63076 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 

■ 1. The authority citation for 48 CFR 

parts 2, 4, 5, and 13 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 2—DEFINITIONS OF WORDS 

AND TERMS 

2.101 [Amended] 

■ 2. Amend section 2.101(b)(2) by 

removing the definition ‘‘Federal 

Acquisition Computer (Network 

FACNET) Architecture.’’

PART 4—ADMINISTRATIVE MATTERS 

■ 3. Amend section 4.502 by revising 

paragraph (b)(2) to read as follows: 

4.502 Policy. 

* * * * * 

(b) * * * 

(2) Are implemented only after 

considering the full or partial use of 

existing infrastructures; 

* * * * * 

PART 5—PUBLICIZING CONTRACT 

ACTIONS 

5.101 [Amended] 

■ 4. Amend section 5.101 by removing 

from paragraph (a)(2)(ii) the words ‘‘or 

Federal Acquisition Computer Network 

(FACNET)’’. 

■ 5. Amend section 5.102 by revising 

paragraph (a)(3) to read as follows: 

5.102 Availability of solicitations. 

(a) * * * 

(3) The contracting officer must 

ensure that solicitations transmitted 

using electronic commerce are 

forwarded to the GPE to satisfy the 

requirements of paragraph (a)(1) of this 

section. 

* * * * * 

■ 6. Amend section 5.201 by revising 

paragraph (b)(2) to read as follows: 

5.201 General. 

* * * * * 

(b) * * * 

(2) When transmitting notices using 

electronic commerce, contracting 

officers must ensure the notice is 

forwarded to the GPE. 

* * * * * 

5.203 [Amended] 

■ 7. Amend section 5.203 in paragraph 

(b) by removing the words ‘‘via FACNET 

or for which’’ and adding the word 

‘‘where’’ in its place. 

PART 13—SIMPLIFIED ACQUISITION 

PROCEDURES 

13.104 [Amended] 

■ 8. Amend section 13.104 by removing 

from paragraph (b) the words ‘‘using 

either FACNET or’’. 

■ 9. Amend section 13.105 by revising 

paragraph (a) to read as follows: 

13.105 Synopsis and posting 

requirements. 

(a) The contracting officer must 

comply with the public display and 

synopsis requirements of 5.101 and 

5.203 unless an exception in 5.202 

applies. 

* * * * * 

■ 10. Amend section 13.106–1 by 

revising paragraph (f) to read as follows: 

13.106–1 Soliciting competition. 

* * * * * 

(f) Inquiries. An agency should 

respond to inquiries received through 

any medium (including electronic 

commerce) if doing so would not 

interfere with the efficient conduct of 

the acquisition. 

13.106–2 [Amended] 

■ 11. Amend section 13.106–2 by 

removing from paragraph (b)(4) 

introductory text the words ‘‘FACNET 

or’’. 

13.106–3 [Amended] 

■ 12. Amend section 13.106–3 by 

removing from paragraph (c) the words 

‘‘FACNET or’’. 

13.307 [Amended] 

■ 13. Amend section 13.307 by 

removing from paragraph (b)(1) ‘‘via 

FACNET,’’ and the comma after 

‘‘electronically’’. 

[FR Doc. 07–5479 Filed 11–6–07; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 15, 17, 22, and 52 

[FAC 2005–21; FAR Case 2001–004; Item 

V; Docket 2007–0001, Sequence 6] 

RIN 9000–AK82 

Federal Acquisition Regulation; FAR 

Case 2001–004, Exemption of Certain 

Service Contracts from the Service 

Contract Act (SCA) 

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 revise the current 

SCA exemption and to add a SCA 

exemption for contracts for certain 

additional services that meet specific 

criteria. 

DATES: Effective Date: November 7, 

2007. 

Comment Date: Interested parties 

should submit written comments to the 

FAR Secretariat on or before January 7, 

2008 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–21, FAR case 

2001–004, by any of the following 

methods: 

• Federal eRulemaking Portal: http:// 

www.regulations.gov. To search for any 

document, first select under ‘‘Step 1,’’

‘‘Documents with an Open Comment 

Period’’ and select under ‘‘Optional Step 

2,’’ ‘‘Federal Acquisition Regulation’’ as 

the agency of choice. Under ‘‘Optional 

Step 3,’’ select ‘‘Rules’’. Under 

‘‘Optional Step 4,’’ from the drop down 

list, select ‘‘Document Title’’ and type 

the FAR case number ‘‘2001–004’’. Click 

the ‘‘Submit’’ button. Please include 

your name and company name (if any) 

inside the document. 

You may also search for any 

document by clicking on the ‘‘Search for 

Documents’’ tab at the top of the screen. 

Select from the agency field ‘‘Federal 

Acquisition Regulation’’, and type 

‘‘2001–004’’ in the ‘‘Document Title’’

field. Select the ‘‘Submit’’ button. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VIR), 1800 F Street, NW, Room 4035, 

ATTN: Laurieann Duarte, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–21, FAR case 

2001–004, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov. Please include 

your name and company name (if any) 

inside the document. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Ernest Woodson, Procurement Analyst, 

at (202) 501–3775 for clarification of 

content. Please cite FAC 2005–21, FAR 

case 2001–004. For information 

pertaining to status or publication 

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Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 63077 

schedules, contact the FAR Secretariat 

at (202) 501–4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

On January 18, 2001, the Wage and 

Hour Division of the U.S. Department of 

Labor’s Employment Standards 

Administration, issued a final rule 

amending the regulations at 29 CFR part 

4 to exempt certain contracts for 

services meeting specific criteria from 

coverage under the SCA (66 FR 5327). 

The Councils opened FAR case 2001–

004 to implement the Department of 

Labor (DoL) rule. 

The FAR currently exempts contracts 

(or subcontracts) principally for the 

maintenance, calibration, or repair of 

certain equipment if—

•The items of equipment are items 

which are used regularly for other than 

Government purposes and are sold or 

traded by the contractor in substantial 

quantities to the general public in the 

course of normal business operations. 

•The contract services are furnished 

at prices which are, or are based on, 

established catalog or market prices (see 

29 CFR 4.123(e)(1)(ii)(B)). 

•The contractor utilizes the same 

compensation (wage and fringe benefits) 

plan for all service employees 

performing work under the contract as 

the contractor uses for equivalent 

employees servicing the same 

equipment of commercial customers. 

•The contractor certifies in the 

contract that it meets these criteria. 

This interim FAR rule incorporates 

slight revisions to this current 

exemption for consistency with the 

current DoL regulations and 

clarification of appropriate course of 

action for the contracting officer. 

