Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 14639 

8.404 Use of Federal Supply Schedules. 

(a) General.* * * Therefore, when 

establishing a BPA (as authorized by 

13.303–2(c)(3)), or placing orders under 

Federal Supply Schedule contracts 

using the procedures of 8.405, ordering 

activities shall not seek competition 

outside of the Federal Supply Schedules 

or synopsize the requirement; but see 

paragraph (e) of this section for orders 

(including orders issued under BPAs) 

funded in whole or in part by the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–5). 

* * * * * 

(e) Publicizing contract actions 

funded in whole or in part by the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–5): 

(1) Notices of proposed MAS orders 

(including orders issued under BPAs) 

that are for ‘‘informational purposes 

only’’ exceeding $25,000 shall follow 

the procedures in 5.704 for posting 

orders. 

(2) Award notices for MAS orders 

(including orders issued under BPAs) 

shall follow the procedures in 5.705. 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 5. Amend section 13.105 by adding 

paragraph (d) to read as follows: 

13.105 Synopsis and posting 

requirements. 

* * * * * 

(d) When publicizing contract actions 

funded in whole or in part by the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–5): 

(1) Notices of proposed contract 

actions shall follow the procedures in 

5.704 for posting orders. 

(2) Award notices shall follow the 

procedures in 5.705. 

PART 16—TYPES OF CONTRACTS 

■ 6. Amend section 16.505 by revising 

paragraph (a)(1); and adding paragraph 

(a)(10) to read as follows: 

16.505 Ordering. 

(a) * * * 

(1) In general, the contracting officer 

does not synopsize orders under 

indefinite-delivery contracts; but see 

16.505(a)(10) for orders funded in whole 

or in part by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5). 

* * * * * 

(10) Publicize orders funded in whole 

or in part by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5) as follows: 

(i) Notices of proposed orders shall 

follow the procedures in 5.704 for 

posting orders. 

(ii) Award notices for orders shall 

follow the procedures in 5.705. 

* * * * * 

[FR Doc. E9–7019 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 4 and 52 

[FAC 2005–32; FAR Case 2009–009; Item 

IV; Docket 2009–0011, Sequence 1] 

RIN 9000–AL21 

Federal Acquisition Regulation; FAR 

Case 2009–009, American Recovery 

and Reinvestment Act of 2009 (the 

Recovery Act)—Reporting 

Requirements 

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 (the 

Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement 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. 

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 

clause 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 

2009–009, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–009’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2009–009. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2009– 

009’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, FAR Secretariat (VPR), 

1800 F Street, NW., Room 4041, Attn: 

Hada Flowers, Washington, DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–32, FAR case 

2009–009, 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. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. Please cite FAC 2005–32, FAR 

case 2009–009. For information 

pertaining to status or publication 

schedules, contact the FAR Secretariat 

at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On February 17, 2009, the President 

signed Public Law 111–5, the American 

Recovery and Reinvestment Act of 2009 

(the ‘‘Recovery Act’’), including a 

number of provisions to be 

implemented in Federal Government 

contracts. This interim rule implements 

section 1512, which is also known as 

the ‘‘Jobs Accountability Act.’’ 

Subsection (c) of section 1512 requires 

contractors that receive awards (or 

modifications to existing awards) 

funded, in whole or in part, by the 

Recovery Act to report quarterly on the 

use of the funds. 

This FAR case 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. Commercial 

item contracts and Commercially 

Available Off-The-Shelf (COTS) item 

contracts are covered, as well as actions 

under the simplified acquisition 

threshold. 

Contracting officers who obligate 

Recovery Act funds on existing 

contracts or orders must modify those 

contracts to add the new clause. 


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Contracting officers shall ensure that the 

contractor complies with the reporting 

requirements of the new clause. 

Contracting officers are not responsible 

for validating report content, only that 

a report was submitted as required. The 

online reporting tool will allow the 

contracting officer to monitor this as a 

matter of contract performance. 

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. Contractors will 

report the information, using the online 

reporting tool available at http:// 

www.FederalReporting.gov, using 

instructions at that Web site. The online 

reporting tool is being developed for use 

by the July 10th timeframe. The data 

elements to be reported are outlined in 

the clause 52.204–11, in paragraph (d). 

The Government intends to prepopulate as many data elements as 

possible to reduce the burden on 

contractors and first-tier subcontractors 

by using information available in other 

Government systems. For instance, the 

Government is considering prepopulating congressional districts based 

on nine-digit zip codes, funding agency, 

North American Industry Classification 

System (NAICS) code, and parent 

DUNS. 

While Section 1512(c)(4) requires 

reporting on all Federal Financial 

Accountability and Transparency Act 

(FFATA) data elements, including the 

compensation information, it limits the 

reporting to first-tier subcontractors that 

meet the applicability requirements. 

The FAR clause requires this 

compensation disclosure for prime 

contractors, because to exclude prime 

contractors while requiring disclosure 

for first-tier subcontractors would be 

unsupportable given the transparency 

goals of both FFATA and the Recovery 

Act. 

B. Determinations 

The Councils provide the following 

determinations with respect to the rule’s 

applicability to contracts and 

subcontracts in amounts not greater 

than the simplified acquisition 

threshold, commercial items, and 

commercially available off-the-shelf 

(COTS) items. 

1. Applicability to contracts at or 

below the simplified acquisition 

threshold. Section 4101 of Public Law 

103–355, the Federal Acquisition 

Streamlining Act (FASA) (41 U.S.C. 

429), governs the applicability of laws to 

contracts or subcontracts in amounts not 

greater than the simplified acquisition 

threshold. It is intended to limit the 

applicability of laws to them. FASA 

provides that if a provision of law 

contains criminal or civil penalties, or if 

the Federal Acquisition Regulatory 

Council makes a written determination 

that it is not in the best interest of the 

Federal Government to exempt contracts 

or subcontracts at or below the 

simplified acquisition threshold, the 

law will apply to them. Therefore, given 

section 1512 of the Recovery Act which 

requires that prime contractors report 

information on their use of Recovery 

funds, and the initial implementing 

guidance for the Recovery Act issued on 

February 18, 2009 by the Director of the 

Office of Management and Budget 

(OMB) committing to an unprecedented 

level of transparency and accountability 

for taxpayer dollars, the FAR Council 

has determined that it is in the best 

interest of the Federal Government to 

apply this rule to contracts or 

subcontracts at or below the simplified 

acquisition threshold, as defined at 

2.101. 

