11820 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket FAR 2009–0001, Sequence 2] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–31; 

Introduction 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Summary presentation of rules. 

SUMMARY: This document summarizes 

the Federal Acquisition Regulation 

(FAR) rules agreed to by the Civilian 

Agency Acquisition Council and the 

Defense Acquisition Regulations 

Council in this Federal Acquisition 

Circular (FAC) 2005–31. A companion 

document, the Small Entity Compliance 

Guide (SECG), follows this FAC. The 

FAC, including the SECG, is available 

via the Internet at http:// 

www.regulations.gov. 

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. 

Please cite FAC 2005–31 and the 

specific FAR case numbers. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

LIST OF RULES IN FAC 2005–31 

Item Subject FAR case Analyst 

I ............ Small Business Size Rerepresentation ........................................................................................... 2006–032 Cundiff 

II ........... Clarification of Submission of Cost or Pricing Data on Non-Commercial Modifications of Commercial Items (Interim).2008–012 Chambers 

III .......... Amendments to Incorporate New Wage Determinations ................................................................ 2008–014 Woodson 

IV .......... Least Developed Countries that are Designated Countries ............................................................ 2008–021 Murphy 

V ........... Federal Food Donation Act of 2008 (Interim) .................................................................................. 2008–017 Jackson 

VI .......... Technical Amendments ...................................................................................................................

SUPPLEMENTARY INFORMATION: 

Summaries for each FAR rule follow. 

For the actual revisions and/or 

amendments to these FAR cases, refer to 

the specific item number and subject set 

forth in the documents following these 

item summaries. 

FAC 2005–31 amends the FAR as 

specified below: 

Item I—Small Business Size 

Rerepresentation (FAR Case 2006–032) 

This rule amends the Federal 

Acquisition Regulation (FAR) to adopt 

as final, with changes, an interim FAR 

rule published in the Federal Register at 

72 FR 36852, July 5, 2007, amending the 

FAR to implement the Small Business 

Administration’s (SBA) final rule 

published on November 15, 2006 (71 FR 

66434), entitled Small Business Size 

Regulations; Size for Purposes of 

Governmentwide Acquisition Contracts, 

Multiple Award Schedule Contracts and 

Other Long-Term Contracts; 8(a) 

Business Development/Small 

Disadvantaged Business; Business 

Status Determinations. The purpose of 

the SBA rule and this FAR rule is to 

improve the accuracy of small business 

size status reporting, at the prime 

contract level, over the life of certain 

contracts (long-term contracts, 

novations, acquisitions, and mergers). 

Contractors are required to rerepresent 

their size status prior to the end of the 

fifth year of a contract that is more than 

five years in duration (long-term 

contract); prior to exercising any option 

thereafter; following execution of a 

novation agreement on any contract; or 

following a merger or acquisition, 

regardless of whether there is a novation 

agreement. A change in the size status 

does not change the terms and 

conditions of the contract, but the 

agency may no longer include the value 

of options exercised or orders issued 

against the contract in its small business 

prime contracting goal achievements. 

Item II—Clarification of Submission of 

Cost or Pricing Data on NonCommercial Modifications of 

Commercial Items (FAR Case 2008–012) 

(Interim) 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (Councils) are 

issuing an interim final rule amending 

the Federal Acquisition Regulation 

(FAR) to harmonize the thresholds for 

cost or pricing data on non-commercial 

modifications of commercial items to 

reflect the Truth In Negotiation Act 

(TINA) threshold for cost and pricing 

data. 

The Councils are hereby 

implementing a requirement of the 

National Defense Authorization Act 

(NDAA) for FY 2008. Specifically, 

Section 814 of the Act requires the 

harmonization of the threshold for cost 

or pricing data on non-commercial 

modifications of commercial items with 

the TINA threshold for cost and pricing 

data. By linking the threshold for cost or 

pricing data on non-commercial 

modifications of commercial items with 

the TINA threshold at FAR 15.403–4, 

whenever the TINA threshold is 

adjusted the threshold for cost or 

pricing data on non-commercial 

modifications of commercial items will 

be automatically adjusted as well. 

Item III—Amendments to Incorporate 

New Wage Determinations(FAR Case 

2008–014) 

The final rule amends the Federal 

Acquisition (FAR) to correct an 

inconsistency between FAR 15.206(c) 

and 22.404–5(c)(3), by revising the 

language at 22.404–5(c). This change 

requires the contracting officer to amend 

solicitations to incorporate new Davis 

Bacon wage determinations (WD) and 

furnish the wage rate information only 

to all offerors that have not been 

eliminated from the competition, if the 

closing date for receipt of offers has 

already passed. The revision is 

necessary to ensure consistency with 

FAR 15.206(c), and eliminate a possible 

scenario where incorporation of an 

updated WD into the solicitation 

process, could cause an unnecessary 

and counterproductive reevaluation of 

proposals already eliminated from 

competition. This change is consistent 

with the intent of the Department of 

Labor regulations, ensuring that the 

most current WD is placed in the 

contract at the time of award for 


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Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 11821 

compliance at the start of contract 

performance. 