The interim FAR rule does not refer 

to these services as commercial services, 

because the specified criteria are not 

exactly the same as the FAR definition 

of ‘‘commercial item.’’ Rather than 

redefining ‘‘commercial item,’’ this rule 

imposes the DoL criteria and does not 

utilize the term ‘‘commercial services.’’

In addition to this first category of 

service contracts, in order to implement 

the new DoL regulations, the FAR 

interim rule establishes a new category 

of exemption for contracts for certain 

services that includes the following: 

• Automobile or other vehicle (e.g., 

aircraft) maintenance services (other 

than contracts or subcontracts to operate 

a Government motor pool or similar 

facility). 

• Financial services involving the 

issuance and servicing of cards 

(including credit cards, debit cards, 

purchase cards, smart cards, and similar 

card services). 

• Hotel/motel services for conferences, 

including lodging and/or meals, that are 

part of the contract or subcontract for 

the conference (which must not include 

ongoing contracts for lodging on an as 

needed or continuing basis). 

• Maintenance, calibration, repair, 

and/or installation (where the 

installation is not subject to the DavisBacon Act, as provided in 29 CFR 

4.116(c)(2)) services for all types of 

equipment where the services are 

obtained from the manufacturer or 

supplier of the equipment under a 

contract awarded on a sole source basis. 

•Transportation by common carrier of 

persons by air, motor vehicle, rail, or 

marine vessel on regularly scheduled 

routes or via standard commercial 

services (not including charter services). 

•Real estate services, including real 

property appraisal services, related to 

housing Federal agencies or disposing of 

real property owned by the Government. 

•Relocation services, including 

services of real estate brokers and 

appraisers to assist Federal employees 

or military personnel in buying and 

selling homes (which shall not include 

actual moving or storage of household 

goods and related services). 

In order for these contracts for 

services to be exempt, the contract must 

meet all the criteria for the other 

services in the first category 

(substituting ‘‘services’’ for ‘‘item of 

equipment’’ in the first criterion, and 

removing other specific references to 

‘‘equipment’’ and ‘‘manufacturer’’), but 

the contract must also meet the 

following criteria: 

•The services under the contract (or 

subcontract) will be awarded on a solesource basis or the contractor will be 

selected for award based on other 

factors in addition to price or cost, with 

the combination of other factors at least 

as important as price or cost in selecting 

the contractor. 

• Each service employee who will 

perform the services under the contract 

(or subcontract) will spend only a small 

portion of his or her time (a monthly 

average of less than 20 percent of the 

available hours on an annualized basis, 

or less than 20 percent of available 

hours during the contract period if the 

contract period is less than a month) 

servicing the Government contract (or 

subcontract). 

•The contracting officer (or contractor 

with respect to a subcontract) 

determines in advance, based on the 

nature of the contract (or subcontract) 

requirements and knowledge of the 

practices of likely offerors, that all or 

nearly all offerors will meet the 

conditions. If the services are currently 

being performed under contract (or 

subcontract), the contracting officer (or 

contractor with respect to a subcontract) 

shall consider the practices of the 

existing contractor (or subcontractor) in 

making a determination regarding the 

conditions. 

•The apparent successful offeror 

certifies, the contracting officer has no 

reason to doubt the certification, and the 

contracting officer determines that the 

same certification is obtained from 

substantially all other offerors that are—

• In the competitive range, if 

discussions are to be conducted (see 

FAR 15.306)(c)); or 

•Considered responsive, if award is to 

be made without discussions (see FAR 

15.306(a)). 

Council representatives discussed 

with DoL the implementation of the DoL 

rule for these contracts for services at 

the point of receipt of offers. The FAR 

rule attempts to minimize the 

occurrence of the situation in which it 

will be necessary to revise the 

solicitation after receipt of offers to 

remove the exemption provision and 

require use of the SCA clauses, even 

though the apparent successful offeror 

certified to criteria for the exemption. 

The FAR rule uses the term 

‘‘substantially all’’ to indicate that there 

could be a slightly different 

interpretation of the phrase ‘‘all or 

nearly all’’ than at the beginning of the 

process. DoL concurs that the 

contracting officer will have the 

discretion to interpret this term, as long 

as the intention reflected in the 

preamble to the SCA regulations (66 FR 

5327) controls the contracting officer’s 

exercise of discretion. DoL also concurs 

that it is not necessary to consider 

offerors that did not certify if these 

offerors were not in the competitive 

range or not responsive. Therefore, the 

FAR rule adds this condition when 

considering whether substantially all 

offerors have certified. 

The exemption for the second 

category of contracts for services does 

not apply to solicitations and contracts 

(subcontracts)—

• Awarded under the Javits-WagnerO’Day Act, 41 U.S.C. 47. 

• For the operation of a Government 

facility, or part of a Government facility 

(but may be applicable to subcontracts 

for services that meet all of the criteria); 

or 

• Subject to Section 4(c) of the Service 

Contract Act (see 22.1002–3). 

Whether the contracts for services fall 

in the first or second category, the 

Department of Labor retains the right to 

review those contracts that claim 

exemption from the SCA. If the 

Department of Labor determines after 

award of the contract (or subcontract) 

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63078 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 

that any condition for exemption has 

not been met, the exemption shall be 

deemed inapplicable, and the contract 

(or subcontract) becomes subject to the 

Service Contract Act. In such case, the 

procedures at 29 CFR 4.123(e)(2)(iii) and 

29 CFR 4.5(c) will be followed. 

In accordance with Section 29 of the 

Office of Federal Procurement Policy 

Act, the Federal Acquisition Regulatory 

Council (FAR Council) has obtained the 

approval of the Administrator of the 

Office of Federal Procurement Policy for 

the inclusion of two nonstatutory 

certifications in this interim FAR rule, 

as required by the Department of Labor 

Regulations at 29 CFR 4.123(e)(1)(ii)(D) 

and (e)(2)(ii)(G). 

This is not a significant regulatory 

action and, therefore, was not subject to 

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. 

B. Regulatory Flexibility Act 

The changes 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 this 

rule exempts certain service contracts 

from the Service Contract Act for both 

contractors and subcontractors. An 

Initial Regulatory Flexibility Analysis 

(IRFA) has been prepared. The analysis 

is summarized as follows: 

This interim rule implements 29 CFR 

4.123(e) of the Department of Labor (DoL) 

regulation regarding Administrative 

limitations, variance, tolerances, and 

exemptions. Paragraph (e) provides 

exemption for contracts for certain services 

that meet specific criteria. 

The objective of the DoL final rule was to 

further the commitment of the 

Administration to be more commercial-like, 

encourage broader participation in 

Government procurement by companies 

doing business in the commercial sector, and 

reinforce our commitment to reduce 

Government-unique terms and conditions, 

without compromising the purpose of the 

SCA to protect prevailing labor standards. 