2. Applicability to Commercial Item 

contracts. Section 8003 of Public Law 

103–355, the Federal Acquisition 

Streamlining Act (FASA) (41 U.S.C. 

430), governs the applicability of laws to 

commercial items, and is intended to 

limit the applicability of laws to 

commercial items. FASA provides that 

if a provision of law contains criminal 

or civil penalties, or if the Federal 

Acquisition Regulatory Council makes a 

written determination that it is not in 

the best interest of the Federal 

Government to exempt commercial item 

contracts, the provision of law will 

apply to contracts for commercial items. 

The same applies for subcontracts for 

commercial items. 

Therefore, given section 1512, of the 

Recovery Act, which requires that prime 

contractors report information on their 

use of recovery funds, and the initial 

implementing guidance for the Recovery 

Act issued on February 18, 2009 by the 

Director of the Office of Management 

and Budget (OMB) committing to an 

unprecedented level of transparency 

and accountability for taxpayer dollars, 

the FAR Council has determined that it 

is in the best interest of the Federal 

Government to apply the rule to 

commercial items, as defined at 2.101, 

both at the prime and subcontract 

levels. 

3. Applicability to Commercially 

Available Off-The-Shelf (COTS) item 

contracts. Section 4203 of Public Law 

104–106, the Clinger-Cohen Act of 1996 

(41 U.S.C. 431), governs the 

applicability of laws to the procurement 

of commercially available off-the-shelf 

(COTS) items, and is intended to limit 

the applicability of laws to them. 

Clinger-Cohen provides that if a 

provision of law contains criminal or 

civil penalties, or if the Administrator 

for Federal Procurement Policy makes a 

written determination that it is not in 

the best interest of the Federal 

Government to exempt COTS item 

contracts, the provision of law will 

apply. The same applies for 

subcontracts for COTS items. 

Therefore, given section 1512, of the 

Recovery Act which requires that prime 

contractors report information on their 

use of recovery funds, and the initial 

implementing guidance for the Recovery 

Act issued on February 18, 2009 by the 

Director of the Office of Management 

and Budget (OMB) committing to an 

unprecedented level of transparency 

and accountability for taxpayer dollars, 

the Administrator, Office of the Federal 

Procurement Policy, has determined 

that it is in the best interest of the 

Federal Government to apply the rule to 

Commercially Available Off-The-Shelf 

(COTS) item contracts and subcontracts, 

as defined at FAR 2.101. 

C. Request for Public Comments 

The Councils ask for public comments 

on the interim rule, and the following 

additional issues: 

1. The statute requires a description of 

the work (implemented at 52.204– 

11(d)(5)). Should the Government 

provide a list of broad categories of 

work under the Recovery Act from 

which the contractor would select and, 

if so, what should these be? 

2. The definitions of ‘‘jobs created’’ 

and ‘‘jobs retained’’ are currently based 

on a conversion of part-time or 

temporary jobs into ‘‘full-time 

equivalent’’ (FTE) jobs. In order to do 

such a conversion, these part-time hours 

must be divided by the number of hours 

in a full-time schedule. This interim 

rule leaves the definition of full-time 

schedule to each individual company’s 

discretion based on its existing 

practices. With respect to the 

methodology described in the interim 

rule for estimating jobs created or 

retained: 

—Is the use of FTE and the description 

provided consistent with existing 

business practices and systems? 

—Is a standardized methodology based 

on FTE necessary or do contractors 

have existing practices that 

adequately address other than fulltime jobs to avoid inflating estimated 

numbers for jobs created and jobs 

retained? Should the Government 

allow contractors to use any method 

consistent with their existing practice 

as long as the contractor provides an 


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explanation of the methodology, 

including a description of how parttime and temporary employees are 

addressed? 

—If the Government were to standardize 

the number of hours in a ‘‘full-time 

schedule,’’ would this increase the 

burden of reporting on jobs created or 

retained? 

3. If the Government were to require 

companies to separately invoice for all 

supplies or services funded by the 

Recovery Act, what challenges would 

this pose? Are there any benefits? 

4. Is there information not 

customarily provided that would make 

it easier for companies to segregate their 

invoices to separately identify items 

funded by the Recovery Act? 

5. Are there challenges to obtaining 

the information required from first-tier 

subcontractors? If so, how could the rule 

be changed to ease the submission of 

this information from both a prime 

contractor and subcontractor 

perspective? 

6. Does the definition of ‘‘Total 

compensation’’ used in the clause 

provide sufficient clarity? If not, what 

specifically should be clarified? 

7. Would it be useful to provide an 

Alternate clause that would allow 

agencies to identify meaningful distinct 

‘‘projects’’ within the contract for the 

purpose of requiring the contractor to 

report employment impact and progress 

by ‘‘project’’ rather than for the contract 

as a whole? For example, if the contract 

called for work in distinct geographic 

areas, the report might provide more 

meaningful information if the contractor 

were to report employment impact and 

progress separately by geographic area. 

This would not require individual 

reports but rather separate sections 

within the quarterly report. 

8. Currently, this rule requires 

contractors to report on invoiced 

amounts because the Government 

assumed that it would be extremely 

difficult for the contractor employee 

responsible for report submission, to 

report on ‘‘receipt of funds.’’ Would a 

contractor be able to separately identify 

when Recovery Act funds were received 

and be able to identify the payment to 

particular deliverables? How difficult 

would this be to track and report on a 

quarterly basis? 

This is a significant regulatory action 

and, therefore, was subject to Office of 

Management and Budget (OMB) 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. 

D. Regulatory Flexibility Act 

This interim rule may 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 it requires contractors to report 

on their use of Recovery Act funds. An 

Initial Regulatory Flexibility Analysis 

has been prepared and the results of the 

analysis show that the direct cost of this 

rule on an average cost-per-contractor 

basis does not appear to rise to the level 

of being economically significant (i.e. 

