Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 12731 

(Catalog of Federal Domestic Assistance No. 

97.022, ‘‘Flood Insurance.’’) 

Dated: January 22, 2009. 

Michael K. Buckley, 

Acting Assistant Administrator, Mitigation 

Directorate, Department of Homeland 

Security, Federal Emergency Management 

Agency. 

[FR Doc. E9–6664 Filed 3–24–09; 8:45 am] 

BILLING CODE 9110–12–P 

GENERAL SERVICES 

ADMINISTRATION 

48 CFR Parts 509 and 552 

[GSAR Amendment 2009–01; GSAR Case 

2006–G512 (Change 27); Docket 2008–0007; 

Sequence 9] 

RIN 3090–AI57 

General Services Acquisition 

Regulation; GSAR Case 2006–G512; 

Rewrite of GSAR Part 509, Contractor 

Qualifications 

AGENCY: Office of the Chief Acquisition 

Officer, General Services 

Administration (GSA). 

ACTION: Final rule. 

SUMMARY: The General Services 

Administration (GSA) is amending the 

General Services Administration 

Acquisition Manual (GSAM) to update 

the text addressing contractor 

qualifications. This rule is a result of the 

General Services Administration 

Acquisition Manual (GSAM) rewrite 

initiative undertaken by GSA to revise 

the GSAM to maintain consistency with 

the Federal Acquisition Regulation 

(FAR), and to implement streamlined 

and innovative acquisition procedures 

that contractors, offerors, and GSA 

contracting personnel can use when 

entering into and administering 

contractual relationships. The GSAM 

incorporates the General Services 

Administration Acquisition Regulation 

(GSAR) as well as internal agency 

acquisition policy. 

DATES: Effective Date: April 24, 2009. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat (VPR), Room 

4041, GS Building, Washington, DC, 

20405, (202) 501–4755. Please cite 

Amendment 2009–01, GSAR case 2006– 

G512 (Change 27). 

SUPPLEMENTARY INFORMATION: 

A. Background 

The GSAR Rewrite Project and 

Process 

On February 15, 2006, GSA published 

an Advance Notice of Proposed 

Rulemaking (ANPR) with request for 

comments on all parts of the GSAM. As 

a result, two comments were received 

on Part 509. These are addressed below. 

In addition, internal review comments 

have been incorporated as appropriate. 

A proposed rule for the regulatory 

portion of the GSAM was published in 

the Federal Register at 73 FR 36013, 

June 25, 2008. In addition, GSA 

Acquisition Letter V–08–06, entitled 

‘‘Changes to Procedures for Conducting 

Fact-Finding in a Debarment/ 

Suspension Case Under GSAM Subpart 

509.4,’’ dated June 20, 2008, was 

incorporated into Subpart 509.4 (see 

below). The public comment period for 

GSAR Part 509 closed on August 25, 

2008, and six comments were received 

from five commenters. 

The Rewrite of Part 509 

This final rule contains the revisions 

made to Part 509, Contractor 

Qualifications. GSA Form 353, 

Performance Evaluation and Facilities 

Report, is deleted so that similar FAR 

forms will be used instead. Subpart 

509.2, subsection 509.405–1(b), and 

clauses 552.209–70 through 552.209–73 

are deleted because they are deemed 

unnecessary. The explanation of 

‘‘auditor’’ in 509.105–1 is removed 

because it is partly duplicative (credit 

and finance) and too restrictive (does 

not allow use of DCAA). Subsection 

509.406–3(b)(7) is deleted as duplicative 

of 509.406–3(b)(5). The debarment legal 

authorities in 509.401 are updated. The 

term ‘‘Suspension and Debarment 

Official’’ is used consistently 

throughout the Part. Subparagraph 

509.406–3(d) was rewritten to 

incorporate the procedures for 

conducting fact finding in a debarment 

or suspension case from GSA 

Acquisition Letter V–08–06, dated June 

20, 2008. 