The interim FAR rule should have a 

positive economic impact on the small 

contractors and subcontractors that meet the 

exemption criteria to be exempt from the 

SCA for certain services, because it may 

provide additional opportunities for work on 

Federal projects; enable these contractors to 

compete in a more commercial-like 

environment, and alleviate the burden of 

complying with Government-unique terms 

and conditions for these types of contracts. 

Pursuant to Section (4)(b) of the SCA, the 

Secretary of Labor may grant reasonable 

exemptions to the provisions of the SCA, but 

only in special circumstances where the 

exemption is necessary and proper in the 

public interest, and is in accord with the 

remedial purposes of the Act to protect 

prevailing labor standards. 

This interim FAR rule will apply to all 

large and small entities that seek award of 

Federal service contracts in the service 

categories identified. The Councils relied on 

the DoL regulatory flexibility analysis (66 FR 

5339), which determined that a majority of 

contracts affected by the proposed exemption 

would likely be performed by small 

businesses. Federal Procurement Data System 

(FPDS) does not provide an accurate estimate 

of the contracts potentially covered by the 

exemption, but DoL estimates that the total 

value of the exempt contracts could be 

relatively small, and that the SCA would no 

longer apply to only a relatively small 

number of contracts that currently contain 

SCA wage determination provisions. 

The interim rule does not duplicate, 

overlap, or conflict with any other Federal 

rules. 

There are no practical alternatives that will 

accomplish the objectives of this interim 

rule. However, the exemption is expected to 

have a positive impact on small entities, 

because it does not contain any new 

reporting or recordkeeping or other 

compliance requirements applicable to small 

business. Rather, the exemption would 

relieve small businesses and other 

contractors from the requirements of the SCA 

on certain contracts. 

The FAR Secretariat has submitted 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, 15, 17, 22, 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 2005–21, FAR 

case 2001–004), in the 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. 3501, 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 incorporate the 

Department of Labor’s final rule, which 

was effective March 19, 2001, into the 

Federal Acquisition Regulation. 

Although there has been delay while 

seeking appropriate implementation of 

the DoL final rule, industries that 

provide services in these categories are 

seeking to take advantage of the offered 

exemptions without further delay. 

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, 15, 

17, 22, and 52 

Government procurement. 

Dated: October 31, 2007. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 4, 15, 17, 22, and 

52 as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 4, 15, 17, 22, 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 

4.1201 [Amended] 

■ 2. Amend section 4.1201 by removing 

from paragraph (c) ‘‘52.212–3(k)’’ and 

adding ‘‘52.212–3(l)’’ in its place. 

■ 3. Amend section 4.1202 by revising 

paragraph (q) to read as follows: 

4.1202 Solicitation provision and contract 

clause. 

* * * * * 

(q) 52.222–48, Exemption from 

Application of the Service Contract Act 

to Contracts for Maintenance, 

Calibration, or Repair of Certain 

Equipment Certification. 

* * * * * 

PART 15—CONTRACTING BY 

NEGOTIATION 

15.102 [Amended] 

■ 4. Amend section 15.102 by removing 

from paragraph (b) ‘‘52.212–3(k)’’ and 

adding ‘‘52.212–3(l)’’ in its place. 

PART 17—SPECIAL CONTRACTING 

METHODS 

17.109 [Amended] 

■ 5. Amend section 17.109 by removing 

from paragraph (b)(1) ‘‘, as amended’’. 

PART 22—APPLICATION OF LABOR 

LAWS TO GOVERNMENT 

ACQUISITIONS 

■ 6. Amend section 22.1003–4 by 

removing paragraph (b)(4); and by 

adding paragraphs (c) and (d) to read as 

follows: 

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Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 63079 

22.1003–4 Administrative limitations, 

variations, tolerances, and exemptions. 

* * * * * 

(c) Contracts for maintenance, 

calibration or repair of certain 

equipment.— (1) Exemption. The 

Secretary of Labor has exempted from 

the Act contracts and subcontracts in 

which the primary purpose is to furnish 

maintenance, calibration, or repair of 

the following types of equipment, if the 

conditions at paragraph (c)(2) of this 

subsection are met: 

(i) Automated data processing 

equipment and office information/word 

processing systems. 

(ii) Scientific equipment and medical 

apparatus or equipment if the 

application of micro-electronic circuitry 

or other technology of at least similar 

sophistication is an essential element 

(for example, Federal Supply 

Classification (FSC) Group 65, Class 

6515, ‘‘Medical Diagnostic Equipment;’’

Class 6525, ‘‘X-Ray Equipment;’’ FSC 

Group 66, Class 6630, ‘‘Chemical 

Analysis Instruments;’’ and Class 6665, 

‘‘Geographical and Astronomical 

Instruments,’’ are largely composed of 

the types of equipment exempted in this 

paragraph). 

(iii) Office/business machines not 

otherwise exempt pursuant to paragraph 

(c)(1)(i) of this subsection, if such 

services are performed by the 

manufacturer or supplier of the 

equipment. 

(2) Conditions. The exemption at 

paragraph (c)(1) of this subsection 

applies if all the following conditions 

are met for a contract (or a subcontract): 

(i) The items of equipment to be 

serviced under the contract are used 

regularly for other than Government 

purposes and are sold or traded by the 

contractor in substantial quantities to 

the general public in the course of 

normal business operations. 

(ii) The services will be furnished at 

prices which are, or are based on, 

established catalog or market prices for 

the maintenance, calibration, or repair 

of such equipment. As defined at 29 

CFR 4.123(e)(1)(ii)(B)—

(A) An established catalog price is a 

price included in a catalog price list, 

schedule, or other form that is regularly 

maintained by the manufacturer or the 

contractor, is either published or 

otherwise available for inspection by 

customers, and states prices at which 

sales currently, or were last, made to a 

significant number of buyers 

constituting the general public. 

(B) An established market price is a 

current price, established in the usual 

course of trade between buyers and 

sellers free to bargain, which can be 

substantiated from sources independent 

of the manufacturer or contractor. 

(iii) The contractor will use the same 

compensation (wage and fringe benefits) 

plan for all service employees 

performing work under the contract as 

the contractor uses for these employees 

and equivalent employees servicing the 

same equipment of commercial 

customers. 

(iv) The apparent successful offeror 

certifies to the conditions in paragraph 

(c)(2)(i) through (iii) of this subsection. 

(See 22.1006(e).) 