$100,000,000); however, the Councils 

request comments on this finding. 

Therefore, the Councils have prepared 

an Initial Regulatory Flexibility 

Analysis (IRFA) for public comment 

that is summarized as follows: 

This Initial Regulatory Flexibility Analysis 

has been prepared consistent with 5 U.S.C. 

603. 

1. Reasons for the action. 

This action implements section 1512 of the 

American Recovery and Reinvestment Act of 

2009 (Recovery Act), which requires 

contractors to report quarterly on their use of 

Recovery Act funds. 

2. Objectives of, and legal basis for, the 

rule. 

The objective of the Recovery Act is to 

create jobs, restore economic growth, and 

strengthen America’s middle class through 

measures that modernize the nation’s 

infrastructure, enhance America’s energy 

independence, expand educational 

opportunities, preserve and improve 

affordable health care, provide tax relief, 

protect those in greatest need, and provide 

for other purposes. This rule implements 

section 1512 of the Recovery Act which 

requires contractors, as a condition of receipt 

of funds, to report quarterly on their use of 

those funds. These reports will be made 

available to the public. The Recovery Act is 

designed to provide unprecedented 

transparency to the American taxpayer. 

3. Description and estimate of the number 

of small entities to which the rule will apply. 

The rule imposes a clause in any award 

document funded by the Recovery Act, 

requiring the contractor to publicly disclose 

information related to the use of funds and 

specific information about first-tier 

subcontract awards. This clause requires 

contractors to report on use of Recovery Act 

funds. The clause imposes a public reporting 

burden on prime contractors and, in a more 

limited way, on their first-tier subcontractors. 

According to the Federal Procurement Data 

System (FPDS), there are 129,331 active and 

unique prime Federal contractors. The 

estimate for the number of active and unique 

prime federal contractors that will participate 

in awards funded by the Recovery Act is 

20,013, of which 4,003 or 20 percent are 

estimated to be small businesses. It is also 

noted that this is 20 percent of prime 

contractors, which should not be confused 

with the 23 percent small business 

contracting goal which is based on dollars 

and that continues to apply to both Recovery 

Act spending and agencies’ ongoing 

procurement spending. 

The number of first-tier subcontractors 

estimated to participate in Recovery Act 

awards is 60,039 or three times the number 

of prime contractors. Of these 60,039 

Recovery Act first-tier subcontractors, it is 

estimated that 25 percent, or 15,010, will be 

small businesses. 

Based on the above, the estimated total 

number of small businesses, prime and 

subcontractors, to which this rule will apply 

is 19,013 and the estimated total number of 

other than small businesses to which this 

rule will apply is 61,039. 

4. Description of projected reporting, 

recordkeeping, and other compliance 

requirements of the rule, including an 

estimate of the classes of small entities which 

will be subject to the requirement and the 

type of professional skills necessary for 

preparation of the report or record. 

The rule requires Federal prime 

contractors, both small and other than small 

businesses, to report quarterly on their use of 

funds received under the Recovery Act. The 

rule applies to all Federal contractors 

regardless of size or business ownership. 

Such a report would probably be prepared by 

a company contract administrator or contract 

manager or a company subcontract 

administrator. The information required in 

the report is primarily information that 

companies would maintain for their own 

business purposes including, but not limited 

to, contract or other award number, the dollar 

amount of invoices, the supplies or services 

delivered, a broad assessment of progress 

towards completion, the estimated number of 

new jobs created or retained resulting from 

the award, and first-tier subcontract 

information (or aggregate information if the 

subcontract is less than $25,000, or the 

subcontractor is an individual or had gross 

income in the previous tax year of less than 

$300,000). While most of the data elements 

impose only one-time burden collection, 

some will require quarterly updates. 

There are three data elements required in 

the report that will likely require some 

additional effort: (1) Estimating the 

cumulative number of jobs created each 

calendar quarter, (2) estimating the 

cumulative number of jobs retained each 

calendar quarter, and (3) providing the name 

and total compensation of each of the five 

most highly compensated officers of the 

contractor for the calendar year in which the 

contract is awarded, which applies at both 

the prime and first-tier subcontract level. The 

rule also requires the prime contractor to 

report certain information, required by the 

Federal Funding Accountability and 

Transparency Act of 2006 (FFATA), about 

first-tier subcontracts (though all awards 

under $25,000 will be aggregated, eliminating 

the need to report transaction-level data). The 

prime contractor will have most of this 

information in the subcontract award 

document, such as the name of the 

subcontractor, award number, and date of 

award. However, the prime contractor will 

have to obtain four of the elements directly 

from the first-tier subcontractor: (1) The 

unique identifier (DUNS Number) ‘‘for 

awards of $25,000 or more’’ as well as for the 


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subcontractor’s parent company, if the 

subcontractor has a parent company, (2) 

subcontractor’s physical address, (3) 

subcontract primary performance location, 

and (4) the compensation information 

described earlier as required by FFATA and 

reflected in section 1512 of the Recovery Act. 

With respect to the DUNS Number, we 

anticipate that most first-tier subcontractors 

have a DUNS Number as it is a requirement 

for receipt of any Government contract. 

However, a company that never received nor 

anticipated a Government contract might not 

have a DUNS number and will have to 

register for one with Dunn and Bradstreet. 

The registration process is not burdensome, 

can be done online or by phone, and requires 

only information any company would have 

on hand for business purposes. First-tier 

subcontractors are not required to register in 

the Central Contractor Registration (CCR) as 

a consequence of this rule. 

With respect to compensation information, 

this requirement results from FFATA and 

will not apply if the public has access to 

information about compensation of the senior 

executives through periodic reports filed 

under section 13(a) or 15(d) of the Securities 

Exchange Act of 1934 (15 U.S.C. 78m(a), 

78o(d)) or section 6104 of the Internal 

Revenue Code of 1986. Otherwise, each 

prime contractor and first-tier subcontractors 

will have to disclose the compensation 

information if it received (1) 80 percent or 

more of annual gross revenues in Federal 

awards; and (2) $25M or more in annual 

gross revenue from Federal awards. Because 

this requirement of FFATA became law on 

December 26, 2007, we anticipate that those 

companies to which it applies are aware of 

the requirement and have been preparing to 

provide this information. 

