14622 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Chapter 1 

[Docket FAR–2009–0001, Sequence 3] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–32; 

Introduction 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Summary presentation of final 

and interim rules, and technical 

amendments and corrections. 

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) 2005–32. A companion 

document, the Small Entity Compliance 

Guide (SECG), follows this FAC. The 

FAC, including the SECG, is available 

via the Internet at http://acquisition.gov/ 

far. 

DATES: For effective dates and comment 

dates, see separate documents which 

follow. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact the 

analyst whose name appears in the table 

below in relation to each FAR case or 

subject area. Please cite FAC 2005–32 

and specific FAR case number(s). 

Interested parties may also visit our 

Web site at http://acquisition.gov/far. 

For information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

LIST OF RULES IN FAC 2005–32 

Item Subject FAR case Analyst 

I .............. American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Buy American Requirements for Construction Material (Interim).2009–008 Murphy. 

II ............. American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Whistleblower Protections 

(Interim).

2009–012 Parnell. 

III ............ American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Publicizing Contract Actions (Interim).2009–010 Gary. 

IV ............ American Recovery and Reinvestment Act of 2009 (the Recovery Act)—Reporting Requirements 

(Interim).

2009–009 Woodson. 

V ............. American Recovery and Reinvestment Act of 2009 (the Recovery Act)—GAO/IG Access (Interim) .. 2009–011 Chambers. 

VI ............ GAO Access to Contractor Employees (Interim) .................................................................................. 2008–026 Neurauter. 

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 2005–32 amends the FAR as 

specified below: 

Item I—American Recovery and 

Reinvestment Act of 2009 (the Recovery 

Act)—Buy American Requirements for 

Construction Material (Interim) (FAR 

Case 2009–008) 

This interim rule implements the Buy 

American provision, section 1605, of the 

American Recovery and Reinvestment 

Act of 2009. It prohibits the use of funds 

appropriated for the Recovery Act for 

any project for the construction, 

alteration, maintenance, or repair of a 

public building or public work unless 

all of the iron, steel, and manufactured 

goods used in the project are produced 

in the United States. However, section 

1605 requires that the Buy American 

requirement be applied in a manner 

consistent with U.S. obligations under 

international agreements. Moreover, 

because Congress intended that least 

developed countries be excepted from 

section 1605, least developed countries 

can continue to be treated as designated 

countries. Section 1605 also provides 

for waivers under certain limited 

circumstances. 

Item II—American Recovery and 

Reinvestment Act of 2009 (the Recovery 

Act)—Whistleblower Protections 

(Interim) (FAR Case 2009–012) 

Subpart 3.9 of the Federal Acquisition 

Regulation (FAR) is revised to add 

section 3.907. Section 3.907 provides 

procedures for whistleblower 

protection, when using funds 

appropriated or otherwise provided by 

the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5). 

Section 3.907 provides that nonFederal employers are prohibited from 

discharging, demoting, or 

discriminating against employees as a 

reprisal for disclosing certain covered 

information to certain categories of 

Government officials. This section 

further provides definitions relevant to 

the statute; establishes time periods 

within which the Inspector General and 

the agency head must take action with 

regard to a complaint filed by a 

contractor employee; establishes 

procedures for access to investigative 

files of the Inspector General; and 

provides for remedies and enforcement 

authority. 

A new clause 52.203–15 is added to 

require contractors to post rights and 

remedies for whistleblower protections 

under Section 1553 of the American 

Recovery and Reinvestment Act. 

Item III—American Recovery and 

Reinvestment Act of 2009 (the Recovery 

Act)—Publicizing Contract Actions 

(Interim) (FAR Case 2009–010) 

This interim rule implements the 

Office of Management and Budget’s 

Guidance, M–09–10, ‘‘Initial 

Implementing Guidance for the 

American Recovery and Reinvestment 

Act of 2009,’’ dated February 18, 2009, 

section 6.2. Federal Acquisition 

Regulation (FAR) Part 4 requires the 

contracting officer to enter data in the 

Federal Procurement Data System on 

any action funded in whole or in part 

by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5), in accordance with the instructions 

at https://www.fpds.gov. Subpart 5.7 is 

added to direct the contracting officer to 

use the Governmentwide Point of Entry 

(https://www.fedbizopps.gov) to (1) 

Identify the action as funded by the 

Recovery Act; (2) post pre-award notices 

for orders exceeding $25,000 for 

‘‘informational purposes only;’’ (3) 

describe supplies and services 

(including construction) in a narrative 

that is clear and unambiguous to the 

general public; and (4) provide a 

rationale for awarding any action, 

including modifications and orders, that 

is not both fixed-price and competitive, 


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Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 14623 

and include the rationale for using other 

than a fixed-price and/or competitive 

approach. Parts 8, 13, and 16 are 

amended to reflect the new posting 

requirements for orders at Subpart 5.7. 