(3) Affirmative determination and 

contract award. (i) For source selections 

where the contracting officer has 

established a competitive range, if the 

contracting officer determines that one 

or more of the conditions in paragraphs 

22.1003–4 (c)(2)(i) through (iii) of an 

offeror’s certification will not be met, 

the contracting officer shall identify the 

deficiency to the offeror before receipt 

of the final proposal revisions. Unless 

the offeror provides a revised offer 

acknowledging applicability of the 

Service Contract Act or demonstrating 

to the satisfaction of the contracting 

officer an ability to meet all required 

conditions for exemption, the offer will 

not be further considered for award. 

(ii) The contracting officer shall 

determine in writing the applicability of 

this exemption to the contract before 

contract award. If the apparent 

successful offeror will meet all 

conditions in paragraph (c)(2) of this 

subsection, the contracting officer shall 

make an affirmative determination and 

award the contract without the 

otherwise applicable Service Contract 

Act clause(s). 

(iii) If the apparent successful offeror 

does not certify to the conditions in 

paragraph (c)(2)(i) through (iii) of this 

subsection, the contracting officer shall 

incorporate in the contract the Service 

Contract Act clause (see 22.1006(a)(2)) 

and, if the contract will exceed $2,500, 

the appropriate Department of Labor 

wage determination (see 22.1007). 

(4) Department of Labor 

determination. (i) If the Department of 

Labor determines after award of the 

contract that any condition for 

exemption in paragraph (c)(2) of this 

subsection has not been met, the 

exemption shall be deemed 

inapplicable, and the contract shall 

become subject to the Service Contract 

Act, effective as of the date of the 

Department of Labor determination. In 

such case, the procedures at 29 CFR 

4.123(e)(1)(iv) and 29 CFR 4.5(c) shall 

be followed. 

(ii) If the Department of Labor 

determines after award of the 

subcontract that any conditions for 

exemption in paragraph (c)(2) of this 

subsection have not been met, the 

exemption shall be deemed 

inapplicable. The contractor may be 

responsible for ensuring that the 

subcontractor complies with the Act, 

effective as of the date of the 

subcontract award. 

(d) Contracts for certain services.— (1) 

Exemption. Except as provided in 

paragraph (d)(5) of this subsection, the 

Secretary of Labor has exempted from 

the Act contracts and subcontracts in 

which the primary purpose is to provide 

the following services, if the conditions 

in paragraph (d)(2) of this subsection are 

met: 

(i) Automobile or other vehicle (e.g., 

aircraft) maintenance services (other 

than contracts or subcontracts to operate 

a Government motor pool or similar 

facility). 

(ii) Financial services involving the 

issuance and servicing of cards 

(including credit cards, debit cards, 

purchase cards, smart cards, and similar 

card services). 

(iii) Hotel/motel services for 

conferences, including lodging and/or 

meals, that are part of the contract or 

subcontract for the conference (which 

must not include ongoing contracts for 

lodging on an as needed or continuing 

basis). 

(iv) Maintenance, calibration, repair, 

and/or installation (where the 

installation is not subject to the DavisBacon Act, as provided in 29 CFR 

4.116(c)(2)) services for all types of 

equipment where the services are 

obtained from the manufacturer or 

supplier of the equipment under a 

contract awarded on a sole source basis. 

(v) Transportation by common carrier 

of persons by air, motor vehicle, rail, or 

marine vessel on regularly scheduled 

routes or via standard commercial 

services (not including charter services). 

(vi) Real estate services, including real 

property appraisal services, related to 

housing Federal agencies or disposing of 

real property owned by the Government. 

(vii) Relocation services, including 

services of real estate brokers and 

appraisers to assist Federal employees 

or military personnel in buying and 

selling homes (which shall not include 

actual moving or storage of household 

goods and related services). 

(2) Conditions. The exemption for the 

services in paragraph (d)(1) of this 

subsection applies if all the following 

conditions are met for a contract (or for 

a subcontract): 

(i)(A) The contract will be awarded on 

a sole-source basis; or 

(B) Except for services identified in 

paragraph (d)(1)(iv) of this subsection, 

the contractor will be selected for award 

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63080 Federal Register / Vol. 72, No. 215 / Wednesday, November 7, 2007 / Rules and Regulations 

based on other factors in addition to 

price or cost, with the combination of 

other factors at least as important as 

price or cost in selecting the contractor. 

(ii) The services under the contract 

are offered and sold regularly to nonGovernmental customers, and are 

provided by the contractor (or 

subcontractor in the case of an exempt 

subcontract) to the general public in 

substantial quantities in the course of 

normal business operations. 

(iii) The contract services are 

furnished at prices that are, or are based 

on, established catalog or market prices. 

As defined at 29 CFR 4.123(e)(2)(ii)(C)—

(A) An established catalog price is a 

price included in a catalog, price list, 

schedule, or other form that is regularly 

maintained by the contractor, is either 

published or otherwise available for 

inspection by customers, and states 

prices at which sales are currently, or 

were last, made to a significant number 

of buyers constituting the general 

public; and 

(B) An established market price is a 

current price, established in the usual 

course of trade between buyers and 

sellers free to bargain, which can be 

substantiated from sources independent 

of the manufacturer or contractor. 

(iv) Each service employee who will 

perform the services under the contract 

will spend only a small portion of his 

or her time (a monthly average of less 

than 20 percent of the available hours 

on an annualized basis, or less than 20 

percent of available hours during the 

contract period if the contract period is 

less than a month) servicing the 

Government contract. 

(v) The contractor will use the same 

compensation (wage and fringe benefits) 

plan for all service employees 

performing work under the contract as 

the contractor uses for these employees 

and equivalent employees servicing 

commercial customers. 

(vi) The contracting officer (or 

contractor with respect to a subcontract) 

determines in advance, based on the 

nature of the contract requirements and 

knowledge of the practices of likely 

offerors, that all or nearly all offerors 

will meet the conditions in paragraph 

(d)(2)(ii) through (v) of this subsection. 

If the services are currently being 

performed under contract, the 

contracting officer (or contractor with 

respect to a subcontract) shall consider 

the practices of the existing contractor 

in making a determination regarding the 

conditions in paragraphs (d)(2)(ii) 

through (v) of this subsection. 

(vii)(A) The apparent successful 

offeror certifies that the conditions in 

paragraphs (d)(2)(ii) through (v) will be 

met; and 

(B) For other than sole source awards, 

the contracting officer determines that 

the same certification is obtained from 

substantially all other offerors that are—

(1) In the competitive range, if 

discussions are to be conducted (see 

FAR 15.306)(c)); or 

(2) Considered responsive, if award is 

to be made without discussions (see 

FAR 15.306(a)). 

(3) Contract award or resolicitation. (i) 

If the apparent successful offeror does 

not certify to the conditions, the 

contracting officer shall insert in the 

contract the applicable Service Contract 

Act clause(s) (see 22.1006(a)(2)) and, if 

the contract will exceed $2,500, the 

appropriate Department of Labor wage 

determination (see 22.1007). 

