least 

as important as price or cost in selecting the 

contractor.’’ 

• The respondent requests 

transparency in this area by announcing 

the relative weighting of all of the 

source selection factors in the Federal 

Business Opportunities announcement. 

Response: FAR 15.101–1 states that 

when using a tradeoff process, the 

following apply: 

(1) All evaluation factors and significant 

subfactors that will affect contract award and 

their relative importance shall be clearly 

stated in the solicitation; and 

(2) The solicitation shall state whether all 

evaluation factors other than cost or price, 


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when combined, are significantly more 

important than, approximately equal to, or 

significantly less important than cost or 

price. 

It is outside the scope of this case to 

revise this policy. The information 

provided is sufficient to know whether 

the combination of other factors at least 

as important as price or cost in selecting 

the contractor. 

• One respondent notes the condition 

in paragraph 22.1003–4(d)(2)(iv) that 

‘‘Each service employee who will 

perform the services under the contract 

will spend only a small portion of his 

or her time (a monthly average of less 

than 20 percent of the available hours 

on an annualized basis, or less than 20 

percent of available hours during the 

contract period if the contract period is 

less than a month) servicing the 

Government contract.’’ This 

requirement to have the capability of 

tracking the percentage of time each 

employee spends on Government work 

is a problem for contractors that meet 

the other criteria. 

Response: This condition is imposed 

by the DoL rule (29 CFR 

4.123(e)(2)(ii)(D)). The Councils do not 

have the authority to change the 

conditions imposed by the DoL. 

• One respondent notes the additional 

conditions that apply to the new 

exemptions and recommends their 

deletion to avoid unnecessary confusion 

and complexity for contractors and 

contracting officers. 

Response: See prior response. 

• One respondent considers paragraph 

22.1003–4(d)(2)(vi) confusing, since it is 

unclear when an ‘‘advance’’ contracting 

officer determination of offeror 

compliance would be made and 

whether the determination will be a 

formal determination and finding per 

FAR 1.701 or something less. This 

respondent suggests the following 

replacement language: 

‘‘The Contracting Officer determines prior 

to award, but after receipt of offers based on 

the contract requirements, that the conditions 

for a certified exemption in paragraph 

(d)(2)(ii) through (v) can be met by an 

offeror.’’ 

Response: This condition is from the 

DoL rule (29 CFR 4.123(e)(2)(ii)(F)). In 

the DoL rule this clearly means before 

the solicitation is issued, because the 

DoL rule continues on ‘‘If upon receipt 

of offers, the contracting officer finds 

that he or she did not correctly 

determine ....’’ This is implemented 

through the positive statement at 

22.1003–4(d)(3)(ii)(B) in combination 

with the results at (d)(3)(iii) if the 

conditions are not met. The Councils 

have added ‘‘before issuing the 

solicitation’’ at (vi) to clarify the FAR 

rule. 

• Paragraph (vii) requires the 

following: 

‘‘(A) The apparent successful offeror 

certifies that the conditions in paragraphs 

(d)(2)(ii) through (v) will be met; and 

(B) For other than sole source awards, the 

contracting officer determines that the same 

certification is obtained from substantially all 

other offerors that are— 

(1) In the competitive range, if discussions 

are to be conducted (see FAR 15.306(c)); or 

(2) Considered responsive, if award is to be 

made without discussions (see FAR 

15.306(a)).’’ 

• One respondent requests 

clarification of the term ‘‘substantially 

all.’’ One respondent is concerned about 

the meaning of ‘‘substantially all’’ other 

offerors. She runs through several 

scenarios, considering if there are only 

2 or 3 offerors, what would 

‘‘substantially all’’ mean. She 

recommends that only the apparently 

successful offeror should have to certify. 

Response: This term was left 

undefined to provide maximum 

flexibility to contracting officers. The 

Councils acknowledge the respondent’s 

concerns, but the FAR rule must follow 

the conditions set by DoL for use of 

these new exemptions. 

• One respondent questions how far 

down the supply chain the SCA 

compliance test and certifications must 

go. 

Response: The flowdown requirement 

in the clauses at 52.222–52 and 52.222– 

54 each require that the contractor must 

flow down the clause to any subcontract 

for services for which the exemption is 

being claimed. 

• The same respondent also objects to 

use of the term ‘‘responsive’’ at 

subparagraph (vii)(B)(2) (also appears at 

subparagraph (d)(3)(ii)(B)(2)). The 

respondent states that this term is a 

legacy term of art used in the Sealed 

Bidding process to describe an offeror’s 

statement of affirmative compliance 

with (or lack of exception to) all the 

terms and conditions of a formally 

advertised procurement. The 

respondent suggest the following: 

‘‘(2) Considered compliant with the 

Government’s requirements (see FAR 

15.306(a)).’’ 

Response: The term ‘‘responsive’’ is 

not just a legacy term from Part 14, but 

is used in many other FAR parts (1, 7, 

8, 9, 19, 22, 37, and 50) to describe an 

offer that meets the Government 

requirements. Although the term 

‘‘compliant’’ is used in many places in 

the FAR, the Councils did not find any 

example in the FAR of an offer being 

described as ‘‘compliant.’’ 

7. Contract award or resolicitations 

(new exemptions) (22.1003–4(d)(3)). 

Paragraph (ii)(C) states a condition for 

award without the otherwise applicable 

SCA clauses is that ‘‘The contracting 

officer has no reason to doubt the 

certification.’’ 

