Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11827 

Dated: March 13, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 15 as set forth 

below: 

PART 15—CONTRACTING BY 

NEGOTIATION 

■ 1. The authority citation for 48 CFR 

part 15 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 15.403–1 by 

revising paragraphs (c)(3)(ii)(B) and 

(c)(3)(ii)(C) to read as follows: 

15.403–1 Prohibition on obtaining cost or 

pricing data (10 U.S.C. 2306a and 41 U.S.C. 

254b). 

* * * * * 

(c) * * * 

(3) * * * 

(ii) * * * 

(B) For acquisitions funded by DoD, 

NASA, or Coast Guard, such 

modifications of a commercial item are 

exempt from the requirement for 

submission of cost or pricing data 

provided the total price of all such 

modifications under a particular 

contract action does not exceed the 

greater of the threshold for obtaining 

cost and pricing data in 15.403–4 or 5 

percent of the total price of the contract 

at the time of contract award. 

(C) For acquisitions funded by DoD, 

NASA, or Coast Guard such 

modifications of a commercial item are 

not exempt from the requirement for 

submission of cost or pricing data on the 

basis of the exemption provided for at 

FAR 15.403–1(c)(3) if the total price of 

all such modifications under a 

particular contract action exceeds the 

greater of the threshold for obtaining 

cost and pricing data in 15.403–4 or 5 

percent of the total price of the contract 

at the time of contract award. 

* * * * * 

[FR Doc. E9–5869 Filed 3–18–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 22 

[FAC 2005–31; FAR Case 2008–014; Item 

III; Docket 2009-0006; Sequence 1] 

RIN 9000–AL17 

Federal Acquisition Regulation; FAR 

Case 2008–014, Amendments to 

Incorporate New Wage Determinations 

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 preclude a possible 

scenario where a contracting officer has 

to unnecessarily reevaluate proposals 

already eliminated from a competition. 

DATES: Effective Date: April 20, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. Please cite FAC 

2005–31, FAR case 2008–014. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The Department of Labor (DOL) 

regulations set forth at 29 CFR 1.6(c)(2) 

and (3) require that, when contracting 

by negotiation, the contracting agencies 

must place modified wage 

determinations (WDs) into solicitations 

and contracts if the WDs are received 

before contract award. FAR 22.404–6(c) 

establishes that when contracting by 

negotiation, all written actions 

modifying WDs received by the 

contracting agency before contract 

award, or modifications to general WDs 

published on the Wage Determination 

Online (WDOL) before award, shall be 

incorporated into the solicitation. If an 

effective WD is received by the 

contracting officer before award, the 

contracting officer shall follow the 

procedures in FAR 22.404–5(c)(3) or (4). 

FAR 22.404–5(c)(3) covers contracting 

by negotiation when the closing date 

has passed; and it requires that a new 

WD with a changed wage rate must be 

furnished as an amendment to all 

prospective offerors that submitted 

proposals. There is an apparent 

inconsistency between this and FAR 

15.206(c) which requires that 

amendments issued after closing shall 

be issued to all offerors that have not 

been eliminated from the competition. 

This final rule amends the Federal 

Acquisition Regulation to correct the 

inconsistency at FAR 22.404–5(c)(3) by 

changing the language to indicate a 

contracting officer shall amend 

solicitations to incorporate new wage 

determinations and furnish the wage 

rate information to all offerors that have 

not been eliminated from the 

competition, if the closing date for 

receipt of offers has already passed. 

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 does 

not apply to this rule. This final rule 

does not constitute a significant FAR 

revision within the meaning of FAR 

1.501 and Public Law 98–577, and 

publication for public comments is not 

required. However, the Councils will 

consider comments from small entities 

concerning the affected FAR Part 22 in 

accordance with 5 U.S.C. 610. Interested 

parties must submit such comments 

separately and should cite 5 U.S.C. 601, 

et seq. (FAC 2005–31, FAR case 2008– 

014), in correspondence. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

not apply, because the final rule does 

not impose information collection 

requirements that require the approval 

of the Office of Management and Budget 

under 44 U.S.C. Chapter 35, et seq. 

List of Subjects in 48 CFR Part 22 

Government procurement. 

Dated: March 13, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 22 as set forth 

below: 

PART 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITION 

■ 1. The authority citation for 48 CFR 

part 22 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). 


pwalker on PROD1PC71 with RULES2
11828 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

22.404–5 [Amended] 

■ 2. Amend section 22.404–5 in 

paragraph (c)(3) by removing 

‘‘submitted proposals’’ and adding 

‘‘have not been eliminated from the 

competition’’ in its place. 