(ii) The contracting officer shall award 

the contract without the otherwise 

applicable Service Contract Act 

clause(s) if—

(A) The apparent successful offeror 

certifies to the conditions in paragraphs 

(d)(2)(ii) through (v) of this subsection; 

(B) The contracting officer determines 

that the same certification is obtained 

from substantially all other offerors that 

are—

(1) In the competitive range, if 

discussions are to be conducted (see 

FAR 15.306); or 

(2) Considered responsive, if award is 

to be made without discussions (see 

FAR 15.306(a)); and 

(C) The contracting officer has no 

reason to doubt the certification. 

(iii) If the conditions in paragraph 

(d)(3)(ii) of this subsection are not met, 

then the contracting officer shall 

resolicit, amending the solicitation by 

removing the exemption provision from 

the solicitation (see 22.1006(e)(4)), and 

inserting in the contract the applicable 

Service Contract Act clause(s) (see 

22.1006(a)(2)) and, if the contract will 

exceed $2,500, the appropriate 

Department of Labor wage 

determination (see 22.1007). 

(4) Department of Labor 

determination. (i) If the Department of 

Labor determines after award of the 

contract that any conditions for 

exemption at paragraph (d)(2) of this 

subsection have not been met, the 

exemption shall be deemed 

inapplicable, and the contract shall 

become subject to the Service Contract 

Act. In such case, the procedures at 29 

CFR 4.123(e)(2)(iii) and 29 CFR 4.5(c) 

shall be followed. 

(ii) If the Department of Labor 

determines that any conditions in 

paragraph (d)(2) of this subsection have 

not been met with respect to a 

subcontract, the exemption shall be 

deemed inapplicable and the contractor 

may be responsible for ensuring that the 

subcontractor complies with the Act, 

effective as of the date of the 

subcontract award. 

(5) Exceptions. The exemption at 

paragraph (d)(1) of this subsection does 

not apply to solicitations and contracts 

(subcontracts)—

(i) Awarded under the Javits-WagnerO’Day Act, 41 U.S.C. 47 (see Subpart 

8.7). 

(ii) For the operation of a Government 

facility, or part of a Government facility 

(but may be applicable to subcontracts 

for services); or 

(iii) Subject to Section 4(c) of the 

Service Contract Act (see 22.1002–3). 

22.1003–5 [Amended] 

■ 7. Amend section 22.1003–5 by 

removing from paragraph (k) ‘‘22.1003–

4(b)(4)’’ and adding ‘‘22.1003(c)(1) and 

(d)(1)(iv)’’ in its place. 

22.1003–6 [Amended] 

■ 8. Amend section 22.1003–6 by 

removing from paragraph (b)(2) 

‘‘22.1003–4(b)(4)’’ and adding 

‘‘22.1003(c)(1) and (d)(1)(iv)’’ in its 

place. 

■ 9. Amend section 22.1004 by revising 

paragraph (h) to read as follows: 

22.1004 Department of Labor 

responsibilities and regulations. 

* * * * * 

(h) Practice before the Administrative 

Review Board (29 CFR part 8). 

■ 10. Amend section 22.1006 by—

■ a. Revising the section heading; 

■ b. Revising paragraph (a); 

■ c. Removing from paragraphs (c)(1) 

and (c)(2) ‘‘as amended,’’; and 

■ d. Revising paragraph (e) to read as 

follows: 

22.1006 Solicitation provisions and 

contract clauses. 

(a)(1) The contracting officer shall 

insert the clause at 52.222–41, Service 

Contract Act of 1965, in solicitations 

and contracts if the contract is subject 

to the Act and is—

(i) Over $2,500; or 

(ii) For an indefinite dollar amount 

and the contracting officer does not 

know in advance that the contract 

amount will be $2,500 or less. 

(2) If the solicitation includes the 

provision at 52.222–48, Exemption from 

Application of the Service Contract Act 

to Contracts for Maintenance, 

Calibration, or Repair of Certain 

Equipment—Certification, or 52.222–52, 

Exemption from Application of the 

Service Contract Act to Contracts for 

Certain Services—Certification, the 

contracting officer shall not insert the 

clause at 52.222–41 (or any of the 

associated Service Contract Act clauses 

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prescribed in this section for possible 

use when 52.222–41 applies) in the 

resultant contract unless the contracting 

officer determines, in accordance with 

paragraphs (c)(3) or (d)(3) of subsection 

22.1003–4, that the Service Contract Act 

applies to the contract. (In such case, do 

not insert the clause at 52.222–51, 

Exemption from Application of the 

Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment—Requirements, or 

52.222–53, Exemption from Application 

of the Service Contract Act to Contracts 

for Certain Services—Requirements, in 

the contract, in accordance with the 

prescription at paragraph (e)(2) or (e)(4) 

of this subsection). 

* * * * * 

(e)(1) The contracting officer shall 

insert the provision at 52.222–48, 

Exemption from Application of the 

Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment—Certification, in 

solicitations that include the clause at 

52.222–41, Service Contract Act of 1965, 

but the contract may be exempt from the 

Service Contract Act in accordance with 

22.1003–4(c). 

(2) The contracting officer shall insert 

the clause at 52.222–51, Exemption 

from Application of the Service Contract 

Act to Contracts for Maintenance, 

Calibration, or Repair of Certain 

Equipment—Requirements, in 

solicitations that include the provision 

at 52.222–48, and resulting contracts in 

which the contracting officer has 

determined, in accordance with 

22.1003–4(c)(3), that the Service 

Contract Act does not apply. 

(3) Insert the provision at 52.222–52, 

Exemption from Application of the 

Service Contract Act to Contracts for 

Certain Services—Certification, in 

solicitations that include the clause at 

52.222–41, Service Contract Act of 1965, 

but the contract may be exempt from the 

Service Contract Act in accordance with 

22.1003–4(d). 

(4) The contracting officer shall insert 

the clause at 52.222–53, Exemption 

from Application of the Service Contract 

Act to Contracts for Certain Services—

Requirements, in solicitations that 

include the provision at 52.222–52, and 

resulting contracts in which the 

contracting officer has determined, in 

accordance with 22.1003–4(d)(3), that 

the Service Contract Act does not apply. 

* * * * * 

22.1008–2 [Amended] 

■ 11. Amend section 22.1008–2 by 

removing from the last sentence of 

paragraph (d)(1) ‘‘, as amended’’. 

22.1018 [Amended] 

■ 12. Amend section 22.1018 by 

removing from paragraph (b) ‘‘, as 

amended’’. 

