2626 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Chapter 1

Federal Acquisition Circular 90–37

Introduction

AGENCY: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Summary presentation of final

and interim rules with request for

comment.

SUMMARY: This document summarizes

the Federal Acquisition Regulation

(FAR) rules which follow it in the order

listed below. The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council are

issuing Federal Acquisition Circular

(FAC) 90–37 to amend the FAR.

DATES: For effective dates and comment

dates, see separate documents which

follow. Please cite FAC 90–37 and the

appropriate FAR case number(s) in all

correspondence related to the following

documents.

FOR FURTHER INFORMATION CONTACT:

The analyst whose name appears (in the

table below) in relation to each FAR

case or subject area. For general

information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405, (202) 501–4755.

Please cite FAC 90–37 and specific FAR

case number(s).

SUPPLEMENTARY INFORMATION: Federal

Acquisition Circular 90–37 amends the

Federal Acquisition Regulation (FAR) as

specified below:

Item Subject FAR case Analyst

I ............ Inherently Governmental Functions ............................................................................................................ 92–051 O’Such.

II ........... Javits-Wagner-O’Day Program ................................................................................................................... 91–108 Klein.

III .......... Made in America Labels/Unfair Trade Practices ........................................................................................ 93–301/

93–306

De Stefano.

IV ......... Debarment and Suspension Certificate ...................................................................................................... 92–615 De Stefano.

V .......... Nonprofit Institutions Clause Prescription ................................................................................................... 92–010 Olson.

VI ......... Field Pricing Support Request .................................................................................................................... 95–006 Olson.

VII ........ Subcontract Proposal Audits ...................................................................................................................... 92–002 Olson.

VIII ....... Overhead Should—Cost Reviews .............................................................................................................. 92–017 Olson.

IX ......... SBA Responsibility, Certificate of Competency Requests ......................................................................... 92–606 Klein.

X .......... Mentor Prote ́ge ́ Program (Interim) .............................................................................................................. 93–308 Klein.

XI ......... Subcontracting Plans .................................................................................................................................. 92–019 Klein.

XII ........ Insurance—Liability to Third Persons (under Cost Reimbursement Contracts) ........................................ 92–014 O’Such.

XIII ....... Availability of Accounting Guide ................................................................................................................. 94–002 Olson.

XIV ....... Nonallowability of Excise Taxes on Nondeductible Contributions to Deferred Compensation Plans ........ 92–604 Olson.

XV ........ Contractors’ Purchasing Systems Reviews and Subcontractor Consent ................................................... 92–040 Klein.

Item I—Inherently Governmental

Functions (FAR Case 92–051)

This final rule amends FAR Parts 7,

11, and 37 to provide policy and

procedures relating to inherently

governmental functions. Subpart 7.5 is

added to provide a definition of

‘‘inherently governmental functions’’

and to provide a list of examples of

functions considered to be inherently

governmental, or which shall be treated

as such, and a list of certain services

and actions that are not considered to be

inherently governmental functions.

Item II—Javits-Wagner-O’Day Program

(JWOD) (FAR Case 91–108)

This final rule amends FAR Parts 8,

51, and 52 to clarify that the

Government’s statutory obligation to

purchase certain items from the

Committee for Purchase from People

Who Are Blind or Severely Disabled

also applies when contractors purchase

items for Government use.

Item III—Made in America Labels/

Unfair Trade Practices (FAR Cases 93–

301 and 93–306)

This final rule amends FAR 9.403,

9.406, and 9.407 to add language

concerning suspension or debarment of

contractors who engage in unfair trade

practices and/or intentionally affix a

label bearing a ‘‘Made in America’’

inscription (or any inscription having

the same meaning) to a product sold in

or shipped to the United States.

Item IV—Debarment and Suspension

Certificate (FAR Case 92–615)

This final rule amends FAR 9.406–2,

9.407–2, and 52.209–5 to add ‘‘tax

evasion’’ as a cause for debarment or

suspension.

Item V—Nonprofit Institutions Clause

Prescription (FAR Case 92–010)

This final rule amends the

prescriptions for use of the clauses at

52.215–27, Termination of Defined

Benefit Pension Plans, and 52.215–39,

Reversion or Adjustment of Plans for

Postretirement Benefits Other Than

Pensions (PRB), and also clarifies the

language of the clauses.

Item VI—Field Pricing Support Request

(FAR Case 95–006)

This final rule revises FAR 15.805–

5(c)(1) to clarify that contracting officers

may send audit requests directly to the

cognizant audit office, if no other type

of field pricing support is required.

Item VII—Subcontract Proposal Audits

(FAR Case 92–002)

This final rule amends FAR 15.806–

3, Field pricing reports, to add two

additional examples of when field

pricing support audits of subcontract

proposals may be appropriate. The first

example is when the contractor or

higher tier subcontractor has been cited

for having significant estimating system

deficiencies in the area of subcontract

pricing. The second example is when a

lower tier subcontractor has been cited

as having significant estimating system

deficiencies.

Item VIII—Overhead Should-Cost

Reviews (FAR Case 92–017)

This final rule amends FAR 15.810 to

add guidance on overhead should-cost

reviews.

Item IX—SBA Responsibility,

Certificate of Competency Requests

(FAR Case 92–606)

This final rule amends FAR 19.602–

2 to reflect the approval of Small

Business Administration regional offices

to issue Certificate of Competency

(COC) Determinations as provided in 13

CFR Part 125.
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2627

Item X—Mentor Prote ́ge ́ Program (FAR

Case 93–308)

This interim rule amends FAR 19.702,

Statutory requirements, to allow mentor

firms participating in the Department of

Defense (DOD) Mentor-Prote ́ge ́ Program

to be granted credit toward

subcontracting goals under small

business subcontracting plans entered

into with any executive agency. FAR

52.244–5, Competition in

Subcontracting, is amended to permit

DOD mentor firms to award

subcontracts on a noncompetitive basis

to prote ́ge ́ firms under DOD and other

contracts.