5. Relevant Federal rules which may 

duplicate, overlap, or conflict with the rule. 

The rule includes the reporting 

requirements stipulated by FFATA in FAR 

Case 2008–039 FFATA flow-down and 2008– 

037 Financial Disclosure. 

These cases are in process and as they are 

finalized, they will be amended to ensure 

that they do not duplicate, overlap, or 

conflict with the requirements of this interim 

rule. 

6. Description of any significant 

alternatives to the rule which accomplish the 

stated objectives of applicable statutes and 

which minimize any significant economic 

impact of the rule on small entities. 

The rule requires Federal prime contractors 

to respond to all of the reporting 

requirements, eliminating some of the 

reporting burden on first-tier subcontractors 

despite the fact that they will have to provide 

some information to the prime contractor. 

Also, all of the reporting elements applied to 

first-tier subcontractors, a significant 

percentage of which will be small businesses, 

are one-time collection burdens. The 

Government believes that the rule will 

further minimize the reporting burden on 

Government contractors, including all small 

businesses, as well as other businesses, by 

using existing Federal acquisition/ 

registration systems to pre-populate certain 

data elements. 

The FAR Secretariat will be 

submitting a copy of the IRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. Interested 

parties may obtain a copy from the FAR 

Secretariat. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 4 and 

52 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 2005–32, FAR 

case 2009–009), in all correspondence. 

E. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 104–13) applies because the interim 

rule contains information collection 

requirements. Accordingly, the FAR 

Secretariat forwarded an emergency 

information collection request for 

approval of new information collection 

requirements to the Office of 

Management and Budget (OMB) under 

44 U.S.C. Chapter 35, et seq. OMB 

approved the new information 

collection requirements as follows: 

1. OMB Control No. 9000–0166—One 

Time Reporting Requirements for Prime 

Contractors. 

2. OMB Control No. 9000–0167—One 

Time Reporting for First-tier 

Subcontractors. 

3. OMB Control No. 9000–0168—One 

Time Reporting, Compensation 

Requirements. 

4. OMB Control No. 9000–0169— 

Quarterly Reporting for Prime 

Contractors. 

Comments on the interim rule as well 

as the collection will be considered in 

the revisions to both the rule and the 

collection. 

Any award funded by the Recovery 

Act will contain the clause at 52.204– 

11. This clause requires contractors to 

report on use of Recovery Act funds. 

The clause imposes public reporting 

burden on prime contractors and, in a 

more limited way, on their first-tier 

subcontractors. According to the Federal 

Procurement Data System (FPDS), there 

are 129,331 active and unique prime 

Federal contractors as of February 2009. 

The estimate for the number of active 

and unique prime Federal contractors 

that will participate in awards funded 

by the Recovery Act is 20,013. This is 

based on using a factor of .16 of 129,331, 

derived by dividing 129,331 by $517B 

in procurement obligations for fiscal 

year 2008 or by dividing estimated 

Recovery Act dollars for contracts 

($80B: Government’s best estimate of 

Recovery Act dollars to be obligated by 

contracts is between $60 and $80 

billion; using $80 billion for calculation 

purposes) by $517B. Of the estimated 

20,013 Recovery Act prime contractors, 

it is estimated that 20 percent, or 4,003, 

will be small businesses. It should be 

noted that this is 20 percent of prime 

contractors; this should not be confused 

with the 23 percent small business 

contracting goal which is based on 

dollars and that continues to apply to 

both Recovery Act spending and 

agencies’ ongoing procurement 

spending. 

The number of first-tier 

subcontractors estimated to participate 

in Recovery Act awards is 60,039. This 

was derived by estimating three first-tier 

subcontractors for each prime 

contractor. Of these 60,039 Recovery 

Act first-tier subcontractors, it is 

estimated that 25 percent, or 15,010, 

will be small businesses. 

Based on the above, the estimated 

total number of small businesses, prime 

and subcontractors, to which this rule 

will apply is 19,013 and the estimated 

total number of other than small 

businesses to which this rule will apply 

is 61,039. 

Though Section 1512 requires that the 

reports be completed by the prime 

contractor for all data elements, for 

practical purposes, the prime contractor 

will have to obtain certain information 

from their first-tier subcontractors, 

hence the flow-down requirements of 

paragraph (d)(10) of the clause. 

Additionally, the information required 

on the prime contractor award varies 

from that required for the first-tier 

subcontract awards. For instance, the 

elements at paragraphs (d)(1) through 

(9) are collection burdens associated 

with the prime contract award while the 

elements in (d)(10)(i) through (ix) are 

associated with first-tier subcontracts. 

Finally, the elements required by 

Section 1512 of the Recovery Act are a 

combination of those that will be 

updated in each quarterly report, such 

as jobs created and retained and 

progress towards completion of the 

overall purpose and expected outcomes 

or results of the contract and those that 

are one-time collection burdens, such as 

award number and date and all of the 

reporting requirements for first-tier 

subcontracts. Therefore, the following 

analysis separately estimates the burden 

associated with the one-time reporting 

elements and those that are updated 

quarterly. The parenthetical reference 

after the description of each reporting 

element refers to the FAR clause. The 

hours estimated per response include 

the time for reviewing instructions, 

searching existing data sources, 

gathering the data, and completing the 

collection of information. The estimated 

total annual burden associated with 

reporting requirements of FAR 52.204– 


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11 is $31,725,468, based on the 

following: 

One-Time Reporting Elements 

1. OMB Control No. 9000–0166—One 

Time Reporting Requirements for Prime 

Contractors. One-time reporting 

elements for which the burden is 

imposed on the prime contractor 

include the following: 

a. The award number for both its 

Government contract and first-tier 

subcontracts ((d)(1) and (d)(10)(viii)); 

b. Program or project title, if any, for 

its Government contract ((d)(4)); 

c. A description of the overall purpose 

and expected outcomes or results of the 

contract and first-tier subcontracts, 

including significant deliverables and, if 

appropriate, units of measure ((d)(5) and 

(d)(10)(vii)); 

d. Name of the first-tier subcontractor 

((d)(10)(ii)); 

e. Amount of the first-tier subcontract 

award ((d)(10)(iii)); 

f. Date of the first-tier subcontract 

award ((d)(10)(iv)); 

g. Applicable North American 

Industry Classification System (NAICS) 

code ((d)(10)(v)); and 

h. Funding agency ((d)(10)(vi)). 