[FR Doc. E9–5873 Filed 3–17–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 25 and 52 

[FAC 2005–31; FAR Case 2008–021; Item 

IV; Docket 2009-0005; Sequence 1] 

RIN 9000–AL16 

Federal Acquisition Regulation; FAR 

Case 2008–021, Least Developed 

Countries that are Designated 

Countries 

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 implement a 

revision by the United States Trade 

Representative (USTR) to the list of 

Least Developed Countries that are 

designated countries under the Trade 

Agreements Act of 1979. 

DATES: Effective Date: March 19, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–31, FAR case 2008–021. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The list of Least Developed Countries 

is derived from a United Nations list of 

Least Developed Countries. The USTR 

has revised the list of Least Developed 

Countries that are designated as eligible 

countries under the Trade Agreements 

Act of 1979, as amended, to add Liberia 

and to remove Cape Verde. 

This final rule amends the FAR to 

revise (a) the definitions of ‘‘designated 

country’’ and ‘‘least developed country’’ 

at FAR 25.003 and (b) the definition of 

‘‘designated country’’ in the clauses at 

FAR 52.225–5, Trade Agreements, and 

52.225–11, Buy American Act— 

Construction Materials Under Trade 

Agreements. 

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 does 

not apply to this rule. This final rule 

does not constitute a significant FAR 

revision within the meaning of FAR 

1.501 and Pub. L. 98–577, and 

publication for public comments is not 

required. However, the Councils will 

consider comments from small entities 

concerning the affected FAR Parts 25 

and 52 in accordance with 5 U.S.C. 610. 

Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 601, et seq. (FAC 2005–31, FAR 

case 2008–021), in correspondence. 

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. Chapter 35, 

et seq. 

List of Subjects in 48 CFR Parts 25 and 

52 

Government procurement. 

Dated: March 13, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 25 and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 25 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 25—FOREIGN ACQUISITION 

■ 2. Amend section 25.003 by revising 

paragraph (3) of the definition 

‘‘Designated country’’ and the definition 

‘‘Least developed country’’ to read as 

follows: 

25.003 Definitions. 

* * * * * 

Designated country means any of the 

following countries: 

* * * * * 

(3) A least developed country 

(Afghanistan, Angola, Bangladesh, 

Benin, Bhutan, Burkina Faso, Burundi, 

Cambodia, Central African Republic, 

Chad, Comoros, Democratic Republic of 

Congo, Djibouti, East Timor, Equatorial 

Guinea, Eritrea, Ethiopia, Gambia, 

Guinea, Guinea-Bissau, Haiti, Kiribati, 

Laos, Lesotho, Liberia, Madagascar, 

Malawi, Maldives, Mali, Mauritania, 

Mozambique, Nepal, Niger, Rwanda, 

Samoa, Sao Tome and Principe, 

Senegal, Sierra Leone, Solomon Islands, 

Somalia, Tanzania, Togo, Tuvalu, 

Uganda, Vanuatu, Yemen, or Zambia); 

or 

* * * * * 

Least developed country means any of 

the following countries: Afghanistan, 

Angola, Bangladesh, Benin, Bhutan, 

Burkina Faso, Burundi, Cambodia, 

Central African Republic, Chad, 

Comoros, Democratic Republic of 

Congo, Djibouti, East Timor, Equatorial 

Guinea, Eritrea, Ethiopia, Gambia, 

Guinea, Guinea-Bissau, Haiti, Kiribati, 

Laos, Lesotho, Liberia, Madagascar, 

Malawi, Maldives, Mali, Mauritania, 

Mozambique, Nepal, Niger, Rwanda, 

Samoa, Sao Tome and Principe, 

Senegal, Sierra Leone, Solomon Islands, 

Somalia, Tanzania, Togo, Tuvalu, 

Uganda, Vanuatu, Yemen, or Zambia. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 3. Amend section 52.212–5 by 

revising the date of the clause and 

paragraph (b)(31) to read 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 (MAR 2009) 

* * * * * 

(b) * * * 

ll (31) 52.225–5, Trade Agreements 

(MAR 2009) (19 U.S.C. 2501, et seq., 19 

U.S.C. 3301 note). 

* * * * * 

■ 4. Amend section 52.225-5 by revising 

the date of the clause and in paragraph 

(a) in the definition ‘‘Designated 

country’’, revising paragraph (3) to read 

as follows: 

52.225–5 Trade Agreements. 

* * * * * 

TRADE AGREEMENTS (MAR 2009) 

(a) * * * 

Designated Country * * * 

(3) A least developed country (Afghanistan, 

Angola, Bangladesh, Benin, Bhutan, Burkina 

Faso, Burundi, Cambodia, Central African 

Republic, Chad, Comoros, Democratic 

Republic of Congo, Djibouti, East Timor, 

Equatorial Guinea, Eritrea, Ethiopia, Gambia, 


pwalker on PROD1PC71 with RULES2