Item XI—Subcontracting Plans (FAR

Case 92–019)

This final rule amends FAR 19.705–

2(d) to expand the circumstances when

subcontracting plans may be required

from and negotiated with more than the

apparently successful offeror. The

clause prescription at 19.708(b)(1) and

Alternate II for the clause at 52.219–9

are added for use when subcontracting

plans are required with initial

proposals.

Item XII—Insurance—Liability to Third

Persons (under Cost Reimbursement

Contracting) (FAR Case 92–014)

This final rule deletes the provision at

FAR 52.228–6 and makes related

changes at 28.311, 52.228–7, 52.245–7,

and 52.245–10 to remove obsolete

language pertaining to liability

insurance under cost-reimbursement

contracts.

Item XIII—Availability of Accounting

Guide (FAR Case 94–002)

This final rule amends FAR Part 31 to

add a new section 31.001 advising

contractors on how to obtain a copy of

an informational guide entitled

‘‘Guidance for New Contractors.’’

Item XIV—Nonallowability of Excise

Taxes on Nondeductible Contributions

to Deferred Compensation Plans (FAR

Case 92–604)

This final rule amends FAR 31.205–

41 to designate excise taxes at subtitle

D, chapter 43 of the Internal Revenue

Code, as unallowable costs.

Item XV—Contractors’ Purchasing

Systems Reviews and Subcontractor

Consent (FAR Case 92–40)

This final rule amends FAR Parts 44

and 52 to increase the thresholds for

Contractors’ Purchasing Systems

Reviews (CPSR’s) and subcontract

consent. The threshold at 44.302(a) for

performing CPSR’s is raised from $10

million to $25 million. The threshold at

52.244–2(a) for consent to subcontract

under cost-reimbursement and letter

prime contracts for fabrication,

purchase, rental, installation, or other

acquisition for special test equipment is

raised from $10,000 to $25,000. The

threshold at 52.244–2(b)(1) requiring

additional information on certain

subcontracts is raised from $10,000 to

$25,000.

Dated: January 11, 1996.

Edward C. Loeb,

Acting Director, Office of Federal Acquisition

Policy.

Federal Acquisition Circular

Number 90–37

Federal Acquisition Circular (FAC)

90–37 is issued under the authority of

the Secretary of Defense, the

Administrator of General Services, and

the Administrator for the National

Aeronautics and Space Administration.

Unless otherwise specified, all

Federal Acquisition Regulation (FAR)

and other directive material contained

in FAC 90–37 is effective March 26,

1996, except for Item X which is

effective January 26, 1996.

Dated: January 4, 1996.

Eleanor R. Spector,

Director, Defense Procurement.

Dated: January 17, 1996.

Ada M. Ustad,

Deputy Associate Administrator, Office of

Acquisition Policy, General Services

Administration.

Dated: January 12, 1996.

Deidre A. Lee,

Associate Administrator for Procurement,

National Aeronautics and Space

Administration.

[FR Doc. 96–1014 Filed 1–25–96; 8:45 am]

BILLING CODE 6820–EP–M

DEPARTMENT OF DEFENSE

GENERAL SERVICES

ADMINISTRATION

NATIONAL AERONAUTICS AND

SPACE ADMINISTRATION

48 CFR Parts 7, 11, and 37

[FAC 90–37; FAR Case 92–051 Item I]

RIN 9000–AF56

Federal Acquisition Regulation;

Inherently Governmental Functions

AGENCIES: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Final rule.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed to revise the Federal Acquisition

Regulation (FAR) to implement Office of

Federal Procurement Policy (OFPP)

Policy Letter 92–1, Inherently

Governmental Functions. This rule

provides a definition of, and internal

Government responsibilities and

procedures relating to, inherently

governmental functions. This regulatory

action was not subject to Office of

Management and Budget review under

Executive Order 12866, dated

September 30, 1993.

EFFECTIVE DATE: March 26, 1996.

FOR FURTHER INFORMATION CONTACT:

Mr. Peter O’Such (202) 501–1759 in

reference to this FAR case. For general

information, contact the FAR

Secretariat, Room 4037, GS Building,

Washington, DC 20405 (202) 501–4755.

Please cite FAC 90–37, FAR case 92–

051.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule implements the

requirements of the Office of Federal

Procurement Policy (OFPP) Policy

Letter 92–1, Inherently Governmental

Functions. The OFPP published its

proposed policy letter for public

comment in the Federal Register at 56

FR 65279, December 16, 1991. OFPP

evaluated public comments and

published the final policy letter in the

Federal Register at 57 FR 45096,

September 30, 1992.

A FAR proposed rule to implement

the policy letter was published in the

Federal Register at 59 FAR 29696, June

8, 1994. Thirteen sources submitted

public comments. Minor revisions were

made to the rule as a result of those

comments.

B. Regulatory Flexibility Act

The Department of Defense, the

General Services Administration, and

the National Aeronautics and Space

Administration certify that this final

rule will not have a significant

economic impact on a substantial

number of small entities under the

Regulatory Flexibility Act, 5 U.S.C. 601,

et seq., because the rule pertains to

internal Government responsibilities

and procedures relating to inherently

governmental functions.

C. Paperwork Reduction Act

The Paperwork Reduction Act does

not apply because the changes to the

FAR do not impose recordkeeping or

information collection requirements, or

collections of information from offerors,