• One respondent is concerned that 

there is a lack of definition or standard 

for ‘‘no reason to doubt’’ and that it does 

not appear to be in the best interests of 

the acquisition community to allow a 

decision to cancel a solicitation to hinge 

on the concept of doubt. 

Response: The FAR rule implements 

the DoL rule. The DoL rule requires that 

‘‘If the contracting officer or prime 

contractor has reason to doubt the 

validity of the certification, SCA 

stipulations shall be included in the 

prime contract or subcontract.’’ (29 CFR 

4.123(e)(2)(ii)(G)) 

• One respondent is concerned that 

this resolicitation process could, in 

some cases, unduly increase the 

workload of the contracting officer. 

Response: The FAR rule implements 

the DoL rule and follows the conditions 

set by DoL for use of these new 

exemptions. 

8. DoL determination (new 

exemptions) (22.1003–4(d)(4)). One 

respondent states that this paragraph 

provides for a post-award determination 

of some type by the DoL, not the 

contracting agency, at any time during 

contract performance. The respondent 

suggests that exemption compliance 

over time will be challenging, and that 

the interim rule should provide a ‘‘grace 

period’’ in which the prime or the 

subcontractor could remedy any 

compliance shortfalls. 

Response: The DoL regulations 

require that when the DoL discovers and 

determines, whether before or 

subsequent to a contract award, that a 

contracting agency made an erroneous 

determination that the SCA did not 

apply to a particular procurement and/ 

or failed to include an appropriate wage 

determination in a covered contract, the 

contracting agency, within 30 days of 

notification by DoL, shall include in the 

contract the stipulations contained in 29 

CFR 4.6 and any applicable wage 

determination issued by the DoL 

Administrator or his authorized 

representative through the exercise of 

any and all authority that may be 

needed including, where necessary, its 

authority to negotiate or amend, its 

authority to pay any necessary 

additional costs, and its authority under 

any contract provision authorizing 

changes, cancellation, and termination. 

With respect to any contract subject to 

section 10 of the Act, the DoL 

Administrator may require retroactive 

application of such wage determination 

(29 CFR 4.5(c)(2)). 

The FAR rule implements the DoL 

requirements. It is up to DoL whether it 


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would allow time for correction of a 

compliance shortfall. The DoL 

regulations do not contemplate such a 

process. 

9. Exceptions (new exemptions) (FAR 

22.1003–4(d)(5)). 

Paragraph (5)(iii) provides that the 

new exemptions do not apply to 

solicitations and contracts that are 

subject to section 4(c) of the SCA. 

One respondent interprets this to 

mean that any contract that has now or 

ever contained SCA clauses can never 

be exempt in future contracts from the 

SCA. 

Response: Section 4(c) of the SCA 

reads as follows: 

(c) Predecessor contracts; employees’ 

wages and fringe benefits No contractor or 

subcontractor under a contract, which 

succeeds a contract subject to this chapter 

and under which substantially the same 

services are furnished, shall pay any service 

employee under such contract less than the 

wages and fringe benefits, including accrued 

wages and fringe benefits, and any 

prospective increases in wages and fringe 

benefits provided for in a collectivebargaining agreement as a result of arm’slength negotiations, to which such service 

employees would have been entitled if they 

were employed under the predecessor 

contract: Provided, That in any of the 

foregoing circumstances such obligations 

shall not apply if the Secretary finds after a 

hearing in accordance with regulations 

adopted by the Secretary that such wages and 

fringe benefits are substantially at variance 

with those which prevail for services of a 

character similar in the locality. 

Section 4(c) is different from the 

regular wage determination and this 

provision applies to a situation where 

collective bargaining agreement union 

agreements are involved. Many SCA 

covered contracts involve annual, 

recurring procurements of the same 

services. When a collective bargaining 

agreement governs the wage rates and 

fringe benefits of service workers 

employed to perform work called for by 

an incumbent SCA covered contract, the 

wage determination to be issued for the 

successor contract must reflect the wage 

and fringe benefit provisions of the 

predecessor, contractor’s collective 

bargaining agreement, including any 

accrued or prospective increases 

contained therein. 

The successor contractor obligation to 

comply with the provisions of the 

collective bargaining agreement under 

Section 4(c) of the SCA extend only for 

the immediate successor contract period 

of performance. Thus, if the predecessor 

contractor was signatory to a collective 

bargaining agreement, the successor 

contractor would be required to comply 

with those provisions but would not be 

required to enter into a collective 

bargaining agreement. At the end of that 

first period of performance, the 

successor contractor would be subject to 

a general wage determination and 

Section 4(c) would no longer be in 

effect. 

10. Incorrect references (22.1003–5 

and 22.1003–6). 

Several respondents pointed out that 

the references at 22.1003–5 and 

22.1003–6 to ‘‘22.1003(c)(1) and 

(d)(1)(iv)’’ should both read ‘‘22.1003– 

4(c)(1) and (d)(1)(iv).’’ 

Response: The Councils concur. The 

draft final rule has been amended. 

11. Prescriptions for use of provisions 

and clauses (22.1006). 

One respondent had several 

suggestions to clarify the prescriptions 

for the use of provisions and clauses. 

1. Certification provision 52.222–48 

will not be in solicitation if ORCA is 

used, so use of SCA clause in contract 

can not be tied to presence of 

certification provision in solicitation. 