22.1019 [Amended] 

■ 13. Amend section 22.1019 by 

removing from paragraphs (a), in the 

first sentence, and (c) ‘‘, as amended’’. 

22.1020 [Amended] 

■ 14. Amend section 22.1020 by 

removing ‘‘, as amended’’. 

22.1022 [Amended] 

■ 15. Amend section 22.1022 by 

removing ‘‘Assistant’’ and ‘‘Board of 

Service Contract Appeals’’ and adding 

‘‘Deputy’’ and ‘‘Administrative Review 

Board’’ in their places, respectively. 

22.1023 [Amended] 

■ 16. Amend section 22.1023 by 

removing ‘‘, as amended’’. 

22.1026 [Amended] 

■ 17. Amend section 22.1026 by 

removing ‘‘as amended,’’. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.212–1 [Amended] 

■ 18. Amend section 52.212–1 by 

revising the date of the clause to read 

‘‘(Nov 2007)’’; and by removing from 

paragraph (b)(8) ‘‘52.212–3(k)’’ and 

adding ‘‘52.212–3(l)’’ in its place. 

■ 19. Amend section 52.212–3 by—

■ a. Revising the date of the clause; 

■ b. Removing from the introductory 

text of the clause ‘‘paragraph (k)’’ and 

‘‘through (j)’’ and adding ‘‘paragraph (l)’’

and ‘‘through (k)’’ in its place, 

respectively; 

■ c. Redesignating paragraph (k) as 

paragraph (l); removing from the newly 

designated paragraph (l)(1) ‘‘paragraph 

(k)(2)’’ and adding ‘‘paragraph (l)(2)’’ in 

its place, and in the newly designated 

paragraph (l)(2), in the bracketed 

paragraph, removing ‘‘through (j)’’ and 

adding ‘‘through (k)’’ in its place; and 

■ d. Adding a new paragraph (k) to read 

as follows: 

52.212—3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

OFFEROR REPRESENTATIONS AND 

CERTIFICATIONS—COMMERCIAL ITEMS 

‘‘(Nov 2007)’’

* * * * * 

(k) Certificates regarding exemptions from 

the application of the Service Contract Act. 

(Certification by the offeror as to its 

compliance with respect to the contract also 

constitutes its certification as to compliance 

by its subcontractor if it subcontracts out the 

exempt services.) [The contracting officer is 

to check a box to indicate if paragraph (k)(1) 

or (k)(2) applies.] 

b (1) Maintenance, calibration, or repair of 

certain equipment as described in FAR 

22.1003–4(c)(1). The offeror b does b does 

not certify that—

(i) The items of equipment to be serviced 

under this contract are used regularly for 

other than Governmental purposes and are 

sold or traded by the offeror in substantial 

quantities to the general public in the course 

of normal business operations; 

(ii) The services will be furnished at prices 

which are, or are based on, established 

catalog or market prices (see FAR 22.1003–

4(c)(2)(ii)) for the maintenance, calibration, 

or repair of such equipment; and 

(iii) The compensation (wage and fringe 

benefits) plan for all service employees 

performing work under the contract will be 

the same as that used for these employees 

and equivalent employees servicing the same 

equipment of commercial customers. 

b (2) Certain services as described in FAR 

22.1003–4(d)(1). The offeror b does b does 

not certify that—

(i) The services under the contract are 

offered and sold regularly to nonGovernmental customers, and are provided 

by the offeror (or subcontractor in the case of 

an exempt subcontract) to the general public 

in substantial quantities in the course of 

normal business operations; 

(ii) The contract services will be furnished 

at prices that are, or are based on, established 

catalog or market prices (see FAR 22.1003–

4(d)(2)(iii)); 

(iii) Each service employee who will 

perform the services under the contract will 

spend only a small portion of his or her time 

(a monthly average of less than 20 percent of 

the available hours on an annualized basis, 

or less than 20 percent of available hours 

during the contract period if the contract 

period is less than a month) servicing the 

Government contract; and 

(iv) The compensation (wage and fringe 

benefits) plan for all service employees 

performing work under the contract is the 

same as that used for these employees and 

equivalent employees servicing commercial 

customers. 

(3) If paragraph (k)(1) or (k)(2) of this 

clause applies—

(i) If the offeror does not certify to the 

conditions in paragraph (k)(1) or (k)(2) and 

the Contracting Officer did not attach a 

Service Contract Act wage determination to 

the solicitation, the offeror shall notify the 

Contracting Officer as soon as possible; and 

(ii) The Contracting Officer may not make 

an award to the offeror if the offeror fails to 

execute the certification in paragraph (k)(1) 

or (k)(2) of this clause or to contact the 

Contracting Officer as required in paragraph 

(k)(3)(i) of this clause. 

* * * * * 

■ 20. Amend section 52.212–5 by—

■ a. Revising the date of the clause; 

■ b. Revising paragraph (c)(1), 

redesignating paragraph (c)(5) as (c)(7), 

and adding new paragraphs (c)(5) and 

(c)(6); and 

■ c. Revising paragraph (e)(1)(vi), and 

redesignating paragraph (e)(1)(viii) as 

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(e)(1)(x), and adding new paragraphs 

(e)(1)(viii) and (e)(1)(ix). 

■ The revised and added text reads 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 ‘‘(Nov 2007)’’

* * * * * 

(c) * * * 

lll (1) 52.222–41, Service Contract Act 

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

* * * * * 

lll (5) 52.222–51, Exemption from 

Application of the Service Contract Act to 

Contracts for Maintenance, Calibration, or 

Repair of Certain Equipment—Requirements 

‘‘([Insert Abbreviated Month and Year of Date 

of Publication in the Federal Register]’’ (41 

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

lll (6) 52.222–53, Exemption from 

Application of the Service Contract Act to 

Contracts for Certain Services—Requirements 

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

* * * * * 

(e)(1) * * * 

(vi) 52.222–41, Service Contract Act of 

1965 ‘‘([Insert Abbreviated Month and Year 

of Date of Publication in the Federal 

Register])’’ (41 U.S.C. 351, et seq.). 

* * * * * 

(viii) 52.222–51, 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.). 

(ix) 52.222–53, Exemption from 

Application of the Service Contract Act to 

Contracts for Certain Services—Requirements 

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

* * * * * 

■ 21. Amend section 52.213–4 by 

revising the date of the clause; and 

revising the first sentence of paragraph 

(b)(1)(vi) to read as follows: 

52.213–4 Terms and Conditions—

Simplified Acquisitions (Other Than 

Commercial Items). 

