2630 Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations

their actions could be construed as acts

of Government officials unless, in the

judgment of the agency, no harm can

come from failing to identify

themselves; and

(c) Require suitable marking of all

documents or reports produced by

contractors.

PART 37—SERVICE CONTRACTING

7. Section 37.102 is revised to read as

follows:

37.102 Policy.

(a) Agencies shall generally rely on

the private sector for commercial

services (see OMB Circular No. A–76,

Performance of Commercial Activities

and subpart 7.3).

(b) Agencies shall not award a

contract for the performance of an

inherently governmental function (see

subpart 7.5).

(c) Non-personal service contracts are

proper under general contracting

authority.

8. Section 37.114 is added to read as

follows:

37.114 Special acquisition requirements.

Contracts for services which require

the contractor to provide advice,

opinions, recommendations, ideas,

reports, analyses, or other work

products have the potential for

influencing the authority,

accountability, and responsibilities of

Government officials. These contracts

require special management attention to

ensure that they do not result in

performance of inherently governmental

functions by the contractor and that

Government officials properly exercise

their authority. Agencies must ensure

that—

(a) A sufficient number of qualified

Government employees are assigned to

oversee contractor activities, especially

those that involve support of

government policy or decision making.

During performance of service contracts,

the functions being performed shall not

be changed or expanded to become

inherently governmental.

(b) A greater scrutiny and an

appropriate enhanced degree of

management oversight is exercised

when contracting for functions that are

not inherently governmental but closely

support the performance of inherently

governmental functions (see 7.503(c)).

(c) All contractor personnel attending

meetings, answering Government

telephones, and working in other

situations where their contractor status

is not obvious to third parties are

required to identify themselves as such

to avoid creating an impression in the

minds of members of the public or

Congress that they are Government

officials, unless, in the judgment of the

agency, no harm can come from failing

to identify themselves. They must also

ensure that all documents or reports

produced by contractors are suitably

marked as contractor products or that

contractor participation is appropriately

disclosed.

[FR Doc. 96–1015 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 8, 51, and 52

[FAC 90–37; FAR Case 91–108; Item II]

RIN 9000–AF71

Federal Acquisition Regulation; JavitsWagner-O’Day Program (JWOD)

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 on a final rule amending the

Federal Acquisition Regulation (FAR) to

clarify that the Government’s obligation

to purchase items from statutorily

mandated sources of supply also applies

when contractors purchase items for

Government use. 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:

Ms. Linda Klein at (202) 501–3775 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 91–

108.Q02

SUPPLEMENTARY INFORMATION:

A. Background

A proposed rule was published in the

Federal Register at 59 FR 14454, March

28, 1994. The rule amended FAR Parts

8, 51, and 52 to clarify that the statutory

obligation for Government agencies 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.

Five substantive comments from three

sources were received during the public

comment period. Clarifying revisions

have been made to §§ 51.101(c) and

52.208–9 of the rule as a result of the

public 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 it merely clarifies that

contractors must purchase certain items

from the same statutorily mandated

sources that Government agencies are

required to use, when a contractor is

performing an agency’s supply function.

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,

contractors, or members of the public

which require the approval of OMB

under 44 U.S.C. 3501, et seq.

List of Subjects in 48 CFR Parts 8, 51,

and 52

Government procurement.

Dated: January 11, 1996.

Edward C. Loeb,

Acting Director, Office of Federal Acquisition

Policy.

Therefore, 48 CFR parts 8, 51, and 52

are amended as set forth below:

1. The authority citation for 48 CFR

parts 8, 51, and 52 continues to read as

follows:

Authority: 40 U.S.C. 486(c); 10 U.S.C.

chapter 137; and 42 U.S.C. 2473(c).

PART 8—REQUIRED SOURCES OF

SUPPLIES AND SERVICES

2. Section 8.001 is amended by

revising paragraphs (a)(2) (ii) and (iii)

and adding paragraph (c) to read as

follows:

8.001 Priorities for use of Government

supply sources.

(a) * * *

(2) * * *

(ii) Mandatory Federal Supply

Schedules (see subpart 8.4);

(iii) Optional use Federal Supply

Schedules (see subpart 8.4); and

* * * * *

(c) The statutory obligation for

Government agencies to satisfy their
Federal Register / Vol. 61, No. 18 / Friday, January 26, 1996 / Rules and Regulations 2631

requirements for supplies available from

the Committee for Purchase From

People Who Are Blind or Severely

Disabled also applies when contractors

purchase the supply items for

Government use.

3. Section 8.003 is added to read as

follows:

8.003 Contract clause.

The contracting officer shall insert the

clause at 52.208–9, Contractor Use of

Mandatory Sources of Supply, in

solicitations and contracts which

require a contractor to purchase supply

items for Government use that are

available from the Committee for

Purchase from People Who Are Blind or

Severely Disabled. The contracting

officer shall identify in the contract

schedule the items which must be

purchased from a mandatory source and

the specific source.