The same concern applies to 52.222–52, 

if it is incorporated into ORCA. 

The respondent suggests several 

solutions for drafting the prescriptions. 

Response: The Councils recognize the 

problem, and have adopted a different 

solution. The FAR drafting conventions 

prohibit prescribing a clause in more 

than one place, and normally there is a 

separate prescription for each provision 

or clause. 

There is a widespread problem, 

extending beyond this single case, that 

there is no indication in FAR 52.204–8 

as to which representations or 

certifications are applicable to the 

particular solicitation. This is unlike 

FAR 52.212–3, which either gives the 

criteria for applicability, or requires that 

the contracting officer indicate the 

applicability of some of the 

representations and certifications (e.g., 

FAR 52.212–3(k)). Because it is essential 

that the contracting officer have the 

ability to indicate the applicability of 

FAR 52.222–48 or 52.222–52 to a 

solicitation, the Councils have agreed to 

an overall fix to the FAR clause at 

52.204–8, indicating for each 

representation or certification either its 

general applicability, if that is sufficient, 

or in more complex cases, requiring the 

contracting officer to specifically 

indicate if the representation or 

certification is applicable. 

Once this is accomplished, the 

inclusion of the clauses at FAR 52.222– 

51 and 52.222–53 can be tied to either 

the inclusion of 52.222–48 or 52.222–52 

in the solicitation, or the indication of 

the applicability of the comparable 

certification in 52.204–8(c)(2) or 

52.212–3(k). 

2. Paragraph 22.1006(a)(2) does not 

directly contradict FAR 22.1003–4(c)(3) 

or (d)(3), but it is not totally consonant. 

One states that the contracting officer 

includes the SCA clause if the 

contracting officer determines it is 

appropriate to do so. The other states 

that the SCA clause is excluded, if the 

contracting officer determines that is it 

appropriate to do so. 

Response: The Councils have revised 

FAR 22.1006(a)(2) to put it in terms of 

excluding the SCA clause when the 

contracting officer determines that the 

SCA does not apply, consistent with 

DoL regulations and other parts of the 

rule. 

3. Reference at FAR 22.1003– 

4(d)(3)(iii) should be 22.1006(e)(3) not 

(e)(4). 

Response: The Councils have made 

the correction. 

4. Language at FAR 22.1006(e)(1) 

prescribing the use of 52.222–48 is 

unclear and at (e)(3), prescribing the use 

of 52.222–52 is unclear. One respondent 

interprets it as potentially applying to 

all contracts that contain the SCA 

clause, not just the targeted services. 

Response: The phrase ‘‘but the 

contract may be exempt from the 

Service Contract Act in accordance with 

22.1003–4(c) ‘or (d)’’’ was intended to 

target the specific services. If this is not 

sufficiently clear, the Councils have 

made the following revision. The use of 

‘‘and’’ instead of ‘‘but’’ makes it clear 

that both conditions must be met.’’ 

‘‘(e)(1) The contracting officer shall insert 

the provision at 52.222–48, Exemption from 

Application of the Service Contract Act to 

Contracts for Maintenance, Calibration, or 

Repair of Certain Equipment—Certification, 

in solicitations that include the clause at 

52.222–41, Service Contract Act of 1965 and 

the contract may be exempt from the Service 

Contract Act in accordance with 22.1003– 

4(c).’’ 

* * * * * 

(3) The contracting officer shall insert the 

provision at 52.222–52, Exemption from 

Application of the Service Contract Act to 

Contracts for Certain Services—Certification, 

in solicitations that include the clause at 

52.222–41, Service Contract Act of 1965 and 

the contract may be exempt from the Service 

Contract Act in accordance with 22.1003– 

4(d).’’ 

12. Provisions and clauses: 

a. FAR 52.212–3, 52.222–48, 52.222– 

51, and 52.222–53. ‘‘Or subcontractor in 

the case of an exempt subcontract.’’ 

One respondent requests that the 

language that is included 

parenthetically in paragraph (a)(1) of the 

provisions at FAR 52.222–52, also be 

included in the provisions at 52.212– 

3(k)(1)(i) and 52.222–48(a)(1) as well as 

the clauses at 52.222–51(a) and 52.222– 

53(a). 

Response: The Councils concur with 

inclusion of the phrase in the 


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provisions, because it is possible that a 

subcontractor may be exempt, and the 

term ‘‘offeror’’ does not include 

‘‘subcontractor.’’ 

However, the Councils do not agree 

with inclusion of the parenthetical 

phrase in the clauses, because FAR 

22.1001 defines ‘‘contractor’’ to include 

a subcontractor at any tier whose 

subcontract is subject to the provisions 

of the Act. 

b. FAR 52.212–5, correction of 

paragraph reference. 

One respondent points out the 

oversight to revise the paragraph 

reference in paragraph (e)(1) of the FAR 

clause 52.212–5. 

Response: The Councils have made 

the correction. 

c. FAR 52.222–53, order of 

paragraphs. 

