Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 14649 

(d)(1) The Comptroller General of the 

United States, an appropriate Inspector 

General appointed under section 3 or 8G 

of the Inspector General Act of 1978 (5 

U.S.C. App.), or an authorized 

representative of either of the foregoing 

officials shall have access to and right 

to— 

(i) Examine any of the Contractor’s or 

any subcontractors’ records that pertain 

to, and involve transactions relating to, 

this contract; and 

(ii) Interview any officer or employee 

regarding such transactions. 

(e)(1) Notwithstanding the 

requirements of the clauses in 

paragraphs (a), (b), and (c), of this 

clause, the Contractor is not required to 

flow down any FAR clause in a 

subcontract for commercial items, other 

than— 

(i) Paragraph (d) of this clause. This 

paragraph flows down to all 

subcontracts, except the authority of the 

Inspector General under paragraph 

(d)(1)(ii) does not flow down; and 

(ii) Those clauses listed in this 

paragraph (e)(1). Unless otherwise 

indicated below, the extent of the flow 

down shall be as required by the 

clause— 

(A) 52.203–13, Contractor Code of 

Business Ethics and Conduct (Dec 2008) 

(Pub. L. 110–252, Title VI, Chapter 1 (41 

U.S.C. 251 note)). 

(B) 52.219–8, Utilization of Small 

Business Concerns (May 2004) (15 

U.S.C. 637(d)(2) and (3)), in all 

subcontracts that offer further 

subcontracting opportunities. If the 

subcontract (except subcontracts to 

small business concerns) exceeds 

$550,000 ($1,000,000 for construction of 

any public facility), the subcontractor 

must include 52.219–8 in lower tier 

subcontracts that offer subcontracting 

opportunities. 

(C) 52.222–26, Equal Opportunity 

(Mar 2007) (E.O. 11246). 

(D) 52.222–35, Equal Opportunity for 

Special Disabled Veterans, Veterans of 

the Vietnam Era, and Other Eligible 

Veterans (Sept 2006) (38 U.S.C. 4212). 

(E) 52.222–36, Affirmative Action for 

Workers with Disabilities (June 1998) 

(29 U.S.C. 793). 

(F) 52.222–39, Notification of 

Employee Rights Concerning Payment 

of Union Dues or Fees (Dec 2004) (E.O. 

13201). 

(G) 52.222–41, Service Contract Act of 

1965 (Nov 2007) (41 U.S.C. 351, et seq.). 

(H) 52.222–50, Combating Trafficking 

in Persons (Feb 2009) (22 U.S.C. 

7104(g)). 

(I) 2.222–51, Exemption from 

Application of the Service Contract Act 

to Contracts for Maintenance, 

Calibration, or Repair of Certain 

Equipment-Requirements (Nov 2007) 

(41 U.S.C. 351, et seq.). 

(J) 52.222–53, Exemption from 

Application of the Service Contract Act 

to Contracts for Certain ServicesRequirements (Feb 2009) (41 U.S.C. 351, 

et seq.). 

(K) 52.222–54, Employment Eligibility 

Verification (Jan 2009). 

(L) 52.226–6, Promoting Excess Food 

Donation to Nonprofit Organizations. 

(Mar 2009) (Pub. L. 110–247). Flow 

down required in accordance with 

paragraph (e) of FAR clause 52.226–6. 

(M) 52.247–64, Preference for 

Privately Owned U.S.-Flag Commercial 

Vessels (Feb 2006) (46 U.S.C. Appx. 

1241(b) and 10 U.S.C. 2631). Flow down 

required in accordance with paragraph 

(d) of FAR clause 52.247–64. 

■ 8. Amend section 52.214–26 by 

adding Alternate I to read as follows: 

52.214–26 Audit and Records—Sealed 

Bidding. 

* * * * * 

Alternate I (MAR 2009). As prescribed 

in 14.201–7(a)(2) substitute the 

following paragraphs (c) and (e) for 

paragraphs (c) and (e) of the basic 

clause: 

(c) The Comptroller General of the 

United States, an appropriate Inspector 

General appointed under section 3 or 8G 

of the Inspector General Act of 1978 (5 

U.S.C. App.), or an authorized 

representative of either of the foregoing 

officials, shall have access to and the 

right to— 

(1) Examine any of the Contractor’s or 

any subcontractors’ records that pertain 

to, and involve transactions relating to, 

this contract or a subcontract hereunder; 

and 

(2) Interview any officer or employee 

regarding such transactions. 

(e)(1) Except as provided in paragraph 

(e)(2), the Contractor shall insert a 

clause containing the provisions of this 

clause, including this paragraph (e), in 

all subcontracts. 

(2) The authority of the Inspector 

General under paragraph (c)(2) of this 

clause does not flow down to 

subcontracts. 

■ 9. Amend section 52.215–2 by adding 

Alternate I to read as follows: 

52.215–2 Audit and Records—Negotiation. 

* * * * * 

Alternate I (MAR 2009). As prescribed 

in 15.209(b)(2), substitute the following 

paragraphs (d)(1) and (g) for paragraphs 

(d)(1) and (g) of the basic clause: 

(d) Comptroller General or Inspector 

General. (1) The Comptroller General of 

the United States, an appropriate 

Inspector General appointed under 

section 3 or 8G of the Inspector General 

Act of 1978 (5 U.S.C. App.), or an 

authorized representative of either of 

the foregoing officials, shall have access 

to and the right to— 

(i) Examine any of the Contractor’s or 

any subcontractor’s records that pertain 

to and involve transactions relating to 

this contract or a subcontract hereunder; 

and 

(ii) Interview any officer or employee 

regarding such transactions. 