PART 51—USE OF GOVERNMENT

SOURCES BY CONTRACTORS

4. Section 51.101 is amended by

adding paragraph (c) to read as follows:

51.101 Policy.

* * * * *

(c) Contracting officers shall authorize

contractors purchasing supply items for

Government use that are available from

the Committee for Purchase from People

Who Are Blind or Severely Disabled

(see subpart 8.7) to purchase such items

from the Defense Logistics Agency

(DLA), the General Services

Administration (GSA), and the

Department of Veterans Affairs (VA) if

they are available from these agencies

through their distribution facilities.

Mandatory supplies that are not

available from DLA/GSA/VA shall be

ordered through the appropriate central

nonprofit agency (see 52.208–9(c)).

5. Section 51.102 is amended in the

first sentence of the introductory text of

paragraph (a) by inserting after the word

‘‘sources’’ the phrase ‘‘in accordance

with 51.101 (a) or (b),’’; adding a new

second sentence; and revising paragraph

(c)(3) to read as follows:

51.102 Authorization to use Government

supply sources.

(a) * * * A written finding is not

required when authorizing use of the

Government supply sources in

accordance with 51.101(c). * * *

* * * * *

(c) * * *

(3) Approval for the contractor to use

Department of Veterans Affairs (VA)

supply sources from the Deputy

Assistant Secretary for Acquisition and

Materiel Management (Code 90), Office

of Acquisition and Materiel

Management, Department of Veterans

Affairs, 810 Vermont Avenue, NW.,

Washington, DC 20420;

* * * * *

PART 52—SOLICITATION PROVISIONS

AND CONTRACT CLAUSES

6. Section 52.208–9 is added to read

as follows:

52.208–9 Contractor Use of Mandatory

Sources of Supply.

As prescribed in 8.003, insert the

following clause:

Contractor Use Of Mandatory Sources Of

Supply (Mar 1996)

(a) Certain supplies to be provided under

this contract for use by the Government are

required by law to be obtained from the

Committee for Purchase from People Who

Are Blind or Severely Disabled (JavitsWagner-O’ Day Act (JWOD) (41 U.S.C. 48)).

Additionally, certain of these supplies are

available from the Defense Logistics Agency

(DLA), the General Services Administration

(GSA), or the Department of Veterans Affairs

(VA). The Contractor shall obtain mandatory

supplies to be provided for Government use

under this contract from the specific sources

indicated in the contract schedule.

(b) The Contractor shall immediately notify

the Contracting Officer if a mandatory source

is unable to provide the supplies by the time

required, or if the quality of supplies

provided by the mandatory source is

unsatisfactory. The Contractor shall not

purchase the supplies from other sources

until the Contracting Officer has notified the

Contractor that the mandatory source has

authorized purchase from other sources.

(c) Price and delivery information for the

mandatory supplies is available from the

Contracting Officer for the supplies obtained

through the DLA/GSA/VA distribution

facilities. For mandatory supplies that are not

available from DLA/GSA/VA, price and

delivery information is available from the

appropriate central nonprofit agency.

Payments shall be made directly to the

source making delivery. Points of contract for

JWOD central nonprofit agencies are:

(1) National Industries for the Blind (NIB)

1901 North Beauregard Street, Suite 200

Alexandria, VA 22311–1705 (703) 998–

0770

(2) NISH, 2235 Cedar Lane, Vienna, VA

22182–5200 (703) 560–6800

(End of clause)

[FR Doc. 96–1016 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 Part 9

[FAC 90–37; FAR Cases 93–301 and 93–

306; Item III]

RIN 9000–AF40

Federal Acquisition Regulation; Made

in America Labels/Unfair Trade

Practices

AGENCY: Department of Defense (DOD),

General Services Administration (GSA),

and National Aeronautics and Space

Administration (NASA).

ACTION: Interim rule adopted as final.

SUMMARY: The Civilian Agency

Acquisition Council and the Defense

Acquisition Regulations Council have

agreed on a final rule to amend the

Federal Acquisition Regulation (FAR) to

implement sections 201 and 202 of the

Defense Production Act. Section 201

directs that the FAR be amended to

address the responsibility of contractors

who engage in unfair trade practices as

defined in section 201. Section 202

directs that the FAR be amended to

address the responsibility of persons

that intentionally affix a label bearing a

fraudulent ‘‘Made in America’’

inscription to a product sold in or

shipped to the United States. This

regulatory action was not subject to

Office of Management and Budget

review under Executive Order 12866,

dated September 30, 1993.

EFFECTIVE DATE: January 26, 1996.

FOR FURTHER INFORMATION CONTACT:

Mr. Ralph De Stefano (202) 501–1758 in

reference to these combined FAR cases.

For general information, contact the

FAR Secretariat, Room 4037, GS

Building, Washington, DC 20405 (202)

501–4755. Please cite FAC 90–37, FAR

cases 93–301 and 93–306.

SUPPLEMENTARY INFORMATION:

A. Background

This final rule implements the

requirements of sections 201 and 202 of

the Defense Production Act. Section 201

of the Defense Production Act (Public

Law 102–558) provides that any

contractor who has engaged in unfair

trade practices may be found to lack

such business integrity to affect the

contractor’s responsibility to perform a

Government contract or subcontract.

Section 201 defines ‘‘unfair trade