[Federal Register Volume 86, Number 125 (Friday, July 2, 2021)]
[Proposed Rules]
[Pages 35257-35258]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-13740]


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DEPARTMENT OF STATE

48 CFR Parts 615 and 652

[Public Notice: 10574]
RIN 1400-AE60


Department of State Acquisition Regulation; Access to Contractor 
Records

AGENCY: Department of State.

ACTION: Proposed rule.

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SUMMARY: The Department of State (DOS) is proposing an amendment to the 
Department of State Acquisition Regulation (DOSAR), to add a new 
contract clause relating to Department requests for examination of 
contractor records.

DATES: The Department of State will accept comments on this proposed 
rule until August 31, 2021.

ADDRESSES: You may submit comments by any of the following methods:
    <bullet> E-mail: <a href="/cdn-cgi/l/email-protection#fabd889b839b9eba898e9b8e9fd49d958c"><span class="__cf_email__" data-cfemail="a0e7d2c1d9c1c4e0d3d4c1d4c58ec7cfd6">[email protected]</span></a>. You must include the RIN in the 
subject line of your message.
    <bullet> Mail (paper or CD-ROM submissions): Ms. Annette Gray, 
Policy Division, Office of the Procurement Executive, A/OPE, 2201 C 
Street NW, Suite 3200, State Annex Number 15, Washington, DC 20520.
    <bullet> Persons with access to the internet may view this interim 
rule and submit comments by visiting: http://www.regulations.gov, and 
searching for docket number DOS-2021-0007.

FOR FURTHER INFORMATION CONTACT: Ms. Tandra Jones, Office of the 
Procurement Executive, A/OPE, 1735 North Lynn Street, Room 442, 
Arlington, VA 22209. Telephone 703-875-6643.

SUPPLEMENTARY INFORMATION: The Department proposes to add 48 CFR part 
615, section 615.209-70, Examination of Records, and 48 CFR part 652, 
section 652.209-70, Examination of Records, to the Department of State 
Acquisition Regulation (DOSAR).

What is the authority for this proposed rule?

    Title 41 of the U.S. Code, section 4706, provides that the head of 
an executive agency, acting through an authorized representative, may, 
for the purpose of evaluating the accuracy, completeness, and currency 
of certified cost or pricing data required to be submitted pursuant to 
41 U.S.C. chapter 35 with respect to a contract or subcontract, examine 
all records of the contractor or subcontractor related to:
    (A) The proposal for the contract or subcontract;
    (B) the discussions conducted on the proposal;
    (C) pricing of the contract or subcontract; or
    (D) performance of the contract or subcontract.
    The Federal Acquisition Regulation (FAR), 48 CFR 15.209(b), 
Solicitation provisions and contract clauses, states (in summary) that, 
when contracting by negotiation, except as provided in section 
15.209(b)(2),\1\ the contracting officer shall insert the clause at 
section 52.215-2, Audit and Records-Negotiation, in solicitations and 
contracts except those for: (1) Acquisitions not exceeding the 
simplified acquisition threshold; (2) The acquisition of utility 
services at rates not exceeding those established to apply uniformly to 
the general public, plus any applicable reasonable connection

[[Page 35258]]

charge; or (3) The acquisition of commercial items exempted under 
section 15.403-1.
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    \1\ Paragraph (b)(2) relates to contracts using funds 
appropriated or otherwise made available by the American Recovery 
and Reinvestment Act of 2009 (Pub. L. 111-5).
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Why is the Department publishing this proposed rule?

    The DOSAR implements the FAR (and therefore, the statute, 41 U.S.C. 
4706) for the Department of State.\2\ The Department has determined, 
after a review of the existing regulations, that further clarity is 
required regarding implementation of 41 U.S.C. 4706 as it relates to 
contracts other than contracts by negotiation (which, as noted, are 
already covered by FAR section 15.209(b)).
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    \2\ 48 CFR 601.303.
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    For these reasons, the Department proposes to add section 615.209-
70 to the DOSAR, requiring the contracting officer to insert a new 
clause, Examination of Records (proposed section 652.215-70), in all 
solicitations and contracts other than contracts by negotiation.

Regulatory Findings

Administrative Procedure Act

    In accordance with the provisions of the Administrative Procedure 
Act, the Department is publishing this rulemaking as a proposed rule, 
and providing 60 days for public comment.