Discussion of Comments 

A proposed rule was published in the 

Federal Register at 73 FR 36013, June 

25, 2008. The comment period closed 

August 25, 2008, and six comments 

were received from five commenters. 

Also, GSA Acquisition Letter V–08–06, 

published on June 20, 2008, was 

incorporated in the final rule. 

1. No new guidelines on teaming. 

Comment: Four commenters wrote in 

support of the revisions to GSAR Part 

509 and to advocate not creating new 

guidelines that would make it more 

difficult for small businesses to work as 

teams. 

Response: Concur. There are no plans 

to create new guidelines for teaming. 

2. Revise rules for GSA Form 527 so 

as not to make it a last resort for 

contracting officers. 

Comment: The GSA Form 527, 

Contractor Qualifications and Financial 

Information, was retained, but 

associated text was modified to 

authorize its use ‘‘only after exhausting 

other available sources of information.’’ 

While acknowledging that the GSA 

Form 527 is lengthy, the commenter 

does not think that making the preaward 

process longer by having contracting 

officers research all other sources of 

information prior to seeking needed 

information from the contractor is 

helpful to either party. The commenter 

said he would not be entirely 

comfortable making a responsibility 

determination based only on 

information external to the offeror, 

without providing the offeror an 

opportunity to tell its own story about 

qualifications and abilities. 

Response: Nonconcur. FAR 9.105 

includes the standards and procedures 

for requesting and obtaining information 

sufficient to determine the 

responsibility of a prospective 

contractor, i.e., that an offeror meets the 

standards at FAR 9.104. A careful 

reading of FAR 9.105–1 nets a long list 

of potential sources for objective 

information, none of which are the 

offeror itself. While there is nothing 

wrong with obtaining information 

directly from an offeror, the offeror itself 

should not be the first, or the only, 

source of information for making a 

responsibility determination. GSA 

acquisition personnel should make 

greater use of the information sources 

listed in the FAR, and appropriate use 

of such sources would not extend the 

length of time needed to make a 

responsibility determination. 

3. Consider eliminating GSA Form 

527. 

Comment: A commenter proposed to 

eliminate GSA Form 527, as long as 

GSA Finance will continue to perform 

financial reviews without it. Rather than 

using a lengthy form, the commenter 

said, perhaps a brief GSAR solicitation 

provision could be written detailing the 

type of information an offeror may be 

requested to provide to support a 

responsibility determination. 

Response: Nonconcur. While this is a 

good concept, made in the spirit of 

eliminating unnecessary agency-level 

supplementation of the FAR, the GSA 

Office of Finance, at this time, will not 

agree to perform financial reviews 

without it. 

4. GSA Acquisition letter V–08–06, 

entitled ‘‘Changes to Procedures for 


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12732 Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 

Conducting Fact-Finding in a 

Debarment/Suspension Case Under 

GSAM Subpart 509.4.’’ 

Comment: In accordance with the 

GSAM rewrite drafting principles, a 

GSA acquisition letter published after 

the Part 509 proposed rule was sent for 

publication, was incorporated into the 

final GSAM Part 509. 

Response: The revisions made by the 

Acquisition Letter, published on June 

20, 2008, were included in the draft 

final rule. Subpart 509.4 was revised at 

509.403 to incorporate the definition of 

‘‘fact-finding official,’’ and the 

procedures for fact finding replaced the 

earlier version of 509.406–3, 

Procedures, in accordance with the 

authority granted at FAR 9.406–3(b). 

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 General Services Administration 

certifies that this final rule will not have 

a significant economic impact on a 

substantial number of small entities 

within the meaning of the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq., 

because the only changes are minor 

ones, i.e., deleting a GSA-unique form 

and four GSA-unique clauses in favor of 

using the FAR forms and clauses. 

C. Paperwork Reduction Act 

The Paperwork Reduction Act does 

apply; however, these changes to the 

GSAR do not impose additional 

information collection requirements to 

the paperwork burden previously 

approved under OMB Control Number 

3090–0007. 