Item IV—Least Developed Countries 

that are Designated Countries (FAR 

Case 2008–021) 

This final rule amends the Federal 

Acquisition Regulation (FAR) to revise 

the definition of designated country, 

adding Liberia and removing Cape 

Verde. Least Developed Countries form 

a subset of designated countries. The list 

of Least Developed Countries is derived 

from a United Nations list of Least 

Developed Countries. The United States 

Trade Representative has updated the 

list of Least Developed Countries that 

are treated as designated countries. In 

acquisitions that are covered by the 

World Trade Organization Government 

Procurement Agreement, contracting 

officers must acquire only U.S.-made or 

designated country end products, or 

U.S. or designated-country services, 

unless offers of such end products or 

services are not received or are 

insufficient to fulfill the requirement 

(FAR 25.403(c)). 

Item V—Federal Food Donation Act of 

2008 (Pub. L. 110–247) (FAR Case 2008– 

017) (Interim) 

This interim rule amends the Federal 

Acquisition Regulation (FAR) Parts 26, 

31, and 52 to encourage executive 

agencies and their contractors to donate 

apparently wholesome excess food to 

nonprofit organizations that provide 

assistance to food-insecure people in the 

United States. This change implements 

the Federal Food Donation Act of 2008 

(Pub. L. 110–247) which encourages 

executive agencies and their contractors, 

in contracts for the provision, service, or 

sale of food to encourage the 

contractors, to the maximum extent 

practicable and safe, to donate 

apparently wholesome excess food to 

nonprofit organizations that provide 

assistance to food-insecure people in the 

United States. The rule is effective for 

all solicitations and contracts greater 

than $25,000 for the provision, service, 

or sale of food in the United States 

issued on or after the effective date of 

the rule. 

Item VI—Technical Amendments 

Editorial changes are made at FAR 

3.503–2, 47.103–1, and 52.225–11. 

Dated: March 13, 2009 

Al Matera, 

Director, Office of Acquisition Policy. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005-31 is issued under the authority of 

the Secretary of Defense, the 

Administrator of General Services, and 

the Administrator for the National 

Aeronautics and Space Administration. 

Unless otherwise specified, all 

Federal Acquisition Regulation (FAR) 

and other directive material contained 

in FAC 2005-31 is effective March 19, 

2009, except for Items I and III, which 

are effective April 20, 2009. 

Dated: March 12, 2009. 

Amy G. Williams, 

Acting Deputy Director, Defense Procurement 

and Acquisition Policy (Defense Acquisition 

Regulations System). 

Dated: March 11, 2009. 

Rodney P. Lantier, 

Acting Senior Procurement Executive & 

Acting Deputy Chief Acquisition Officer, 

Office of the Chief Acquisition Officer, U.S. 

General Services Administration. 

Dated: March 11, 2009. 

William P. McNally, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. E9–5874 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 Parts 1, 4, 17, 19, and 52 

[FAC 2005–31; FAR Case 2006–032; Item 

I; Docket 2007–0002; Sequence 11] 

RIN 9000–AK78 

Federal Acquisition Regulation; FAR 

Case 2006–032, Small Business Size 

Rerepresentation 

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 the 

Small Business Administration’s (SBA) 

final rule published on November 15, 

2006 (71 FR 66434) entitled, Small 

Business Size Regulations; Size for 

Purposes of Governmentwide 

Acquisition Contracts, Multiple Award 

Schedule Contracts and Other LongTerm Contracts; 8(a) Business 

Development/Small Disadvantaged 

Business; Business Status 

Determinations. The purpose of the SBA 

rule is to improve the accuracy of small 

business size status reporting over the 

life of certain contracts. 

DATES: Effective Date: April 20, 2009. 

Applicability date: This rule applies 

to solicitations issued and contracts 

awarded on or after April 20, 2009. All 

long-term contracts as defined in this 

rule, awarded to small business 

concerns prior to June 30, 2007, that 

have not yet been modified to include 

FAR 52.219–28, must be modified to 

include FAR 52.219–28 within 90 days 

after the effective date of this final rule. 

FOR FURTHER INFORMATION CONTACT: Ms. 

Rhonda Cundiff, Procurement Analyst, 

at (202) 501–0044 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the FAR Secretariat at (202) 501–4755. 

Please cite FAC 2005–31, FAR case 

2006–032. 

SUPPLEMENTARY INFORMATION: 

A. Background 

DoD, GSA, and NASA published an 

interim rule in the Federal Register at 

72 FR 36852 on July 5, 2007, to 

implement the Small Business 

Administration’s (SBA) final rule 

published on November 15, 2006 (71 FR 

66434) entitled, Small Business Size 

Regulations; Size for Purposes of 

Governmentwide Acquisition Contracts, 

Multiple Award Schedule Contracts and 

Other Long-Term Contracts; 8(a) 

Business Development/Small 

Disadvantaged Business; Business 

Status Determinations. 

Four commenters submitted 

comments on the interim rule. The 

comments recommend substantive 

changes to the rule, request clarification, 

and recommend editorial changes to the 

language for clarity and consistency. A 

discussion of these comments and the 

changes made to the rule as a result of 

them is provided below: 

Comment: One commenter states that 

the interim rule is ineffective at 

preventing ongoing misrepresentation 

and miscoding on individual contracts 

because it does not impose a time limit 

on when existing contracts have to be 

modified in order to incorporate the 

small business rerepresentation 

requirements. This time period could 

easily be several years, until the time 

that the base period runs out and the 

agency must face the choice to exercise 

options. The commenter recommends 

that the rule be modified to impose a 

reasonable period of 30–90 days 

requiring all contracts to be modified for 

inclusion of the rerepresentation 

requirements, and further provide that 

these requirements will be included by 


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