We estimate the total annual public 

cost burden for these elements to be 

$850,544 based on the following: 

Respondents: 20,013. 

Responses per respondent: 1.25 

(reflects estimate that 25 percent of 

contractors will have more than one 

Recovery Act funded award on which to 

report). 

Total annual responses: 25,016. 

Preparation hours per response: .5. 

Total response burden hours: 12,508. 

Average hourly wages ($50.00+36.35 

percent overhead): 68.00. 

Estimated cost to the public: 

$850,544. 

2. OMB Control No. 9000–0168—One 

Time Reporting, Compensation 

Requirements. A one-time reporting 

element for which the burden is 

imposed on certain prime contractors 

and first-tier subcontractors to publicly 

disclose the names and total 

compensation of each of the contractor’s 

or first-tier subcontractor’s five most 

highly compensated officers, for the 

calendar year in which the award was 

made ((d)(8) and (d)(10)(xi)) (see 

applicability requirements in the clause 

at (d)(8) and (d)(10)). 

While Section 1512(c)(4) of the 

Recovery Act requires reporting on all 

FFATA data elements, including the 

compensation information, it limits the 

prime’s reporting responsibility to firsttier subcontractors that meet the 

applicability requirements. The FAR 

clause requires this compensation 

disclosure for prime contractors as well 

because to exclude prime contractors 

while requiring disclosure for first-tier 

subcontractors would be unsupportable 

given the transparency goals of both 

FFATA and the Recovery Act. 

There are likely to be some prime 

contractors that already provide public 

access to the compensation of senior 

executives through periodic reports 

filed under section 13(a) or 15(d) of the 

Securities Exchange Act of 1934 or 

section 6104 of the Internal Revenue 

Code of 1986. For purposes of this 

analysis, the Government estimates that 

5 percent of prime contractors already 

provide such public access. There are 

also likely to be some first-tier 

subcontractors that do not meet either of 

the revenue thresholds for applicability. 

For purposes of this analysis, the 

Government estimates that 5 percent of 

first-tier subcontractors will not have to 

disclose compensation information 

because they do not meet the revenue 

thresholds. 

We estimate the total annual public 

cost burden for these elements to be 

$19,392,444, based on the following: 

Respondents: 76,049 (20,013 primes-5 

percent=19,012+60,039 first-tier 

subcontractors-5 percent=57,037). 

Responses per respondent: 1.25 

(reflects estimate that 25 percent of all 

respondents will have more than one 

Recovery Act funded award on which to 

report). 

Total annual responses: 95,061. 

Preparation hours per response: 3. 

Total response burden hours: 285,183. 

Average hourly wages ($50.00+36.35 

percent overhead): $68.00. 

Estimated cost to the public: 

$19,392,444. 

3. OMB Control No. 9000–0167—One 

Time Reporting for First-tier 

Subcontractors. 

One-time reporting elements for 

which the burden is imposed only on 

the first-tier subcontractor include the 

following: 

a. Unique identifier (DUNS Number) 

for the subcontractor receiving the 

award and for the subcontractor’s parent 

company, if the subcontractor has a 

parent company ((d)(10)(i)); 

b. Subcontractor’s physical address 

including street address, city, state, and 

country. Also include the nine-digit zip 

code and congressional district if 

applicable((d)(10)(ix)); and 

c. Subcontract primary performance 

location including street address, city, 

state, and country. Also include the 

nine-digit zip code and congressional 

district if applicable ((d)(10)(x)). 

The Government expects that most 

first-tier subcontractors will have a 

DUNS number. However, if a company 

has never received nor anticipated a 

Government contract, it would be 

required to register for a DUNS number 

which is not an onerous process and can 

be done online or by phone using 

information a company would have on 

hand for business purposes. 

We estimate the total annual public 

cost burden for these elements to be 

$1,275,816, based on the following: 

Respondents: 60,039. 

Responses per respondent: 1.25 

(reflects estimate that 25 percent of firsttier subcontractors will have more than 

one Recovery Act funded award on 

which to report). 

Total annual responses: 75,049. 

Preparation hours per response: .25. 

Total response burden hours: 18,762. 

Average hourly wages ($50.00+36.35 

percent overhead):$68.00. 

Estimated cost to the public: 

$1,275,816. 

4. OMB Control No. 9000–0169— 

Quarterly Reporting for Prime 

Contractors. Elements updated quarterly 

for which the burden is imposed on the 

prime contractor include the following: 

a. The amount of Recovery Act funds 

invoiced by the contractor, cumulative 

since the beginning of the contract 

((d)(2)); 

b. A list of all significant services 

performed or supplies delivered, 

including construction, for which the 

contractor has invoiced ((d)(3)); 

c. An assessment of the contractor’s 

progress towards the completion of the 

overall purpose and expected outcomes 

or results of the contract (i.e., not 

started, less than 50 percent completed, 

completed 50 percent or more, or fully 

completed). This covers the contract (or 

portion thereof) funded by the Recovery 

Act ((d)(6)); 

d. A narrative description of the 

employment impact of the Recovery Act 

funded work ((d)(7)(i) through (ii)); and 

e. For subcontracts valued at less than 

$25,000 or any subcontracts awarded to 

an individual, or subcontracts awarded 

to a subcontractor that in the previous 

tax year had gross income under 

$300,000, the contractor shall only 

report the aggregate number of such first 

tier subcontracts awarded in the quarter 

and their aggregate total dollar amount 

((d)(9)). 

We estimate the total annual public 

cost burden for these elements to be 

$10,206,664, based on the following: 

Respondents: 20,013. 