Item IV—American Recovery and 

Reinvestment Act of 2009 (The 

Recovery Act)—Reporting 

Requirements (Interim) (FAR Case 

2009–009) 

This interim rule implements section 

1512 of Division A of the American 

Recovery and Reinvestment Act of 2009, 

which requires contractors to report on 

their use of Recovery Act funds. The 

rule adds a new subpart 4.15, and a new 

clause, 52.204–11. Contracting officers 

must include the new clause in 

solicitations and contracts funded in 

whole or in part with Recovery Act 

funds, except classified solicitations and 

contracts. This clause applies to 

Commercial item contracts and 

Commercially-Available-Off-The-Shelf 

(COTS) item contracts as well as actions 

under the Simplified Acquisition 

Threshold. 

Contracting officers who wish to use 

Recovery Act funds on existing 

contracts should modify those contracts 

to add the clause. 

Reports from contractors for all work 

funded, in whole or in part, by the 

Recovery Act, and for which an invoice 

is submitted prior to June 30, 2009, are 

due no later than July 10, 2009. 

Thereafter, reports shall be submitted no 

later than the 10th day after the end of 

each calendar quarter. 

Item V—American Recovery and 

Reinvestment Act of 2009 (The 

Recovery Act)—GAO/IG Access 

(Interim) (FAR Case 2009–011) 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (Councils) are 

issuing an interim rule amending the 

Federal Acquisition Regulation (FAR) to 

implement Sections 902, 1514, and 1515 

of the American Recovery and 

Reinvestment Act of 2009. Collectively, 

these Sections provide for the audit and 

review of both contracts and 

subcontracts, and the ability to 

interview such contractor and 

subcontractor personnel under contracts 

containing Recovery Act funds. 

These Recovery Act provisions are 

implemented in new alternate clauses to 

52.212–5, ‘‘Contract Terms and 

Conditions Required to Implement 

Statutes orExecutive Orders— 

Commercial Items’’, 52–214–26, ‘‘Audit 

and Records—Sealed Bidding,’’ and 

52.215–2, ‘‘Audit and Records— 

Negotiation’’. For the Comptroller 

General these alternate clauses provide 

specific authority to audit contracts and 

subcontracts and to interview contractor 

and subcontractor employees under 

contracts using Recovery Act funds. 

Agency inspector generals receive the 

same authorities, with the exception of 

interviewing subcontractor employees. 

Item VI—GAO Access to Contractor 

Employees (Interim) (FAR Case 2008– 

026) 

This interim rule amends the Federal 

Acquisition Regulation (FAR) Parts 12 

and 52. Clauses 52.215–2, Audit and 

Records—Negotiation and 52.214–26, 

Audit and Records—Sealed Bidding are 

being modified to allow the Government 

Accountability Office to interview 

current contractor employees when 

conducting audits. The rule will not 

apply to the acquisition of commercial 

items; therefore, FAR 12.503 will be 

amended to add the exemption of this 

rule. This change implements Section 

871 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (NDAA) (Pub. L. 110–417). 

Dated: March 25, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

Federal Acquisition Circular 

Federal Acquisition Circular (FAC) 

2005–32 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 2005–32 is effective March 31, 

2009. 

Dated: March 24, 2009. 

Shay D. Assad, 

Director, Defense Procurement And 

Acquisition Policy. 

Dated: March 24, 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 24, 2009. 

William P. McNally, 

Assistant Administrator for Procurement, 

National Aeronautics and Space 

Administration. 

[FR Doc. E9–7027 Filed 3–30–09; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 1, 5, 25, and 52 

[FAC 2005–32; FAR Case 2009–008; 

Item I; Docket 2009–0008, Sequence 1] 

RIN 9000–AL22 

Federal Acquisition Regulation; FAR 

Case 2009–008, American Recovery 

and Reinvestment Act of 2009 (the 

Recovery Act)—Buy American 

Requirements for Construction 

Material 

AGENCY: 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 the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–5) (Recovery 

Act) with respect to the Buy American 

provision, section 1605 in Division A. 

This rule does not cover procurements 

funded with Federal financial assistance 

such as Federal grants. Additional 

guidance will be provided by the Office 

of Management and Budget with respect 

to the application of section 1605 to 

procurements funded with Federal 

financial assistance. 

DATES: Effective Date: March 31, 2009. 

Applicability Date: The rule applies to 

solicitations issued and contracts 

awarded on or after the effective date of 

this rule. Contracting officers shall 

modify, on a bilateral basis, in 

accordance with FAR 1.108(d)(3), 

existing contracts to include the FAR 

clauses for future orders, if Recovery 

Act funds will be used. In the event that 

a contractor refuses to accept such a 

modification, the contractor will not be 

eligible for receipt of Recovery Act 

funds. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before June 1, 

2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–32, FAR case 

2009–008, by any of the following 

methods: 


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