11826 Federal Register / Vol. 74, No. 52 / Thursday, March 19, 2009 / Rules and Regulations 

clause that the data have been validated or 

updated, and provide the date of the 

validation or update. 

* * * * * 

(End of clause) 

[FR Doc. E9–5871 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 15 

[FAC 2005–31; FAR Case 2008–012; Item 

II; Docket 2008–0001, Sequence 10] 

RIN 9000–AL12 

Federal Acquisition Regulation; FAR 

Case 2008–012, Clarification of 

Submission of Cost or Pricing Data on 

Non-Commercial Modifications of 

Commercial Items 

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 

814 of the National Defense 

Authorization Act for Fiscal Year 2008. 

Section 814 required the harmonization 

of the thresholds for cost or pricing data. 

Specifically, Section 814 required 

alignment of the threshold for cost or 

pricing data on non-commercial 

modifications of commercial items with 

the Truth In Negotiation Act (TINA) 

threshold for cost and pricing data. 

DATES: Effective Date: March 19, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before May 18, 

2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–31, FAR case 

2008–012, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–012’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2008– 

012. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2008–012’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAC 2005–31, FAR case 

2008–012, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward N. Chambers, Procurement 

Analyst, at (202) 501–3221 for 

clarification of content. Please cite FAC 

2005–31, FAR case 2008–012. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

The National Defense Authorization 

Act (NDAA) for Fiscal Year 2008, 

Section 814, implemented two areas of 

clarification with regards to the 

submission of cost or pricing data on 

non-commercial modifications of 

commercial items. The first area dealt 

with clarifying at what point during the 

life of the contract that the cost or 

pricing data threshold should be 

applied. Section 814 of the NDAA for 

FY 2008 clarified this point by inserting 

‘‘(at the time of contract award’’) after 

‘‘total price of the contract’’ language 

already contained in this FAR section. 

The second area dealt with the 

harmonization of the thresholds for cost 

or pricing data. Section 814 of the 

NDAA for FY 2008 deleted the current 

threshold amount ($500,000) for cost or 

pricing data relative to non-commercial 

modifications of commercial items and 

aligned this threshold with the current 

Truth In Negotiation Act (TINA) 

threshold for cost or pricing data of 

$650,000. Thus, as the TINA threshold 

for cost or pricing data is adjusted in the 

future so will the threshold for 

obtaining cost or pricing data on noncommercial modifications of 

commercial items. This case will make 

the necessary changes within the FAR. 

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 interim rule is not expected to 

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., 

since it is harmonizing this FAR section 

with other parts of the FAR and should 

actually reduce the administrative 

burden on contractors by not requiring 

them to track two separate dollar 

thresholds for submitting cost or pricing 

data. It is also increasing this dollar 

threshold relative to the submittal of 

cost or pricing data in this situation and 

thus contractors will experience a 

reduced administrative burden since 

they no longer will be required to 

submit cost or pricing data on this lower 

threshold amount. Therefore, an Initial 

Regulatory Flexibility Analysis has not 

been performed. The Councils will 

consider comments from small entities 

concerning the affected FAR Part 15 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– 

012), 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. 

D. Determination to Issue an Interim 

Rule 

A determination has been made under 

the authority of the Secretary of Defense 

(DoD), the Administrator of General 

Services (GSA), and the Administrator 

of the National Aeronautics and Space 

Administration (NASA) that urgent and 

compelling reasons exist to promulgate 

this interim rule without prior 

opportunity for public comment. This 

action is necessary because this 

provision of the National Defense 

Authorization Act for Fiscal Year 2008, 

Section 814 went into effect upon 

enactment, on January 28, 2008. 

However, pursuant to Pub. L. 98–577 

and FAR 1.501, the Councils will 

consider public comments received in 

response to this interim rule in the 

formation of the final rule. 

List of Subjects in 48 CFR Part 15 

Government procurement. 


pwalker on PROD1PC71 with RULES2
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