Responses per respondent: 1.25 

(reflects 4 reports multiplied by a factor 

of 1.25 to reflect Government’s estimate 

that 25 percent of contractors will have 

more than one Recovery Act funded 

award on which to report). 

Total annual responses: 100,065. 


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Preparation hours per response: 1.5. 

Total response burden hours: 150,098. 

Average hourly wages ($50.00+36.35 

percent overhead): $68.00. 

Estimated cost to the public: 

$10,206,664. 

F. Request for Comments Regarding 

Paperwork Burden 

Submit comments, including 

suggestions for reducing this burden, 

not later than June 1, 2009 to: FAR Desk 

Officer, OMB, Room 10102, NEOB, 

Washington, DC 20503, and a copy to 

the General Services Administration, 

FAR Secretariat (VPR), 1800 F Street, 

NW., Room 4041, Washington, DC 

20405. Please cite the applicable OMB 

Control No.: 9000–0166; 9000–0167; 

9000–0168; or 9000–0169, and FAR 

Case 2009–009, American Recovery and 

Reinvestment Act—Reporting 

Requirements, in all correspondence. 

Public comments are particularly 

invited on: whether this collection of 

information is necessary for the proper 

performance of functions of the FAR, 

and will have practical utility; whether 

our estimate of the public burden of this 

collection of information is accurate, 

and based on valid assumptions and 

methodology; ways to enhance the 

quality, utility, and clarity of the 

information to be collected; and ways in 

which we can minimize the burden of 

the collection of information on those 

who are to respond, through the use of 

appropriate technological collection 

techniques or other forms of information 

technology. 

Requester may obtain a copy of the 

justification from the General Services 

Administration, FAR Secretariat (VPR), 

Room 4041, Washington, DC 20405, 

telephone (202) 501–4755. Please cite 

the applicable OMB Control No.: 9000– 

0166, 9000–0167; 9000–0168; or 9000– 

0169, and FAR Case 2009–009, 

American Recovery and Reinvestment 

Act—Reporting Requirements, in all 

correspondence. 

The Paperwork Reduction Act applies 

to this interim rule. 

G. 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 the 

American Recovery and Reinvestment 

Act of 2009 became effective on 

enactment on February 17, 2009, and 

agencies are ready to award contracts 

using funds appropriated by the Act. 

Without a FAR clause, agencies will be 

forced to develop their own clause, 

which would (1) significantly increase 

the costs for Government as well as 

contractors who may have to comply 

with varied clauses and reporting 

mechanisms, (2) increase the risk of 

non-compliance, and (3) degrade 

transparency and public understanding. 

Waiting for public comment prior to 

issuing a clause will require resourceintensive and costly post-award bilateral 

negotiations and may hinder recovery. 

However, pursuant to Public Law 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 Parts 4 and 

52 

Government procurement. 

Dated: March 25, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 4 and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 4 and 52 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). 

PART 4—ADMINISTRATIVE MATTERS 

■ 2. Add subpart 4.15 to read as follows: 

Subpart 4.15–American Recovery and 

Reinvestment Act—Reporting 

Requirements 

Sec. 

4.1500 Scope of subpart. 

4.1501 Procedures. 

4.1502 Contract clause. 

4.1500 Scope of subpart. 

This subpart implements section 

1512(c) of Division A of the American 

Recovery and Reinvestment Act of 2009 

(Pub. L. 111–5) (Recovery Act), which 

requires, as a condition of receipt of 

funds, quarterly reporting on the use of 

funds. The subpart also implements the 

data elements of the Federal Funding 

Accountability and Transparency Act of 

2006, as amended (Pub. L. 109–282). 

Contractors that receive awards (or 

modifications to existing awards) 

funded, in whole or in part by the 

Recovery Act, must report information 

including, but not limited to— 

(a) The dollar amount of contractor 

invoices; 

(b) The supplies delivered and 

services performed; 

(c) An assessment of the completion 

status of the work; 

(d) An estimate of the number of jobs 

created and the number of jobs retained 

as a result of the Recovery Act funds; 

(e) Names and total compensation of 

each of the five most highly 

compensated officers for the calendar 

year in which the contract is awarded; 

and 

(f) Specific information on first-tier 

subcontractors. 

4.1501 Procedures. 

(a) In any contract action funded in 

whole or in part by the Recovery Act, 

the contracting officer shall indicate that 

the contract action is being made under 

the Recovery Act, and indicate which 

products or services are funded under 

the Recovery Act. This requirement 

applies whenever Recovery Act funds 

are used, regardless of the contract 

instrument. 

(b) To maximize transparency of 

Recovery Act funds that must be 

reported by the contractor, the 

contracting officer shall structure 

contract awards to allow for separately 

tracking Recovery Act funds. For 

example, the contracting officer may 

consider awarding dedicated separate 

contracts when using Recovery Act 

funds or establishing contract line item 

number (CLIN) structures to mitigate 

commingling of Recovery funds with 

other funds. 

(c) Contracting officers shall ensure 

that the contractor complies with the 

reporting requirements of 52.204–11, 

American Recovery and Reinvestment 

Act—Reporting Requirements. If the 

contractor fails to comply with the 

reporting requirements, the contracting 

officer shall exercise appropriate 

contractual remedies. 

(d) The contracting officer shall make 

the contractor’s failure to comply with 

the reporting requirements a part of the 

contractor’s performance information 

under Subpart 42.15. 