One respondent recommends reversal 

of paragraphs FAR 52.222–53(e)(1) and 

(e)(2) in order to put the more likely 

situation first—i.e., award on the basis 

of other factors in addition to cost or 

price and that cost or price is of equal 

or lesser importance than the other 

factors. Further, the same respondent 

states that there is one particular type of 

service that allows award only on a sole 

source basis (FAR 22.1003–4(d)(1)(iv)- 

Maintenance, calibration, repair, and/or 

installation (where the installation is 

not subject to the Davis-Bacon Act, as 

provided in 29 CFR 4.116(c)(2)) services 

for all types of equipment where the 

services are obtained from the 

manufacturer or supplier of the 

equipment under a contract awarded on 

a sole source basis. Therefore, the 

respondent recommends that FAR 

paragraph 52.222–53(e)(2) address only 

this type of services. 

Response: The Councils concur with 

the reversal of the paragraphs. However, 

the Councils do not agree that the new 

paragraph (e)(2) should address only the 

service at FAR 22.1003–4(d)(1)(iv). The 

DoL criteria allow any of the 

subcontract services to be purchased on 

a sole source basis (29 CFR 

4.123((e)(2)(ii)(B)), not just the 

maintenance, etc. services that must be 

purchased sole source. Therefore the 

Councils have revised the subject 

paragraphs as follows: 

‘‘(e)(1) Except for services identified in 

FAR 22.1003–4(d)(1)(iv), the subcontractor 

for exempt services shall be selected for 

award based on other factors in addition to 

price or cost with the combination of other 

factors at least as important as price or cost; 

or 

(2) A subcontract for exempt services shall 

be awarded on a sole source basis.’’ 

13. FAR Matrix. 

One respondent identified that the 

FAR matrix incorrectly referred to FAR 

52.222–48 as a clause and states that it 

will go in section I. Although the matrix 

correctly identifies 52.222–52 as a 

provision, it incorrectly states that it 

will go in Section I. The same 

commenter also objects that these 

provisions should not be incorporated 

by reference because it requires a fill-in. 

Response: Partially Concur. FAR 

52.222–48 and 52.222–52 are provisions 

and belong in Section K. The FAR 

Matrix will be revised. The Councils 

disagree that a provision requiring a fillin should not be incorporated by 

reference. See FAR 52.104(d). 

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 Regulatory Flexibility Act, 5 

U.S.C. 601, et seq., applies to this final 

rule. The Councils prepared a Final 

Regulatory Flexibility Analysis (FRFA) 

that is summarized as follows: 

This rule finalizes an interim rule with 

changes, to amend the Federal Acquisition 

Regulation to implement Department of 

Labor (DoL) regulation 29 CFR 4.123, 

Administrative limitations, variance, 

tolerances, and exemptions. Paragraph (e) of 

that regulations provides exemption for 

contracts for certain services that meet 

specific criteria. 

The objective of the DoL final rule was to 

be more commercial-like, encourage broader 

participation in Government procurement by 

companies doing business in the commercial 

sector, and reinforce our commitment to 

reduce Government-unique terms and 

conditions, without compromising the 

purpose of the SCA to protect prevailing 

labor standards. 

This final rule will have a positive 

economic impact on the small contractors 

and subcontractors that meet the exemption 

criteria to be exempt from the SCA for certain 

services, because it may provide additional 

opportunities for work on Federal projects; 

enable these contractors to compete in a more 

commercial-like environment, and alleviate 

the burden of complying with Governmentunique terms and conditions for these types 

of contracts. 

Pursuant to Section (4)(b) of the SCA, the 

Secretary of Labor may grant reasonable 

exemptions to the provisions of the SCA, but 

only in special circumstances where the 

exemption is necessary and proper in the 

public interest, and is in accord with the 

remedial purposes of the Act to protect 

prevailing labor standards. 

There were no comments in response to 

the initial regulatory flexibility analysis. 

This final rule will apply to all large and 

small entities that seek award of Federal 

service contracts in the service categories 

identified. The Councils relied on the DoL 

regulatory flexibility analysis (66 FR 5339), 

which determined that a majority of contracts 

affected by the proposed exemption would 

likely be performed by small businesses. 

FPDS does not provide an accurate estimate 

of the contracts potentially covered by the 

exemption, but DoL estimates that the total 

value of the exempt contracts could be 

relatively small, and that the SCA would no 

longer apply to only a relatively small 

number of contracts that currently contain 

SCA wage determination provisions. 

The rule imposes no reporting, 

recordkeeping, or other information 

collection requirements that require the 

approval of the Office of Management and 

Budget under 44 U.S.C. 3501, et seq. This 

rule implements the Department of Labor 

Rule (66 FR 5327), which stated in the 

preamble that the DoL rule contained no 

reporting or recordkeeping requirements 

subject to the Paperwork Reduction Act of 

1980 (Pub. L. 96–511). The DoL preamble 

stated further, that although offerors are 

required to certify that the criteria for 

exemption are met, the certifications can be 

submitted as part of the bid process and 

offerors are not required to maintain records 

to support the certification. 

There are no practical alternatives that will 

accomplish the objectives of this rule. 

However, the exemption is expected to have 

a positive impact on small entities, because 

it does not contain any new reporting or 

recordkeeping or other compliance 

requirements applicable to small business. 

Rather, the exemption would relieve small 

businesses and other contractors from the 

requirements of the SCA on certain contracts. 

Interested parties may obtain a copy 

of the FRFA from the FAR Secretariat. 

