Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 14651 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 3. Amend section 52.214–26 by 

revising the date of the clause and 

paragraph (c) to read as follows: 

52.214–26 Audit and Records—Sealed 

Bidding. 

* * * * * 

Audit and Records-Sealed Bidding (MAR 

2009) 

* * * * * 

(c) Comptroller General. In the case of 

pricing any modification, the Comptroller 

General of the United States, or an authorized 

representative, shall have the same rights as 

specified in paragraph (b) of this clause and 

also the right to interview any current 

employee regarding such transactions. 

* * * * * 

(End of clause) 

■ 4. Amend section 52.215–2 by 

revising the date of the clause and 

paragraph (d)(1) to read as follows: 

52.215–2 Audit and Records—Negotiation. 

* * * * * 

Audit and Records—Negotiation (MAR 

2009) 

* * * * * 

(d) Comptroller General. (1) The 

Comptroller General of the United States, or 

an authorized representative, shall have 

access to and the right to examine any of the 

Contractor’s directly pertinent records 

involving transactions related to this contract 

or a subcontract hereunder and to interview 

any current employee regarding such 

transactions. 

* * * * * 

(End of clause) 

[FR Doc. E9–7030 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 Chapter 1 

[Docket FAR–2009–0002, Sequence 3] 

Federal Acquisition Regulation; 

Federal Acquisition Circular 2005–32; 

Small Entity Compliance Guide 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Small Entity Compliance Guide. 

SUMMARY: This document is issued 

under the joint authority of the 

Secretary of Defense, the Administrator 

of General Services and the 

Administrator of the National 

Aeronautics and Space Administration. 

This Small Entity Compliance Guide has 

been prepared in accordance with 

Section 212 of the Small Business 

Regulatory Enforcement Fairness Act of 

1996. It consists of a summary of rules 

appearing in Federal Acquisition 

Circular (FAC) 2005–32 which amend 

the FAR. An asterisk (*) next to a rule 

indicates that a regulatory flexibility 

analysis has been prepared. Interested 

parties may obtain further information 

regarding these rules by referring to FAC 

2005–32 which precedes this document. 

These documents are also available via 

the Internet at http:// 

www.regulations.gov. 

FOR FURTHER INFORMATION CONTACT: 

Hada Flowers, FAR Secretariat, (202) 

208–7282. For clarification of content, 

contact the analyst whose name appears 

in the table below. 

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 (theRecovery Act)—Publicizing Contract 

Actions (Interim).

2009–010 Gary. 

IV* ................. American Recovery and Reinvestment Act of 2009 (theRecovery 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 


sroberts on PROD1PC70 with RULES
14652 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 

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, 

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 or Executive 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. 

[FR Doc. E9–7024 Filed 3–30–09; 8:45 am] 

BILLING CODE 6820–EP–P 


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