14646 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 

(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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Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 14647 

funds through the review and audit of 

contracts using such funds. The interim 

rule is necessary to implement these 

measures to both protect, and provide 

transparency in the use of, Recovery Act 

funds. 

Section 1514 provides for agency 

inspector general review of concerns 

raised by the public regarding 

investments of funds under the 

Recovery Act. Sections 902 and 1515 

provide for respectively, Comptroller 

General and agency inspector general 

reviews of any records of the contractor 

or subcontractor regarding transactions 

using Recovery Act funds, and the 

interview of contractor officers or 

employees concerning such 

transactions. Section 902 also provides 

for the Comptroller General to interview 

subcontractor employees, while 

nowhere in the Recovery Act is 

corresponding authority provided to the 

agency inspector generals. The authority 

for Comptroller General audits of prime 

contractors already exists for Part 12 

contracts under FAR 52.212–5, 

‘‘Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders–Commercial Items’’ 

and for Part 15 contracts under FAR 

52.215–2, ‘‘Audit and Records– 

Negotiation.’’ FAR 52.215–2 also 

provides authority to audit subcontracts, 

while 52.212–5 does not provide 

corresponding authority. In the case of 

Part 13 contracts there are no authorities 

for the audit of either prime contracts or 

subcontracts. Likewise, except in the 

case of modifications involving cost or 

pricing data, for Part 14 contracts there 

are no authorities for the audit of either 

prime contracts or subcontracts. 

In the matter of interviewing 

contractor or subcontractor employees 

concerning contracting transactions 

there are no current authorities under 

the FAR (but see changes under Item VI 

of this FAC 2005–32, FAR Case 2008– 

026). 

Consequently, for contracts using 

Recovery Act funds this interim rule 

provides the following authorities to the 

Comptroller General: 

• For Part 12 contracts the authority 

to audit subcontracts, and to interview 

contractor and subcontractor personnel, 

including contracts below the simplified 

acquisition threshold. 

• For Part 15 contracts the authority 

to interview contractor and 

subcontractor personnel, including 

contracts below the simplified 

acquisition threshold. 

• For Part 14 contracts the authority 

to audit both contracts and subcontracts, 

and to interview contractor and 

subcontractor personnel, including 

contracts below the simplified 

acquisition threshold. 

The interim rule provides the same 

authorities in the preceding paragraph 

to agency inspector generals, with the 

exception of interviewing subcontractor 

employees. 

C. 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 if a provision of 

law contains criminal or civil penalties, 

or if the Federal Acquisition Regulatory 

Council makes a written determination 

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 Sections 902 and 

1515 of the American Recovery and 

Reinvestment Act of 2009 (Recovery 

Act), which require Comptroller General 

and agency inspector general access to 

contractor and subcontractor records 

and contractor personnel, the FAR 

Council has determined this rule should 

apply to commercial items, as defined at 

2.101, both at the prime and subcontract 

levels. 

D. 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 it is not in the 

best interest of the Federal Government 

to exempt COTS item contracts, the 

provision of law will apply. 

Therefore, given Sections 902 and 

1515 of the American Recovery and 

Reinvestment Act of 2009 (Recovery 

Act), which require Comptroller General 

and agency inspector general access to 

contractor and subcontractor records 

and contractor personnel, the 

Administrator, Office of the Federal 

Procurement Policy, has determined the 

rule should apply to Commercially 

Available Off-The-Shelf (COTS) item 

contracts, as defined at FAR 2.101. 

E. 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 

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 

Sections 902 and 1515 of the American 

Recovery and Reinvestment Act of 2009 

(Recovery Act), which require 

Comptroller General and agency 

inspector general access to contractor 

and subcontractor records and 

contractor personnel, the FAR Council 

has determined this rule should apply 

to contracts or subcontracts at or below 

the simplified acquisition threshold, as 

defined at 2.101. 

This is a significant regulatory action 

and, therefore, was subject to Office of 

Management and Budget (OMB) review 

under Section 6 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. 

F. 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, 5 U.S.C. 601, et seq., because it 

requires contractors to make available 

existing records of transactions covered 

by the Act. Contractors are not obligated 

to create additional records. Therefore, 

an Initial Regulatory Flexibility 

Analysis has not been performed. The 

Councils will consider comments from 

small entities concerning the affected 

FAR Parts 12, 13, 14, 15, 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– 

011) in correspondence. 

G. Paperwork Reduction Act 

The Paperwork Reduction Act (Pub. 

L. 96–511) applies to this interim rule. 

However, the information collection 

requirements imposed by the changes to 

52.214–26 and 52.215–2 are currently 

covered by the approved collection 


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14648 Federal Register / Vol. 74, No. 60 / Tuesday, March 31, 2009 / Rules and Regulations 

under OMB Control number 9000–0034 

entitled, Examination of Records by 

Comptroller General and Contract 

Audit: Sections Affected 52.215–2; 

52.212–5; 52.214–26, for these existing 

provisions. The Councils believe 

changes due to the use of these 

provisions will not result in a 

substantial increase in either the burden 

or the number of entities. However, the 

Council welcomes comments on both of 

these items as part of the 60-day 

comment period. 