The FAR Secretariat has submitted a 

copy of the FRFA to the Chief Counsel 

for Advocacy of the Small Business 

Administration. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 104–13) does not apply because the 

final rule does not impose or remove 

information collection requirements that 

require the approval of the Office of 

Management and Budget under 44 

U.S.C. 3501, et seq. This final rule 

implements the DoL rule published in 

the Federal Register at 66 FR 5327, 

January 18, 2001, which stated in the 

preamble that the DoL rule contained no 

reporting or recordkeeping requirements 

subject to the Paperwork Reduction Act 

of 1980 (Pub. L. 96–511). The DoL 

preamble stated further, that although 

offerors are required to certify that the 

criteria for exemption are met, the 

certifications can be submitted as part of 

the bid process and offerors are not 

required to maintain records to support 

the certification. 

List of Subjects in 48 CFR Parts 4, 15, 

17, 22, and 52 

Government procurement. 


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Federal Register / Vol. 74, No. 10 / Thursday, January 15, 2009 / Rules and Regulations 2729 

Dated: December 24, 2008. 

Edward Loeb, 

Acting Director, Office of Acquisition Policy. 

Interim Rule Adopted as Final With 

Changes 

■ Accordingly, the interim rule 

amending 48 CFR parts 4, 15, 17, 22, 

and 52 which was published in the 

Federal Register at 72 FR 63076 on 

November 7, 2007, is adopted as a final 

rule with the following changes: 

■ 1. The authority citation for 48 CFR 

parts 4, 15, 22, and 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). 

PART 4—ADMINISTRATIVE MATTERS 

4.1201 [Amended] 

■ 2. Amend section 4.1201 in paragraph 

(c) by removing ‘‘52.204–8(c)’’ and 

adding ‘‘52.204–8(d)’’ in its place. 

■ 3. Amend section 4.1202 by— 

■ a. Revising the introductory text; 

■ b. Redesignating paragraphs (r) 

through (bb) as (s) through (cc) 

respectively; and 

■ c. Adding new paragraph (r). 

The revised and added text reads as 

follows: 

4.1202 Solicitation provision and contract 

clause. 

Except for commercial item 

solicitations issued under FAR Part 12, 

insert in solicitations the provision at 

52.204–8, Annual Representations and 

Certifications. The contracting officer 

shall check the applicable provisions at 

52.204–8(c)(2). When the clause at 

52.204–7, Central Contractor 

Registration, is included in the 

solicitation, do not include the 

following representations and 

certifications: 

* * * * * 

(r) 52.222–52, Exemption from 

Application of the Service Contract Act 

to Contracts for Certain Services— 

Certification. 

* * * * * 

PART 15—CONTRACTING BY 

NEGOTIATION 

15.102 [Amended] 

■ 4. Amend section 15.102 in paragraph 

(b) by removing ‘‘52.204–8(c)’’ and 

adding ‘‘52.204–8(d)’’ in its place. 

PART 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITION 

■ 5. Amend section 22.1003–4 by— 

■ a. Removing from paragraph (c)(3)(iii) 

‘‘22.1006(a)(2)’’ and adding 

‘‘22.1006(a)’’ in its place; 

■ b. Revising paragraph (c)(4)(ii); 

■ c. Revising paragraph (d)(2)(i) and 

revising the first sentence in paragraph 

(d)(2)(vi); 

■ d. Removing from paragraph (d)(3)(i) 

‘‘22.1006(a)(2)’’ and adding ‘‘22.1006’’ 

in its place, and revising paragraph 

(d)(3)(iii); and 

■ e. Revising paragraph (d)(4)(ii). 

■ The revised text reads as follows: 

22.1003–4 Administrative limitations, 

variations, tolerances, and exemptions. 

* * * * * 

(c) * * * 

(4) * * * 

(ii) If the Department of Labor 

determines that any conditions in 

paragraph (c)(2) of this subsection have 

not been met with respect to a 

subcontract, the exemption shall be 

deemed inapplicable. The contractor 

may be responsible for ensuring that the 

subcontractor complies with the Act, 

effective as of the date of the 

subcontract award. 

(d) * * * 

(2) * * * 

(i) (A) Except for services identified in 

paragraph (d)(1)(iv) of this subsection, 

the contractor will be selected for award 

based on other factors in addition to 

price or cost, with the combination of 

other factors at least as important as 

price or cost; or 

(B) The contract will be awarded on 

a sole source basis. 

* * * * * 

(vi) The contracting officer (or 

contractor with respect to a subcontract) 

determines in advance before issuing 

the solicitation, based on the nature of 

the contract requirements and 

knowledge of the practices of likely 

offerors, that all or nearly all offerors 

will meet the conditions in paragraph 

(d)(2)(ii) through (v) of this subsection. 

* * * 

* * * * * 

(3) * * * 

(iii) If the conditions in paragraph 

(d)(3)(ii) of this subsection are not met, 

then the contracting officer shall 

resolicit, amending the solicitation by 

removing the exemption provision from 

the solicitation as prescribed at 

22.1006(e)(3). The contract will include 

the applicable Service Contract Act 

clause(s) as prescribed at 22.1006 and, 

if the contract will exceed $2,500, the 

appropriate Department of Labor wage 

determination (see 22.1007). 

* * * * * 

(4) * * * 

(ii) If the Department of Labor 

determines that any conditions in 

paragraph (d)(2) of this subsection have 

not been met with respect to a 

subcontract, the exemption shall be 

deemed inapplicable. The contractor 

may be responsible for ensuring that the 

subcontractor complies with the Act, 

effective as of the date of the 

subcontract award. 