4.1502 Contract clause. 

Insert the clause at 52.204–11, 

American Recovery and Reinvestment 

Act—Reporting Requirements in all 

solicitations and contracts funded in 

whole or in part with Recovery Act 

funds, except classified solicitations and 

contracts. This includes, but is not 

limited to, Governmentwide Acquisition 

Contracts (GWACs), multi-agency 

contracts (MACs), Federal Supply 

Schedule (FSS) contracts, or agency 

indefinite-delivery/indefinite-quantity 

(ID/IQ) contracts that will be funded 

with Recovery Act funds. Contracting 

officers shall ensure that this clause is 

included in any existing contract or 


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order that will be funded with Recovery 

Act funds. Contracting officers may not 

use Recovery Act funds on existing 

contracts and orders if the clause at 

52.204–11 is not incorporated. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 3. Add section 52.204–11 to read as 

follows: 

52.204–11 American Recovery and 

Reinvestment Act—Reporting 

Requirements 

As prescribed in 4.1502, insert the 

following clause: 

American Recovery and Reinvestment 

Act—Reporting Requirements (MAR 

2009) 

(a) Definitions. As used in this clause— 

Contract, as defined in FAR 2.101, means 

a mutually binding legal relationship 

obligating the seller to furnish the supplies 

or services (including construction) and the 

buyer to pay for them. It includes all types 

of commitments that obligate the 

Government to an expenditure of 

appropriated funds and that, except as 

otherwise authorized, are in writing. In 

addition to bilateral instruments, contracts 

include (but are not limited to) awards and 

notices of awards; job orders or task letters 

issued under basic ordering agreements; 

letter contracts; orders, such as purchase 

orders, under which the contract becomes 

effective by written acceptance or 

performance; and bilateral contract 

modifications. Contracts do not include 

grants and cooperative agreements covered 

by 31 U.S.C. 6301, et seq. For discussion of 

various types of contracts, see FAR Part 16. 

First-tier subcontract means a subcontract 

awarded directly by a Federal Government 

prime contractor whose contract is funded by 

the Recovery Act. 

Jobs created means an estimate of those 

new positions created and filled, or 

previously existing unfilled positions that are 

filled, as a result of funding by the American 

Recovery and Reinvestment Act of 2009 

(Recovery Act). This definition covers only 

prime contractor positions established in the 

United States and outlying areas (see 

definition in FAR 2.101). The number shall 

be expressed as ‘‘full-time equivalent’’ (FTE), 

calculated cumulatively as all hours worked 

divided by the total number of hours in a 

full-time schedule, as defined by the 

contractor. For instance, two full-time 

employees and one part-time employee 

working half days would be reported as 2.5 

FTE in each calendar quarter. 

Jobs retained means an estimate of those 

previously existing filled positions that are 

retained as a result of funding by the 

American Recovery and Reinvestment Act of 

2009 (Recovery Act). This definition covers 

only prime contractor positions established 

in the United States and outlying areas (see 

definition in FAR 2.101). The number shall 

be expressed as ‘‘full-time equivalent’’ (FTE), 

calculated cumulatively as all hours worked 

divided by the total number of hours in a 

full-time schedule, as defined by the 

contractor. For instance, two full-time 

employees and one part-time employee 

working half days would be reported as 2.5 

FTE in each calendar quarter. 

Total compensation means the cash and 

noncash dollar value earned by the executive 

during the contractor’s past fiscal year of the 

following (for more information see 17 CFR 

229.402(c)(2)): 

(1) Salary and bonus. 

(2) Awards of stock, stock options, and 

stock appreciation rights. Use the dollar 

amount recognized for financial statement 

reporting purposes with respect to the fiscal 

year in accordance with the Statement of 

Financial Accounting Standards No. 123 

(Revised 2004) (FAS 123R), Shared Based 

Payments. 

(3) Earnings for services under non-equity 

incentive plans. Does not include group life, 

health, hospitalization or medical 

reimbursement plans that do not 

discriminate in favor of executives, and are 

available generally to all salaried employees. 

(4) Change in pension value. This is the 

change in present value of defined benefit 

and actuarial pension plans. 

(5) Above-market earnings on deferred 

compensation which is not tax-qualified. 

(6). Other compensation. For example, 

severance, termination payments, value of 

life insurance paid on behalf of the 

employee, perquisites or property if the value 

for the executive exceeds $10,000. 

(b) This contract requires the contractor to 

provide products and/or services that are 

funded under the American Recovery and 

Reinvestment Act of 2009 (Recovery Act). 

Section 1512(c) of the Recovery Act requires 

each contractor to report on its use of 

Recovery Act funds under this contract. 

These reports will be made available to the 

public. 

(c) 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. 

(d) The Contractor shall report the 

following information, using the online 

reporting tool available at http:// 

www.FederalReporting.gov. 

(1) The Government contract and order 

number, as applicable. 

(2) The amount of Recovery Act funds 

invoiced by the contractor for the reporting 

period. A cumulative amount from all the 

reports submitted for this action will be 

maintained by the government’s on-line 

reporting tool. 

(3) A list of all significant services 

performed or supplies delivered, including 

construction, for which the contractor 

invoiced in this calendar quarter. 

(4) Program or project title, if any. 

(5) A description of the overall purpose 

and expected outcomes or results of the 

contract, including significant deliverables 

and, if appropriate, associated units of 

measure. 

(6) An assessment of the contractor’s 

progress towards the completion of the 

overall purpose and expected outcomes or 

results of the contract (i.e., not started, less 

than 50 percent completed, completed 50 

percent or more, or fully completed). This 

covers the contract (or portion thereof) 

funded by the Recovery Act. 

(7) A narrative description of the 

employment impact of work funded by the 

Recovery Act. This narrative should be 

cumulative for each calendar quarter and 

only address the impact on the contractor’s 

workforce. At a minimum, the contractor 

shall provide— 

(i) A brief description of the types of jobs 

created and jobs retained in the United States 

and outlying areas (see definition in FAR 

2.101). This description may rely on job 

titles, broader labor categories, or the 

contractor’s existing practice for describing 

jobs as long as the terms used are widely 

understood and describe the general nature 

of the work; and 

(ii) An estimate of the number of jobs 

created and jobs retained by the prime 

contractor, in the United States and outlying 

areas. A job cannot be reported as both 

created and retained. 

(8) Names and total compensation of each 

of the five most highly compensated officers 

of the Contractor for the calendar year in 

which the contract is awarded if— 

(i) In the Contractor’s preceding fiscal year, 

the Contractor received— 

(A) 80 percent or more of its annual gross 

revenues from Federal contracts (and 

subcontracts), loans, grants (and subgrants) 

and cooperative agreements; and 

(B) $25,000,000 or more in annual gross 

revenues from Federal contracts (and 

subcontracts), loans, grants (and subgrants) 

and cooperative agreements; and 

(ii) The public does not have access to 

information about the compensation of the 

senior executives through periodic reports 

filed under section 13(a) or 15(d) of the 

Securities Exchange Act of 1934 (15 U.S.C. 