H. 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 upon 

enactment, and contracts using funds 

appropriated by the Recovery Act will 

soon be ready to award. 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, 13, 

14, 15, 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, 13, 14, 15, and 

52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 12, 13, 14, 15, 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 12.301 by revising 

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

12.301 Solicitation provisions and 

contract clauses for the acquisition of 

commercial items. 

* * * * * 

(b) * * * 

(4) The clause at 52.212–5, Contract 

Terms and Conditions Required to 

Implement Statutes or Executive 

Orders—Commercial Items. This clause 

incorporates by reference only those 

clauses required to implement 

provisions of law or Executive orders 

applicable to the acquisition of 

commercial items. The contracting 

officer shall attach this clause to the 

solicitation and contract and, using the 

appropriate clause prescriptions, 

indicate which, if any, of the additional 

clauses cited in 52.212–5(b) or (c) are 

applicable to the specific acquisition. 

Some of the clauses require fill-in; the 

fill-in language should be inserted as 

directed by 52.104(d). When cost 

information is obtained pursuant to Part 

15 to establish the reasonableness of 

prices for commercial items, the 

contracting officer shall insert the 

clauses prescribed for this purpose in an 

addendum to the solicitation and 

contract. This clause may not be 

tailored. 

(i) Use the clause with its Alternate I 

when the head of the agency has waived 

the examination of records by the 

Comptroller General in accordance with 

25.1001. 

(ii) If the acquisition will use funds 

appropriated or otherwise made 

available by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5), the contracting officer shall use the 

clause with its Alternate II, and may not 

use Alternate I. 

* * * * * 

■ 3. Amend section 12.504 by revising 

paragraph (a)(7) to read as follows: 

12.504 Applicability of certain laws to 

subcontracts for the acquisition of 

commercial items. 

(a) * * * 

(7) 41 U.S.C. 254d(c) and 10 U.S.C. 

2313(c), Examination of Records of 

Contractor, when a subcontractor is not 

required to provide cost or pricing data 

(see 15.209(b)), unless using funds 

appropriated or otherwise made 

available by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5). 

* * * * * 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

■ 4. Amend section 13.006 by revising 

paragraph (d) to read as follows: 

13.006 Inapplicable provisions and 

clauses. 

* * * * * 

(d) 52.215–2, Audits and Records— 

Negotiation, except as used with its 

Alternate I, when using funds 

appropriated or otherwise made 

available by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5). 

* * * * * 

PART 14—SEALED BIDDING 

■ 5. Amend section 14.201–7 by 

revising paragraph (a) to read as follows: 

14.201–7 Contract Clauses. 

(a) When contracting by sealed 

bidding, the contracting officer shall 

insert the clause at 52.214–26, Audit 

and Records-Sealed Bidding, in 

solicitations and contracts as follows: 

(1) Use the basic clause if— 

(i) The acquisition will not use funds 

appropriated or otherwise made 

available by the American Recovery and 

Reinvestment Act of 2009 (Pub. L. 111– 

5); and 

(ii) The contract amount is expected 

to exceed the threshold at 15.403–4(a)(1) 

for submission of cost or pricing data. 

(2) If the acquisition will use funds 

appropriated or otherwise made 

available by the American Recovery and 

Reinvestment Act of 2009, use the 

clause with its Alternate I in all 

solicitations and contracts. 

* * * * * 

■ 6. Amend section 15.209 by revising 

the introductory text of paragraph (b)(1) 

and adding paragraph (b)(2) to read as 

follows: 

15.209 Solicitation provisions and 

contract clauses. 

* * * * * 

(b)(1) Except as provided in paragraph 

(b)(2) of this section, the contracting 

officer shall insert the clause at 52.215– 

2, Audit and Records-Negotiation (10 

U.S.C. 2313, 41 U.S.C. 254d, and OMB 

Circular No. A–133), in solicitations and 

contracts except those for— 

* * * * * 

(2) When using funds appropriated or 

otherwise made available by the 

American Recovery and Reinvestment 

Act of 2009 (Pub. L. 111–5)— 

(i) The exceptions in paragraphs 

(b)(1)(i) through (b)(1)(iii) are not 

applicable; and 

(ii) Use the clause with its Alternate 

I. 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 7. Amend section 52.212–5 by adding 

Alternate II to read as follows: 

52.212–5 Contract Terms and Conditions 

Required to Implement Statutes or 

Executive Orders—Commercial Items. 

* * * * * 

Alternate II (MAR 2009). As 

prescribed in 12.301(b)(4)(ii), substitute 

the following paragraphs (d)(1) and 

(e)(1) for paragraphs (d)(1) and (e)(1) of 

the basic clause as follows: 


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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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