* * * * * 

22.1003–5 [Amended] 

■ 6. Amend section 22.1003–5 in 

paragraph (k) by removing 

‘‘22.1003(c)(1)’’ and adding ‘‘22.1003– 

4(c)(1)’’ in its place. 

22.1003–6 [Amended] 

■ 7. Amend section 22.1003–6 in 

paragraph (b)(2) by removing 

‘‘22.1003(c)(1)’’ and adding ‘‘22.1003– 

4(c)(1)’’ in its place. 

■ 8. Amend section 22.1006 by revising 

paragraphs (a) and (e) to read as follows: 

22.1006 Solicitation provisions and 

contract clauses. 

(a)(1) The contracting officer shall 

insert the clause at 52.222–41, Service 

Contract Act of 1965, in solicitations 

and contracts (except as provided in 

paragraph (a)(2) of this section) if the 

contract is subject to the Act and is— 

(i) Over $2,500; or 

(ii) For an indefinite dollar amount 

and the contracting officer does not 

know in advance that the contract 

amount will be $2,500 or less. 

(2) The contracting officer shall not 

insert the clause at 52.222–41 (or any of 

the associated Service Contract Act 

clauses as prescribed in this section for 

possible use when 52.222–41 applies) in 

the resultant contract if— 

(i) The solicitation includes the 

provision at— 

(A) 52.222–48, Exemption from 

Application of the Service Contract Act 

to Contracts for Maintenance, 

Calibration, or Repair of Certain 

Equipment—Certification; 

(B) 52.222–52, Exemption from 

Application of the Service Contract Act 

to Contracts for Certain Services— 

Certification; or 

(C) Either of the comparable 

certifications is checked as applicable in 

the provision at 52.204–8(c)(2)(v) or (vi) 

or 52.212–3(k); and 

(ii) The contracting officer has made 

the determination, in accordance with 

paragraphs (c)(3) or (d)(3) of subsection 

22.1003–4, that the Service Contract Act 

does not apply to the contract. (In such 

case, insert the clause at 52.222–51, 

Exemption from Application of the 

Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment—Requirements, or 

52.222–53, Exemption from Application 

of the Service Contract Act to Contracts 

for Certain Services—Requirements, in 


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the contract, in accordance with the 

prescription at paragraph (e)(2)(ii) or 

(e)(4)(ii) of this subsection). 

* * * * * 

(e)(1) The contracting officer shall 

insert the provision at 52.222–48, 

Exemption from Application of the 

Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment—Certification, in 

solicitations that— 

(i) Include the clause at 52.222–41, 

Service Contract Act of 1965; and 

(ii) The contract may be exempt from 

the Service Contract Act in accordance 

with 22.1003–4(c). 

(2) The contracting officer shall insert 

the clause at 52.222–51, Exemption 

from Application of the Service Contract 

Act to Contracts for Maintenance, 

Calibration, or Repair of Certain 

Equipment—Requirements— 

(i) In solicitations that include the 

provision at 52.222–48, or the 

comparable provision is checked as 

applicable in the clause at 52.204– 

8(c)(2)(v) or 52.212–3(k)(1); and 

(ii) In resulting contracts in which the 

contracting officer has determined, in 

accordance with 22.1003–4(c)(3), that 

the Service Contract Act does not apply. 

(3)(i) Except as provided in paragraph 

(e)(3)(ii) of this section, the contracting 

officer shall insert the provision at 

52.222–52, Exemption from Application 

of the Service Contract Act to Contracts 

for Certain Services—Certification, in 

solicitations that— 

(A) Include the clause at 52.222–41, 

Service Contract Act of 1965; and 

(B) The contract may be exempt from 

the Service Contract Act in accordance 

with 22.1003–4(d). 

(ii) When resoliciting in accordance 

with 22.1003–4(d)(3)(iii), amend the 

solicitation by removing the provision at 

52.222–52 from the solicitation. 

(4) The contracting officer shall insert 

the clause at 52.222–53, Exemption 

from Application of the Service Contract 

Act to Contracts for Certain Services— 

Requirements— 

(i) In solicitations that include the 

provision at 52.222–52, or the 

comparable provision is checked as 

applicable in 52.204–8(c)(2)(vi) or 

52.212–3(k)(2); and 

(ii) In resulting contracts in which the 

contracting officer has determined, in 

accordance with 22.1003–4(d)(3), that 

the Service Contract Act does not apply. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 9. Amend section 52.204–8 by— 

■ a. Revising the date of the provision; 

■ b. Removing from paragraphs (b)(1) 

and (b)(2) ‘‘paragraph (c)’’ wherever it 

occurs, and adding ‘‘paragraph (d)’’ 

(four times) in its place; and 

■ c. Redesignating paragraph (c) as 

paragraph (d), adding new paragraph 

(c), and revising the second sentence in 

newly designated paragraph (d). 

■ The revised and added text reads as 

follows: 

52.204–8 Annual Representations and 

Certifications. 

* * * * * 

ANNUAL REPRESENTATIONS AND 

CERTIFICATIONS (FEB 2009) 

* * * * * 

(c)(1) The following representations or 

certifications in ORCA are applicable to this 

solicitation as indicated: 

(i) 52.203–2, Certificate of Independent 

Price Determination. This provision applies 

to solicitations when a firm-fixed-price 

contract or fixed-price contract with 

economic price adjustment is contemplated, 

unless— 

(A) The acquisition is to be made under the 

simplified acquisition procedures in Part 13; 

(B) The solicitation is a request for 

technical proposals under two-step sealed 

bidding procedures; or 

(C) The solicitation is for utility services 

for which rates are set by law or regulation. 