List of Subjects in 48 CFR Parts 509 and 

552 

Government procurement. 

Dated: December 15, 2008. 

David A. Drabkin, 

Senior Procurement Executive, Office of the 

Chief Acquisition Officer, General Services 

Administration. 

■ Therefore, GSA amends 48 CFR parts 

509 and 552 as set forth below: 

■ 1. The authority citation for 48 CFR 

part 509 is revised to read as follows: 

Authority: 40 U.S.C. 121(c). 

PART 509—CONTRACTOR 

QUALIFICATIONS 

■ 2. Revise sections 509.105, 509.105–1, 

and 509.105–2 to read as follows: 

509.105 Procedures. 

509.105–1 Obtaining information. 

(a) From a prospective contractor. 

FAR 9.105–1 lists a number of sources 

of information that a contracting officer 

may utilize before making a 

determination of responsibility. The 

contracting officer may request 

information directly from a prospective 

contractor using GSA Form 527, 

Contractor’s Qualifications and 

Financial Information, but only after 

exhausting other available sources of 

information. 

(b) From Government personnel. The 

contracting officer may solicit and 

consider information from any 

appropriate activities, e.g., legal 

counsel, quality control, contract 

management, credit and finance, and 

auditors before determining that an 

offeror is responsible. 

509.105–2 Determinations and 

documentation. 

(a) The contracting officer shall 

provide written notification to a 

prospective contractor determined not 

responsible. Include the basis for the 

determination. Notification provides the 

prospective contractor with the 

opportunity to correct any problem for 

future solicitations. 

(b) Due to the potential for de facto 

debarment, the contracting officer shall 

avoid making repeated determinations 

of nonresponsibility based on the same 

past performance information. 

(c) To provide for timely 

consideration of the need to institute 

action to debar a contractor, the 

contracting officer shall submit a copy 

of each nonresponsibility 

determination, other than those based 

on capacity or financial capability, to 

the Suspension and Debarment Official 

in the Office of the Chief Acquisition 

Officer. 

509.106 [Removed] 

■ 3. Section 509.106 is removed. 

Subpart 509.2 [Removed] 

■ 4. Subpart 509.2 is removed. 

■ 5. Revise section 509.306 to read as 

follows: 

509.306 Solicitation requirements. 

The clauses at FAR 52.209–3 and 

52.209–4 do not cover all the 

solicitation requirements described in 

FAR 9.306. If a solicitation contains a 

testing and approval requirement, the 

contracting officer must address the 

requirements in FAR 9.306(d) and (f) 

through (j) in the solicitation’s Section 

H, special contract requirements. 

509.308 [Removed] 

■ 6. Section 509.308 is removed. 

■ 7. Revise section 509.401 to read as 

follows: 

509.401 Applicability. 

This subpart applies to all the 

following: 

(a) Acquisitions of personal property, 

nonpersonal services, construction, and 

space in buildings. 

(b) Acquisition of transportation 

services (Federal Management 

Regulation (FMR) Parts 102–117 and 

102–118 (41 CFR parts 102–117 and 

102–118)). 

(c) Contracts for disposal of personal 

property (FMR Parts 102–36 through 

102–38 (41 CFR parts 102–36 through 

102–38)). 

(d) Covered transactions as defined by 

41 CFR part 105–68. 

■ 8. Amend section 509.403 by adding, 

in alphabetical order, the definitions 

‘‘Debarring official’’ and ‘‘Suspending 

official’’; and, by revising the definition 

‘‘Fact-finding official. The added and 

revised text reads as follows: 

509.403 Definitions. 

Debarring official means the 

Suspension and Debarment Official 

within the Office of the Chief 

Acquisition Officer. 

Fact-finding official, means the 

Suspension and Debarment Official or a 

designee. 

* * * * * 

Suspending official means the 

Suspension and Debarment Official 

within the Office of the Chief 

Acquisition Officer. 