* * * * * 

TERMS AND CONDITIONS—SIMPLIFIED 

ACQUISITIONS (OTHER THAN 

COMMERCIAL ITEMS) ‘‘(Nov 2007)’’

* * * * * 

(b) * * * 

(1) * * * 

(vi) 52.222–41, Service Contract Act of 

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

* * * 

* * * * * 

■ 22. Amend section 52.222–41 by—

■ a. Revising the section heading; 

■ b. Revising the clause heading and the 

date; and 

■ c. Amending paragraph (a) by—

■ 1. Revising the introductory text; 

■ 2. Revising the definitions ‘‘Act’’ and 

‘‘Contractor’’; 

■ 3. Removing from the definition 

‘‘Service employee’’ the words ‘‘, as 

used in this clause,’’; and 

■ 4. Removing from paragraph (f) 

‘‘Board of Service Contract Appeals’’

and adding ‘‘Administrative Review 

Board’’ in its place. 

■ The revised text reads as follows: 

52.222–41 Service Contract Act of 1965. 

* * * * * 

SERVICE CONTRACT ACT OF 1965 ‘‘(Nov 

2007)’’

(a) Definitions. As used in this clause—

Act means the Service Contract Act of 1965 

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

Contractor when this clause is used in any 

subcontract, shall be deemed to refer to the 

subcontractor, except in the term 

‘‘Government Prime Contractor.’’

* * * * * 

■ 23. Revise section 52.222–48 to read 

as follows: 

52.222–48 Exemption from Application of 

the Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment Certification. 

As prescribed in 22.1006(e)(1), insert 

the following provision: 

EXEMPTION FROM APPLICATION OF 

THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR MAINTENANCE, 

CALIBRATION, OR REPAIR OF CERTAIN 

EQUIPMENT CERTIFICATION ‘‘(Nov 2007)’’

(a) The offeror shall check the following 

certification: 

CERTIFICATION 

The offeror b does b does not certify 

that—

(1) The items of equipment to be serviced 

under this contract are used regularly for 

other than Government purposes, and are 

sold or traded by the offeror in substantial 

quantities to the general public in the course 

of normal business operations; 

(2) The services will be furnished at prices 

which are, or are based on, established 

catalog or market prices for the maintenance, 

calibration, or repair of equipment. 

(i) An ‘‘established catalog price’’ is a price 

included in a catalog, price list, schedule, or 

other form that is regularly maintained by the 

manufacturer or the offeror, is either 

published or otherwise available for 

inspection by customers, and states prices at 

which sales currently, or were last, made to 

a significant number of buyers constituting 

the general public. 

(ii) An ‘‘established market price’’ is a 

current price, established in the usual course 

of trade between buyers and sellers free to 

bargain, which can be substantiated from 

sources independent of the manufacturer or 

offeror; and 

(3) The compensation (wage and fringe 

benefits) plan for all service employees 

performing work under the contract are the 

same as that used for these employees and 

equivalent employees servicing the same 

equipment of commercial customers. 

(b) Certification by the offeror as to its 

compliance with respect to the contract also 

constitutes its certification as to compliance 

by its subcontractor if it subcontracts out the 

exempt services. If the offeror certifies to the 

conditions in paragraph (a) of this provision, 

and the Contracting Officer determines in 

accordance with FAR 22.1003–4(c)(3) that 

the Service Contract Act—

(1) Will not apply to this offeror, then the 

Service Contract Act of 1965 clause in this 

solicitation will not be included in any 

resultant contract to this offeror; or 

(2) Will apply to this offeror, then the 

clause at 52.222–51, Exemption from 

Application of the Service Contract Act to 

Contracts for Maintenance, Calibration, or 

Repair of Certain Equipment—Requirements, 

in this solicitation will not be included in 

any resultant contract awarded to this offeror, 

and the offeror may be provided an 

opportunity to submit a new offer on that 

basis. 

(c) If the offeror does not certify to the 

conditions in paragraph (a) of this 

provision—

(1) The clause in this solicitation at 

52.222–51, Exemption from Application of 

the Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment—Requirements, will not 

be included in any resultant contract 

awarded to this offeror; and 

(2) The offeror shall notify the Contracting 

Officer as soon as possible, if the Contracting 

Officer did not attach a Service Contract Act 

wage determination to the solicitation. 

(d) The Contracting Officer may not make 

an award to the offeror, if the offeror fails to 

execute the certification in paragraph (a) of 

this provision or to contact the Contracting 

Officer as required in paragraph (c) of this 

provision. 

(End of provision) 

■ 24. Add sections 52.222–51, 52.222–

52, and 52.222–53 to read as follows: 

52.222–51 Exemption from Application of 

the Service Contract Act to Contracts for 

Maintenance, Calibration, or Repair of 

Certain Equipment—Requirements. 

As prescribed in 22.1006(e)(2), insert 

the following clause: 

EXEMPTION FROM APPLICATION OF 

THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR MAINTENANCE, 

CALIBRATION, OR REPAIR OF CERTAIN 

EQUIPMENT—REQUIREMENTS ‘‘(Nov 

2007)’’

(a) The items of equipment to be serviced 

under this contract are used regularly for 

other than Government purposes, and are 

sold or traded by the Contractor in 

substantial quantities to the general public in 

the course of normal business operations. 

(b) The services shall be furnished at prices 

which are, or are based on, established 

catalog or market prices for the maintenance, 

calibration, or repair of equipment. 

(1) An ‘‘established catalog price’’ is a price 

included in a catalog, price list, schedule, or 

other form that is regularly maintained by the 

manufacturer or the Contractor, is either 

published or otherwise available for 

inspection by customers, and states prices at 

which sales currently, or were last, made to 

a significant number of buyers constituting 

the general public. 

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(2) An ‘‘established market price’’ is a 

current price, established in the usual course 

of trade between buyers and sellers free to 

bargain, which can be substantiated from 

sources independent of the manufacturer or 

Contractor. 

(c) The compensation (wage and fringe 

benefits) plan for all service employees 

performing work under the contract shall be 

the same as that used for these employees 

and for equivalent employees servicing the 

same equipment of commercial customers. 

(d) The Contractor is responsible for 

compliance with all the conditions of this 

exemption by its subcontractors. The 

Contractor shall determine the applicability 

of this exemption to any subcontract on or 

before subcontract award. In making a 

judgment that the exemption applies, the 

Contractor shall consider all factors and 

make an affirmative determination that all of 

the conditions in paragraphs (a) through (c) 

of this clause will be met. 

(e) If the Department of Labor determines 

that any conditions for exemption in 

paragraphs (a) through (c) of this clause have 

not been met, the exemption shall be deemed 

inapplicable, and the contract shall become 

subject to the Service Contract Act. In such 

case, the procedures at 29 CFR 4.123(e)(1)(iv) 

and 29 CFR 4.5(c) will be followed. 