(ii) 52.203–11, Certification and Disclosure 

Regarding Payments to Influence Certain 

Federal Transactions. This provision applies 

to solicitations expected to exceed $100,000. 

(iii) 52.204–3, Taxpayer Identification. 

This provision applies to solicitations that do 

not include the clause at 52.204–7, Central 

Contractor Registration. 

(iv) 52.204–5, Women-Owned Business 

(Other Than Small Business). This provision 

applies to solicitations that— 

(A) Are not set aside for small business 

concerns; 

(B) Exceed the simplified acquisition 

threshold; and 

(C) Are for contracts that will be performed 

in the United States or its outlying areas. 

(v) 52.209–5, Certification Regarding 

Responsibility Matters. This provision 

applies to solicitations where the contract 

value is expected to exceed the simplified 

acquisition threshold. 

(vi) 52.214–14, Place of Performance— 

Sealed Bidding. This provision applies to 

invitations for bids except those in which the 

place of performance is specified by the 

Government. 

(vii) 52.215–6, Place of Performance. This 

provision applies to solicitations unless the 

place of performance is specified by the 

Government. 

(viii) 52.219–1, Small Business Program 

Representations (Basic & Alternate I). This 

provision applies to solicitations when the 

contract will be performed in the United 

States or its outlying areas. 

(A) The basic provision applies when the 

solicitations are issued by other than DoD, 

NASA, and the Coast Guard. 

(B) The provision with its Alternate I 

applies to solicitations issued by DoD, 

NASA, or the Coast Guard. 

(ix) 52.219–2, Equal Low Bids. This 

provision applies to solicitations when 

contracting by sealed bidding and the 

contract will be performed in the United 

States or its outlying areas. 

(x) 52.222–22, Previous Contracts and 

Compliance Reports. This provision applies 

to solicitations that include the clause at 

52.222–26, Equal Opportunity. 

(xi) 52.222–25, Affirmative Action 

Compliance. This provision applies to 

solicitations, other than those for 

construction, when the solicitation includes 

the clause at 52.222–26, Equal Opportunity. 

(xii) 52.222–38, Compliance with Veterans’ 

Employment Reporting Requirements. This 

provision applies to solicitations when it is 

anticipated the contract award will exceed 

the simplified acquisition threshold and the 

contract is not for acquisition of commercial 

items. 

(xiii) 52.223–1, Biobased Product 

Certification. This provision applies to 

solicitations that require the delivery or 

specify the use of USDA-designated items; or 

include the clause at 52.223–2, Affirmative 

Procurement of Biobased Products Under 

Service and Construction Contracts. 

(xiv) 52.223–4, Recovered Material 

Certification. This provision applies to 

solicitations that are for, or specify the use 

of, EPA-designated items. 

(xv) 52.225–2, Buy American Act 

Certificate. This provision applies to 

solicitations containing the clause at 52.225– 

1. 

(xvi) 52.225–4, Buy American Act—Free 

Trade Agreements—Israeli Trade Act 

Certificate. (Basic, Alternate I, and Alternate 

II) This provision applies to solicitations 

containing the clause at 52.225–3. 

(A) If the acquisition value is less than 

$25,000, the basic provision applies. 

(B) If the acquisition value is $25,000 or 

more but is less than $50,000, the provision 

with its Alternate I applies. 

(C) If the acquisition value is $50,000 or 

more but is less than $67,826, the provision 

with its Alternate II applies. 

(xvii) 52.225–6, Trade Agreements 

Certificate. This provision applies to 

solicitations containing the clause at 52.225– 

5. 

(xviii) 52.225–20, Prohibition on 

Conducting Restricted Business Operations 

in Sudan—Certification. 

(xix) 52.226–2, Historically Black College 

or University and Minority Institution 

Representation. This provision applies to— 

(A) Solicitations for research, studies, 

supplies, or services of the type normally 

acquired from higher educational 

institutions; and 

(B) For DoD, NASA, and Coast Guard 

acquisitions, solicitations that contain the 

clause at 52.219–23, Notice of Price 

Evaluation Adjustment for Small 

Disadvantaged Business Concerns. 

(2) The following certifications are 

applicable as indicated by the Contracting 

Officer: 

[Contracting Officer check as appropriate.] 

ll(i) 52.219–19, Small Business Concern 

Representation for the Small Business 

Competitiveness Demonstration Program. 

lll(ii) 52.219–21, Small Business Size 

Representation for Targeted Industry 

Categories Under the Small Business 

Competitiveness Demonstration Program. 


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lll(iii) 52.219–22, Small Disadvantaged 

Business Status. 

lll(A) Basic. 

lll(B) Alternate I. 

lll(iv) 52.222–18, Certification 

Regarding Knowledge of Child Labor for 

Listed End Products. 

lll(v) 52.222–48, Exemption from 

Application of the Service Contract Act to 

Contracts for Maintenance, Calibration, or 

Repair of Certain Equipment Certification. 

lll(vi) 52.222–52 Exemption from 

Application of the Service Contract Act to 

Contracts for Certain Services—Certification. 

lll(vii) 52.223–9, with its Alternate I, 

Estimate of Percentage of Recovered Material 

Content for EPA-Designated Products 

(Alternate I only). 

lll(viii) 52.223–13, Certification of 

Toxic Chemical Release Reporting. 

lll(ix) 52.227–6, Royalty Information. 

lll (A) Basic. 

lll (B) Alternate I. 

lll(x) 52.227–15, Representation of 

Limited Rights Data and Restricted Computer 

Software. 