78m(a), 78o(d)) or section 6104 of the 

Internal Revenue Code of 1986. 

(9) For subcontracts valued at less than 

$25,000 or any subcontracts awarded to an 

individual, or subcontracts awarded to a 

subcontractor that in the previous tax year 

had gross income under $300,000, the 

Contractor shall only report the aggregate 

number of such first tier subcontracts 

awarded in the quarter and their aggregate 

total dollar amount. 

(10) For any first-tier subcontract funded in 

whole or in part under the Recovery Act, that 

is over $25,000 and not subject to reporting 

under paragraph 9, the contractor shall 

require the subcontractor to provide the 

information described in (i), (ix), (x), and (xi) 

below to the contractor for the purposes of 

the quarterly report. The contractor shall 

advise the subcontractor that the information 

will be made available to the public as 

required by section 1512 of the Recovery Act. 

The contractor shall provide detailed 

information on these first-tier subcontracts as 

follows: 

(i) Unique identifier (DUNS Number) for 

the subcontractor receiving the award and for 

the subcontractor’s parent company, if the 

subcontractor has a parent company. 

(ii) Name of the subcontractor. 


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(iii) Amount of the subcontract award. 

(iv) Date of the subcontract award. 

(v) The applicable North American 

Industry Classification System (NAICS) code. 

(vi) Funding agency. 

(vii) A description of the products or 

services (including construction) being 

provided under the subcontract, including 

the overall purpose and expected outcomes 

or results of the subcontract. 

(viii) Subcontract number (the contract 

number assigned by the prime contractor). 

(ix) Subcontractor’s physical address 

including street address, city, state, and 

country. Also include the nine-digit zip code 

and congressional district if applicable. 

(x) Subcontract primary performance 

location including street address, city, state, 

and country. Also include the nine-digit zip 

code and congressional district if applicable. 

(xi) Names and total compensation of each 

of the subcontractor’s five most highly 

compensated officers, for the calendar year in 

which the subcontract is awarded if— 

(A) In the subcontractor’s preceding fiscal 

year, the subcontractor received— 

(l) 80 percent or more of its annual gross 

revenues in Federal contracts (and 

subcontracts), loans, grants (and subgrants), 

and cooperative agreements; and 

(2) $25,000,000 or more in annual gross 

revenues from Federal contracts (and 

subcontracts), loans, grants (and subgrants), 

and cooperative agreements; and 

(B) The public does not have access to 

information about the compensation of the 

senior executives through periodic reports 

filed under section 13(a) or 15(d) of the 

Securities Exchange Act of 1934 (15 U.S.C. 

78m(a), 78o(d)) or section 6104 of the 

Internal Revenue Code of 1986. 

(End of clause) 

■ 4. Amend section 52.212–5 by 

revising the date of the clause; and 

redesignating paragraphs (b)(4) through 

(b)(42) as (b)(5) through (b)(43), 

respectively, and adding a new 

paragraph (b)(4) to read as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items 

(MAR 2009) 

* * * * * 

(b) * * * 

_ (4) 52.204–11, American Recovery and 

Reinvestment Act—Reporting Requirements 

(MAR 2009) (Pub. L. 111–5). 

* * * * * 

[FR Doc. E9–7025 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 12, 13, 14, 15, and 52 

[FAC 2005–32; FAR Case 2009–011; Item 

V; Docket 2009–0012, Sequence 1] 

RIN 9000–AL20 

Federal Acquisition Regulation; FAR 

Case 2009–011, American Recovery 

and Reinvestment Act of 2009 (the 

Recovery Act)—GAO/IG Access 

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 the 

American Recovery and Reinvestment 

Act of 2009 (Recovery Act) with respect 

to Sections 902, 1514, and 1515 of 

Division A. 

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 (Alternates) 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 

2009–011, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–011’’ under 

the heading ‘‘Comment or Submission’’. 

Select the link ‘‘Send a Comment or 

Submission’’ that corresponds with FAR 

Case 2009–011. Follow the instructions 

provided to complete the ‘‘Public 

Comment and Submission Form’’. 

Please include your name, company 

name (if any), and ‘‘FAR Case 2009– 

011’’ on your attached document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, FAR Secretariat (VPR), 

1800 F Street, NW., Room 4041, ATTN: 

Hada Flowers, Washington, DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–32, FAR case 

2009–011, 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 

2005–32, FAR case 2009–011. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule implements the 

American Recovery and Reinvestment 

Act of 2009 (Recovery Act) with respect 

to Sections 902, 1514, and 1515, by 

adding alternate clauses to 52.214–26, 

‘‘Audit and Records–Sealed Bidding,’’ 

52.212–5, ‘‘Contract Terms and 

Conditions Required to Implement 

Statutes or Executive Orders– 

Commercial Items,’’ and FAR 52.215–2, 

‘‘Audit and Records-Negotiation.’’ 

Further, FAR 12.504(a)(7) is amended 

for contracts using Recovery Act funds 

to apply 41 U.S.C. 254d(c) and 10 U.S.C. 

2313(c), Examination of Records of 

Contractor, to commercial item 

subcontracts that are otherwise exempt 

when subcontractors are not required to 

provide cost or pricing data. 

Likewise, 13.006(d) is amended for 

contracts using Recovery Act funds to 

apply 52.215–2, ‘‘Audit and RecordsNegotiation’’ to contracts and 

subcontracts which are otherwise 

exempt because they are under the 

simplified acquisition threshold. This 

requirement provides further 

transparency into Federal contracting 

whose contracts are funded with 

Recovery Act funds. 

B. Discussion 

On February 17, 2009, the President 

signed Public Law 111–5, the American 

Recovery and Reinvestment Act of 2009, 

which includes a number of provisions 

to be implemented in Federal 

Government contracts. Among these 

provisions are sections 902, 1514, and 

1515 which serve to ‘‘prevent the fraud, 

waste, and abuse’’ of Recovery Act 


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