(f) The Contractor shall include the 

substance of this clause, including this 

paragraph (f), in subcontracts for exempt 

services under this contract. 

(End of clause) 

52.222–52 Exemption from Application of 

the Service Contract Act to Contracts for 

Certain Services—Certification. 

As prescribed in 22.1006(e)(3), insert 

the following provision: 

EXEMPTION FROM APPLICATION OF 

THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR CERTAIN SERVICES—

CERTIFICATION ‘‘(Nov 2007)’’

(a) The offeror shall check the following 

certification: 

CERTIFICATION 

The offeror b does b does not certify 

that—

(1) The services under the contract are 

offered and sold regularly to nonGovernmental customers, and are provided 

by the offeror (or subcontractor in the case of 

an exempt subcontract) to the general public 

in substantial quantities in the course of 

normal business operations; 

(2) The contract services are furnished at 

prices that are, or are based on, established 

catalog or market prices. An ‘‘established 

catalog price’’ is a price included in a catalog, 

price list, schedule, or other form that is 

regularly maintained by the manufacturer or 

the offeror, is either published or otherwise 

available for inspection by customers, and 

states prices at which sales currently, or were 

last, made to a significant number of buyers 

constituting the general public. An 

‘‘established market price’’ is a current price, 

established in the usual course of ordinary 

and usual trade between buyers and sellers 

free to bargain, which can be substantiated 

from sources independent of the 

manufacturer or offeror; 

(3) Each service employee who will 

perform the services under the contract will 

spend only a small portion of his or her time 

(a monthly average of less than 20 percent of 

the available hours on an annualized basis, 

or less than 20 percent of available hours 

during the contract period if the contract 

period is less than a month) servicing the 

Government contract; and 

(4) The offeror uses the same compensation 

(wage and fringe benefits) plan for all service 

employees performing work under the 

contract as the offeror uses for these 

employees and for equivalent employees 

servicing commercial customers. 

(b) Certification by the offeror as to its 

compliance with respect to the contract also 

constitutes its certification as to compliance 

by its subcontractor if it subcontracts out the 

exempt services. If the offeror certifies to the 

conditions in paragraph (a) of this provision, 

and the Contracting Officer determines in 

accordance with FAR 22.1003–4(d)(3) that 

the Service Contract Act—

(1) Will not apply to this offeror, then the 

Service Contract Act of 1965 clause in this 

solicitation will not be included in any 

resultant contract to this offeror; or 

(2) Will apply to this offeror, then the 

clause at FAR 52.222–53, Exemption from 

Application of the Service Contract Act to 

Contracts for Certain Services—

Requirements, in this solicitation will not be 

included in any resultant contract awarded to 

this offer, and the offeror may be provided an 

opportunity to submit a new offer on that 

basis. 

(c) If the offeror does not certify to the 

conditions in paragraph (a) of this 

provision—

(1) The clause of this solicitation at 

52.222–53, Exemption from Application of 

the Service Contract Act to Contracts for 

Certain Services—Requirements, will not be 

included in any resultant contract to this 

offeror; and 

(2) The offeror shall notify the Contracting 

Officer as soon as possible if the Contracting 

Officer did not attach a Service Contract Act 

wage determination to the solicitation. 

(d) The Contracting Officer may not make 

an award to the offeror, if the offeror fails to 

execute the certification in paragraph (a) of 

this provision or to contact the Contracting 

Officer as required in paragraph (c) of this 

provision. 

(End of provision) 

52.222–53 Exemption from Application of 

the Service Contract Act to Contracts for 

Certain Services—Requirements. 

As prescribed in 22.1006(e)(4), insert 

the following clause: 

EXEMPTION FROM APPLICATION OF 

THE SERVICE CONTRACT ACT TO 

CONTRACTS FOR CERTAIN SERVICES—

REQUIREMENTS ‘‘(Nov 2007)’’

(a) The services under this contract are 

offered and sold regularly to nonGovernmental customers, and are provided 

by the Contractor to the general public in 

substantial quantities in the course of normal 

business operations. 

(b) The contract services are furnished at 

prices that are, or are based on, established 

catalog or market prices. An ‘‘established 

catalog price’’ is a price included in a catalog, 

price list, schedule, or other form that is 

regularly maintained by the manufacturer or 

the Contractor, is either published or 

otherwise available for inspection by 

customers, and states prices at which sales 

currently, or were last, made to a significant 

number of buyers constituting the general 

public. An ‘‘established market price’’ is a 

current price, established in the usual course 

of ordinary and usual trade between buyers 

and sellers free to bargain, which can be 

substantiated from sources independent of 

the manufacturer or Contractor. 

(c) Each service employee who will 

perform the services under the contract will 

spend only a small portion of his or her time 

(a monthly average of less than 20 percent of 

the available hours on an annualized basis, 

or less than 20 percent of available hours 

during the contract period if the contract 

period is less than a month) servicing the 

Government contract. 

(d) The Contractor uses the same 

compensation (wage and fringe benefits) plan 

for all service employees performing work 

under the contract as the Contractor uses for 

these employees and for equivalent 

employees servicing commercial customers. 

(e)(1) Any subcontract for these exempt 

services shall be awarded on a sole-source 

basis; or 

(2) Except for services identified in FAR 

22.1003–4(d)(1)(iv), the subcontractor shall 

be selected for award based on other factors 

in addition to price or cost with the 

combination of other factors at least as 

important as price or cost in selecting the 

Contractor. 

(f) The Contractor is responsible for 

compliance with all the conditions of this 

exemption by its subcontractors. The 

Contractor shall determine in advance, based 

on the nature of the subcontract requirements 

and knowledge of the practices of likely 

subcontractors, that all or nearly all likely 

subcontractors will meet the conditions in 

paragraphs (a) through (d) of this clause. If 

the services are currently being performed 

under a subcontract, the Contractor shall 

consider the practices of the existing 

subcontractor in making a determination 

regarding the conditions in paragraphs (a) 

through (d) of this clause. If the Contractor 

has reason to doubt the validity of the 

certification, the requirements of the Service 

Contract Act shall be included in the 

subcontract. 

(g) If the Department of Labor determines 

that any conditions for exemption at 

paragraphs (a) through (e) of this clause have 

not been met, the exemption shall be deemed 

inapplicable, and the contract shall become 

subject to the Service Contract Act. In such 

case, the procedures in at 29 CFR 

4.123(e)(2)(iii) and 29 CFR 4.5(c) will be 

followed. 

(h) The Contractor shall include the 

substance of this clause, including this 

paragraph (h), in subcontracts for exempt 

services under this contract. 

(End of clause) 

[FR Doc. 07–5481 Filed 11–6–07; 8:45 am] 

BILLING CODE 6820–EP–S 

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