(d) * * * After reviewing the ORCA 

database information, the offeror verifies by 

submission of the offer that the 

representations and certifications currently 

posted electronically that apply to this 

solicitation as indicated in paragraph (c) of 

this provision have been entered or updated 

within the last 12 months, are current, 

accurate, complete, and applicable to this 

solicitation (including the business size 

standard applicable to the NAICS code 

referenced for this solicitation), as of the date 

of this offer and are incorporated in this offer 

by reference (see FAR 4.1201); except for the 

changes identified below [offeror to insert 

changes, identifying change by clause 

number, title, date]. * * * 

* * * * * 

[End of provision] 

■ 10. Amend section 52.212–3 by 

revising the date of the provision and 

paragraph (k)(1)(i) to read as follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

OFFEROR REPRESENTATIONS AND 

CERTIFICATIONS—COMMERCIAL 

ITEMS (FEB 2009) 

* * * * * 

(k) * * * 

[ ](1) * * * 

(i) The items of equipment to be serviced 

under this contract are used regularly for 

other than Governmental purposes and are 

sold or traded by the offeror (or subcontractor 

in the case of an exempt subcontract) in 

substantial quantities to the general public in 

the course of normal business operations; 

* * * * * 

[End of provision] 

■ 11. Amend section 52.212–5 by— 

■ a. Revising the date of the clause; 

■ b. Revising paragraph (c)(6); 

■ c. Removing from paragraph (e)(1) ‘‘in 

paragraphs (e)(1)(i) through (xi) of this 

paragraph’’ and adding ‘‘in this 

paragraph (e)(1)’’ in its place; and 

■ d. Revising paragraph (e)(1)(x). 

■ The revised text reads as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

CONTRACT TERMS AND 

CONDITIONS REQUIRED TO 

IMPLEMENT STATUTES OR 

EXECUTIVE ORDERS—COMMERCIAL 

ITEMS (FEB 2009) 

* * * * * 

(C) * * * 

(6) 52.222–53, Exemption from Application 

of the Service Contract Act to Contracts for 

Certain Services—Requirements (FEB 2009) 

(41 U.S.C. 351, et seq.). 

* * * * * 

(e)(1) * * * 

(x) 52.222–53, Exemption from Application 

of the Service Contract Act to Contracts for 

Certain Services-Requirements (FEB 2009)(41 

U.S.C. 351, et seq.). 

* * * * * 

[End of clause] 

■ 12. Amend section 52.222–48 by 

revising the date of the provision and 

paragraph (a)(1) to read as follows: 

52.222–48 Exemption from Application of 

the Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment Certification. 

* * * * * 

EXEMPTION FROM APPLICATION 

OF THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR MAINTENANCE, 

CALIBRATION, OR REPAIR OF 

CERTAIN EQUIPMENT 

CERTIFICATION (FEB 2009) 

* * * * * 

(a) * * * 

(1) The items of equipment to be serviced 

under this contract are used regularly for 

other than Government purposes, and are 

sold or traded by the offeror (or subcontractor 

in the case of an exempt subcontractor) in 

substantial quantities to the general public in 

the course of normal business operations; 

* * * * * 

[End of provision] 

■ 13. Amend section 52.222–53 by 

revising the date of the clause and 

paragraph (e) to read as follows: 

52.222–53 Exemption from Application of 

the Service Contract Act to Contracts for 

Certain Services—Requirements. 

* * * * * 

EXEMPTION FROM APPLICATION 

OF THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR CERTAIN 

SERVICES— REQUIREMENTS (FEB 

2009) 

* * * * * 

(e)(1) Except for services identified in FAR 

22.1003–4(d)(1)(iv), the subcontractor for 

exempt services shall be selected for award 

based on other factors in addition to price or 

cost with the combination of other factors at 

least as important as price or cost; or 

(2) A subcontract for exempt services shall 

be awarded on a sole source basis. 

* * * * * 

[End of clause] 

[FR Doc. E9–532 Filed 1–14–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 5, 6, and 24 

[FAC 2005–30; FAR Case 2008–003; Item 

IV; Docket 2008–0001, Sequence 08] 

RIN 9000–AL13 

Federal Acquisition Regulation; 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 

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) have agreed on an interim 

rule amending the Federal Acquisition 

Regulation (FAR) to implement Section 

844 of the National Defense 

Authorization Act for Fiscal Year 2008 

‘‘Public Disclosure of Justification and 

Approval Documents for 

Noncompetitive Contracts’’ (FY08 

NDAA). Section 844 of the FY08 NDAA 

stipulates the requirements regarding 

the public availability of justification 

and approval documents after the award 

of Federal contracts, except for 

information exempt from public 

disclosure. 

DATES: Effective Date: February 17, 

2009. 

Applicability Date: This interim rule 

applies to all contracts awarded from a 

6.303–1 justification and approval 

document on or after the effective date. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before March 16, 


sroberts on PROD1PC70 with RULES