(g)(1) Except as provided in paragraph 

(g)(2) of this clause, the Contractor shall 

insert a clause containing all the terms 

of this clause, including this paragraph 

(g), in all subcontracts under this 

contract. The clause may be altered only 

as necessary to identify properly the 

contracting parties and the Contracting 

Officer under the Government prime 

contract. 

(2) The authority of the Inspector 

General under paragraph (d)(1)(ii) of 

this clause does not flow down to 

subcontracts. 

[FR Doc. E9–7029 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 and 52 

[FAC 2005–32; FAR Case 2008–026; Item 

VI; Docket 2009–0013, Sequence 1] 

RIN 9000–AL25 

Federal Acquisition Regulation; FAR 

Case 2008–026, GAO Access to 

Contractor Employees 

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 

871 of the Duncan Hunter National 

Defense Authorization Act for Fiscal 

Year 2009 (NDAA) (Pub. L. 110–417) 

which allows the Government 

Accountability Office to interview 

current contractor employees during the 

audit of the contractor’s records. FAR 

52.215–2(d)(1), Audit and RecordsNegotiation, is revised to allow for the 


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14650 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 

required access by inserting before the 

period: ‘‘and to interview any current 

employee regarding such transactions’’. 

FAR 52.214–26(c), Audit and RecordsSealed Bidding is revised to allow for 

the required access by inserting before 

the period: ‘‘and also the right to 

interview any current employee 

regarding such transactions’’. 

DATES: Effective Date: March 31, 2009. 

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 

2008–026, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–026’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2008– 

026. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2008–026’’ 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 

2008–026, 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: Ms. 

Suzanne Neurauter, Procurement 

Analyst, at (202) 219–0310 for 

clarification of content. Please cite FAC 

2005–32, FAR case 2008–026. For 

information pertaining to status or 

publication schedules, contact the FAR 

Secretariat at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

Section 871 of the Duncan Hunter 

National Defense Authorization Act for 

Fiscal Year 2009 (NDAA) (Pub. L. 110– 

417) added language allowing the 

Comptroller General to interview 

current employees regarding 

transactions being examined during an 

audit of contracting records. The Act 

revises 41 U.S.C. 254d(c)(1) and 10 

U.S.C. 2313(c)(1) by inserting before the 

period: ‘‘and to interview any current 

employee regarding such transactions’’. 

To implement the Act, FAR clauses 

52.215–2, Audit and RecordsNegotiation and 52.214–26, Audit and 

Records-Sealed Bidding, are amended to 

add the required statutory language. The 

statute did not specify that Section 871 

apply to commercial item contracts and 

therefore was not applied to FAR clause 

52.212–5, Contract Terms and 

Conditions Required to Implement 

Statutes or Executive Order-Commercial 

Items. Section 34 of the Office of 

Federal Procurement Policy Act (OFPP), 

41 U.S.C. 430, exempts commercial item 

acquisitions from new provisions of 

law, such as Section 871, unless (1) the 

law provides criminal or civilian 

penalties, (2) the law expressly refers to 

41 U.S.C. 430 and states that it applies 

to commercial item contracts, or (3) the 

FAR Council makes a written 

determination that it would not be in 

the best interest of the Federal 

Government to exempt commercial item 

contracts. Thus, this new provision was 

added to the list of inapplicable laws at 

FAR 12.503(a). 

This is a significant regulatory action 

and, therefore, was subject to review 

under Section 6 of Executive Order 

12886, 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 Councils do not expect this 

interim rule to have a significant 

economic impact on a substantial 

number of small entities within the 

meaning of the Regulatory Flexibility 

Act, at 5 U.S.C. 601, et seq. Only a small 

number of small businesses are audited 

by GAO. Currently many GAO audits of 

small business contractors include 

contractor employee interviews. This 

Act is designed to cover those incidents 

in which contractor employees are not 

able to be interviewed. Therefore, it is 

not anticipated that interviewing any 

current employee regarding such 

contract transactions will have a 

significant impact. 

Therefore, an Initial Regulatory 

Flexibility Analysis has not been 

performed. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 12 

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 2008–026 in all 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 to implement 

statutory requirements of Section 871 of 

the Duncan Hunter National Defense 

Authorization Act for Fiscal Year 2009 

(NDAA) (Pub. L. 110–417) which went 

into effect October 14, 2008. The Act 

revises 41 U.S.C. 254d (c)(1) and 10 

U.S.C. 2313 (c)(1) by inserting before the 

period: ‘‘and to interview any current 

employee regarding such transactions’’. 

To implement the Act, the clauses at 

FAR 52.215–2(d)(1) and 52.214–26(c) 

are amended to add the required 

statutory language. The Councils believe 

that the interim rule in the FAR will 

provide the contracting officer the 

relevant regulatory guidance needed 

when addressing requirements outlined 

in this rule. 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 12 and 

52 

Government procurement. 

Dated: March 25, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 12 and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 12 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 12—ACQUISITION OF 

COMMERCIAL ITEMS 

■ 2. Amend section 12.503 by adding 

paragraph (a)(8) to read as follows: 

12.503 Applicability of certain laws to 

Executive agency contracts for the 

acquisition of commercial items. 

(a) * * * 

(8) 41 U.S.C. 254d(c)(1) and 10 U.S.C. 

2313(c)(1), GAO Access to Contractor 

Employees, Section 871 of Pub. L. 110– 

417 (see 52.214–26 and 52.215–2). 

* * * * * 


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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 


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