Regulatory Flexibility Act

    The Department of State, in accordance with the Regulatory 
Flexibility Act (5 U.S.C. 605(b)), has reviewed this regulation and, by 
approving it, certifies that this proposed rule will not have a 
significant economic impact on small entities. This determination is 
based on the fact that this proposed rulemaking clarifies within the 
DOSAR the authority of the Department to examine contractor records, 
which is already provided by statute.

Unfunded Mandates Act of 1995

    This proposed rule will not result in the expenditure by State, 
local, and tribal governments, in the aggregate, or by the private 
sector, of $100 million or more in any year and it will not 
significantly or uniquely affect small governments. Therefore, no 
actions were deemed necessary under the provisions of the Unfunded 
Mandates Act of 1995.

Executive Orders 12866 and 13563

    Executive Orders (E.O.) 12866 and 13563 direct agencies to assess 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts and equity). E.O. 13563 
emphasized the importance of quantifying both costs and benefits, of 
reducing costs, of harmonizing rules, and of promoting flexibility. The 
Department of State does not consider this proposed rule to be an 
``economically significant regulatory action'' under Executive Order 
12866.
    In addition, the Department is exempt from Executive Order 12866 
except to the extent that it is promulgating regulations in conjunction 
with a domestic agency that are significant regulatory actions. The 
Department has nevertheless reviewed the regulation to ensure its 
consistency with the regulatory philosophy and principles set forth in 
the Executive Orders and finds that the benefits of this proposed rule 
outweigh any costs, which the Department assesses to be minimal. As 
noted, this proposed rule does not impose any new requirements on 
contractors.

Executive Order 13132

    The proposed rule will not have substantial direct effects on the 
States, on the relationship between the National Government and the 
States, or on the distribution of power and responsibilities among the 
various levels of government. Therefore, in accordance with section 6 
of Executive Order 13132, it is determined that this proposed 
rulemaking will not have sufficient federalism implications to require 
consultations or warrant the preparation of a federalism summary impact 
statement.

Executive Order 13175

    The Department has determined that this proposed rulemaking will 
not have tribal implications, will not impose substantial direct 
compliance costs on Indian tribal governments, and will not pre-empt 
tribal law. Accordingly, the requirements of Executive Order 13175 do 
not apply to this proposed rulemaking.

Paperwork Reduction Act

    This proposed rule does not add or revise any information 
collection requirements subject to the Paperwork Reduction Act, 44 
U.S.C. chapter 35.

List of Subjects in 48 CFR Parts 615 and 652

    Administrative practice and procedure, Government procurement.

    For the reasons stated in the preamble, the Department of State 
proposes to amend 48 CFR chapter 6 as follows:

PART 615--CONTRACTING BY NEGOTIATION

0
1. The authority citation for 48 CFR part 615 continues to read as 
follows:

    Authority:  22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 
1.

0
2. Section 615.209-70 is added to read as follows:


615.209-70   Examination of records.

    The contracting officer shall insert the clause at 652.215-70, 
Examination of Records, in all solicitations and contracts other than 
those described in Federal Acquisition Regulation 15.209(b)(1).

PART 652--SOLICITATION PROVISIONS AND CONTRACT CLAUSES

0
3. The authority citation for 48 CFR part 652 continues to read as 
follows:

    Authority:  22 U.S.C. 2651a, 40 U.S.C. 121(c) and 48 CFR chapter 
1.

0
4. Section 652.215-70 is added to read as follows:


652.215-70   Examination of Records.

    As prescribed in 615.209-70, insert the following clause.

Examination of Records ([ABBREVIATED MONTH AND YEAR 30 DAYS AFTER DATE 
OF PUBLICATION OF FINAL RULE])

    (a) With respect to matters related to this contract or a 
subcontract hereunder, the Department of State Office of the 
Inspector General, or an authorized representative, shall have upon 
request:
    (1) Complete, prompt, and free access to all Contractor and 
Subcontractor files (in any format), documents, records, data, 
premises, and employees, except as limited by law; and
    (2) The right to interview any current Contractor and 
Subcontractor personnel, individually and directly, with respect to 
such matters.
    (b) This clause may not be construed to require the contractor 
or any subcontractor to create or maintain any record that the 
contractor or subcontractor does not maintain in the ordinary course 
of business or pursuant to a provision of law.
    (c) The Contractor shall insert a clause containing all the 
terms of this clause, including this paragraph (c), in all 
subcontracts under this contract other than acquisitions described 
in Federal Acquisition Regulation 15.209(b)(1).


(End of clause)

Zachary A. Parker,
Director, U.S. Department of State.
[FR Doc. 2021-13740 Filed 7-1-21; 8:45 am]
BILLING CODE 4710-24-P


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