■ 9. Revise sections 509.405, 509.405–1 

and 509.405–2 to read as follows: 

509.405 Effect of listing. 

509.405–1 Continuation of current 

contracts. 

(a) When a contractor appears on the 

current EPLS, consider terminating a 

contract under any of the following 

circumstances: 

(1) Any circumstances giving rise to 

the debarment or suspension also 

constitute a default in the contractor’s 

performance of the contract. 

(2) The contractor presents a 

significant risk to the Government in 

completing the contract. 

(3) The conduct that provides the 

cause of the suspension, proposed 

debarment, or debarment involved a 

GSA contract. 

(b) Before terminating a contract when 

a contractor appears on the current 

EPLS, consider the following factors: 

(1) Seriousness of the cause for 

debarment or suspension. 


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Federal Register / Vol. 74, No. 56 / Wednesday, March 25, 2009 / Rules and Regulations 12733 

(2) Extent of contract performance. 

(3) Potential costs of termination and 

reprocurement. 

(4) Need for or urgency of the 

requirement, contract coverage, and the 

impact of delay for reprocurement. 

(5) Availability of other safeguards to 

protect the Government’s interest until 

completion of the contract. 

(6) Availability of alternate 

competitive sources to meet the 

requirement (e.g., other multiple award 

contracts, readily available commercial 

items.) 

(c) The responsibilities of the agency 

head under FAR 9.405–1 are delegated 

to the GSA Suspension and Debarment 

Official. 

509.405–2 Restrictions on subcontracting. 

The responsibilities of the agency 

head under FAR 9.405–2(a) are 

delegated to the GSA Suspension and 

Debarment Official. 

■ 10. Revise section 509.406–1 to read 

as follows: 

509.406–1 General. 

The Suspension and Debarment 

Official is the designee under FAR 

9.406–1(c). 

■ 11. Amend section 509.406–3 by— 

■ a. Removing from paragraphs (a) and 

(b), the words ‘‘debarring official’’ and 

adding the words ‘‘Suspension and 

Debarment Official’’ in its place each 

time it appears; 

■ b. Removing from paragraph (b)(2), 

the word ‘‘Number’’ and adding the 

word ‘‘Numbers’’ in its place; 

■ c. Removing paragraph (b)(7); 

■ d. Revising paragraph (c); and 

■ e. Removing from paragraphs (d)(1) 

and (d)(2) the words ‘‘debarring official’’ 

and adding the words ‘‘Suspension and 

Debarment Official’’ in its place each 

time it appears; and 

■ f. Revising paragraph (d)(3). 

■ The revised text reads as follows: 

509.406–3 Procedures. 

* * * * * 

(c) Review. The Suspension and 

Debarment Official will review the 

report, and after coordinating with 

assigned legal counsel— 

(1) Initiate debarment action; 

(2) Decline debarment action; 

(3) Request additional information; or 

(4) Refer the matter to the OIG for 

further investigation and development 

of a case file. 

(d) * * * 

(3) Following a review of the record 

and, if needed, a presentation by the 

contractor in opposition to the proposed 

action, the Suspension and Debarment 

Official will determine whether there is 

a genuine dispute of material fact. If so, 

the Suspension and Debarment Official 

will initiate the fact-finding process. 

The fact-finding official will: 

(i) Establish a date for a fact-finding 

proceeding, normally to be held within 

45 days of the determination of who 

will function as the fact-finding official. 

(ii) Grant extensions for good cause. 

(iii) Provide notice of the scheduled 

hearing. 

(iv) Provide the parties with a 

schedule for exchange of documents 

and witness lists. 

(v) Develop an official transcript of 

the fact-finding proceeding. 

(vi) Provide the Government’s 

representative and the contractor with 

an opportunity to present evidence 

relevant to the facts at issue. The 

contractor may appear in person or 

through a representative. 

(vii) Conduct hearings under rules 

consistent with FAR 9.406–3 pertaining 

to fact finding. Neither the Federal 

Rules of Evidence nor the Federal Rules 

of Civil Procedure govern fact finding. 

Hearsay evidence may be presented and 

will be given appropriate weight by the 

fact-finding official. 

(viii) Provide for witness testimony. 

Witnesses may testify in person. 

Witnesses are subject to cross 

examination. 

(ix) Prepare written findings of fact 

based on a preponderance of the 

evidence and submit them to both the 

Suspension and Debarment Official and 

the contractor within 20 calendar days 

following the conclusion of the factfinding proceeding. 

509.407–1 [Amended] 

■ 12. Amend section 509.407–1 by 

removing the words ‘‘suspending 

official’’ and adding ‘‘Suspension and 

Debarment Official’’ in its place. 

509.407–3 [Amended] 

■ 13. Amend section 509.407–3 by 

removing the words ‘‘suspending 

official’’ and adding ‘‘Suspension and 

Debarment Official’’ in its place each 

time it appears. 

PART 552—SOLICITATION 

PROVISIONS AND CONTRACT 

CLAUSES 

■ 14. The authority citation for 48 CFR 

part 552 continues to read as follows: 

Authority: 40 U.S.C. 121(c). 

552.209–70 through 552.209–73 

[Removed] 

■ 15. Sections 552.209–70 through 

552.209–73 are removed. 

[FR Doc. E9–6574 Filed 3–24–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF COMMERCE 

National Oceanic and Atmospheric 

Administration 

50 CFR Part 679 

[Docket No. 0810141351–9087–02] 

RIN 0648–XN18 

Fisheries of the Exclusive Economic 

Zone Off Alaska; Pacific Ocean Perch 

for Vessels in the Bering Sea and 

Aleutian Islands Trawl Limited Access 

Fishery in the Eastern Aleutian District 

of the Bering Sea and Aleutian Islands 

Management Area 

AGENCY: National Marine Fisheries 

Service (NMFS), National Oceanic and 

Atmospheric Administration (NOAA), 

Commerce. 

ACTION: Temporary rule; closure. 

SUMMARY: NMFS is prohibiting directed 

fishing for Pacific ocean perch for 

vessels participating in the Bering Sea 

and Aleutian Islands (BSAI) trawl 

limited access fishery in the Eastern 

Aleutian District of the BSAI. This 

action is necessary to prevent exceeding 

the 2009 Pacific ocean perch total 

allowable catch (TAC) specified for 

vessels participating in the BSAI trawl 

limited access fishery in the Eastern 

Aleutian District of the BSAI. 

DATES: Effective 1200 hrs, Alaska local 

time (A.l.t.), March 22, 2009, through 

2400 hrs, A.l.t., December 31, 2009. 

FOR FURTHER INFORMATION CONTACT: 

Steve Whitney, 907–586–7269. 

SUPPLEMENTARY INFORMATION: NMFS 

manages the groundfish fishery in the 

BSAI exclusive economic zone 

according to the Fishery Management 

Plan for Groundfish of the Bering Sea 

and Aleutian Islands Management Area 

(FMP) prepared by the North Pacific 

Fishery Management Council under 

authority of the Magnuson–Stevens 

Fishery Conservation and Management 

Act. Regulations governing fishing by 

U.S. vessels in accordance with the FMP 

appear at subpart H of 50 CFR part 600 

and 50 CFR part 679. 

The 2009 Pacific ocean perch TAC 

allocated as a directed fishing allowance 

to vessels participating in the BSAI 

trawl limited access fishery in the 

Eastern Aleutian District of the BSAI is 

365 metric tons as established by the 

2009 and 2010 final harvest 

specifications for groundfish in the 

BSAI (74 FR 7359, February 17, 2009). 

In accordance with § 679.20(d)(1)(iii), 

the Administrator, Alaska Region, 

NMFS (Regional Administrator), has 

determined that the 2009 Pacific ocean 

perch TAC allocated to vessels 


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