Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 60263 

Response: The Councils believe that 

the contracting officer negotiates a fair 

and reasonable profit or fee for each 

acquisition based upon the effort and 

risk associated with that acquisition. 

Consequently, it would not be 

appropriate to encourage the use of or 

set a minimum base-fee rate, since the 

establishment of base fee is subject to 

negotiation and the specific 

circumstances of each acquisition. 

15. Eliminate Requirement Relative to 

Completing a Determination and 

Finding 

Comment: One respondent wrote that 

the requirement in the interim rule for 

a determination and finding (D&F) was 

redundant with other FAR requirements 

and increases the workload of 

overburdened contracting officers 

without providing any value added. The 

respondent recommended deleting this 

requirement in the final rule. 

Response: The Councils appreciate 

the respondent’s concern for the 

contracting officer’s workload but 

disagree with eliminating this 

requirement from the final rule. The 

completion of the D&F and Head of 

Contracting Agency approval satisfy the 

requirements in section 814 of the John 

Warner National Defense Authorization 

Act for Fiscal Year 2007 (Pub. L. 109– 

364) and section 867 of the Duncan 

Hunter National Defense Authorization 

Act for Fiscal Year 2009 (Pub. L. 110– 

417) to establish the appropriate 

approval level for using award-fee 

contracts. They are also necessary to 

ensure that the suitability factors to use 

an award-fee contract are properly 

addressed and documented because of 

the large investment of resources 

required to administer an award-fee 

contract. 

C. Regulatory Planning and Review 

This is a significant regulatory action 

and, therefore, was subject to review 

under Section 6(b) of Executive Order 

12866, Regulatory Planning and Review, 

dated September 30, 1933. This rule is 

not a major rule under 5 U.S.C. 804. 

D. 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 within the 

meaning of the Regulatory Flexibility 

Act, 5 U.S.C. 601, et seq., because the 

rule largely covers a broad range of 

aspects of award-fee contracting, whose 

upshot will be a more consistent use 

and administration of award fees 

Governmentwide which will provide a 

small benefit to all entities both large 

and small. In addition, the changes 

promulgated in this final rule do not 

directly affect the current business 

processes of Federal contractors. In the 

matter of the rule’s prohibition on the 

rollover of unearned award fee, the 

Councils believe this will have a 

negligible impact on small businesses 

for the following reasons. First, awardfee contracts are largely the province of 

large businesses with large dollar 

contracts. Second, the ability to roll over 

unearned award fee may have caused 

evaluators in the past to be more 

conservative in their ratings because of 

their awareness that contractors may 

have a second opportunity to earn 

unearned award fees. 

E. 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. chapter 35, 

et seq. 

List of Subjects in 48 CFR Part 16 

Government procurement. 

Dated: September 21, 2010. 

Edward Loeb, 

Director, Acquisition Policy Division. 

■ Accordingly, the interim rule 

published in the Federal Register at 74 

FR 52856 on October 14, 2009, is 

adopted as a final rule with the 

following changes: 

PART 16—TYPES OF CONTRACTS 

■ 1. The authority citation for 48 CFR 

part 16 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). 

16.401 [Amended] 

■ 2. Amend section 16.401 by— 

■ a. Removing from paragraph (e)(2) the 

words ‘‘performance is’’ and adding 

‘‘performance in the aggregate is’’ in its 

place each time it appears (twice); 

■ b. Removing from Table 16–1 that 

follows paragraph (e)(3)(iv) the words 

‘‘contract as’’ and adding ‘‘contract in the 

aggregate as’’ in its place each time it 

appears (five times); and 

■ c. Removing from paragraph (e)(3)(v) 

the words ‘‘performance is’’ and adding 

‘‘performance in the aggregate is’’ in its 

place. 

[FR Doc. 2010–24161 Filed 9–28–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 19 

[FAC 2005–46; FAR Case 2009–020; Item 

V; Docket 2010–0103, Sequence 1] 

RIN 9000–AL68 

Federal Acquisition Regulation; 

Offering a Construction Requirement— 

8(a) Program 

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 

(Councils) are issuing a final rule 

amending the Federal Acquisition 

Regulation (FAR) to revise FAR subpart 

19.8, Contracting with the Small 

Business Administration (The 8(a) 

Program), to conform to the Small 

Business Administration (SBA) 

regulations. The FAR Council did not 

publish this rule for comment because 

this change will not have a significant 

effect beyond the internal operating 

procedures of the Government and will 

not have a significant effect on 

contractors or offerors. Furthermore, 

this requirement has existed in the 

Small Business Administration 

Regulations since January 1, 2009, and 

the FAR is being updated to conform to 

these regulations. This revision changes 

the location for submitting offering 

letters to SBA for a construction 

requirement for which a specific offeror 

is nominated and impacts internal 

procedures that the contracting officer is 

now required to follow. 

DATES: Effective Date: October 29, 2010 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

Karlos Morgan, Procurement Analyst, at 

(202) 501–2364. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–46, FAR case 2009–020. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This final rule amends the FAR to 

revise FAR 19.804–2(b) to conform to 

the SBA regulation 13 CFR 

124.502(b)(3). The current FAR requires 

sole source offerings for construction 


erowe on DSK5CLS3C1PROD with RULES3
60264 Federal Register / Vol. 75, No. 188 / Wednesday, September 29, 2010 / Rules and Regulations 

requirements be submitted to the SBA 

District Office for the geographical area 

where the work is to be performed. 

However, the SBA regulation requires 

the offering letters for sole source 

requirements offered on behalf of a 

specific participant be submitted to the 

SBA district office servicing that 

concern. 

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 Regulatory Flexibility Act does 

not apply to this rule. This final rule 

does not constitute a significant FAR 

revision within the meaning of FAR 

1.501–3(a) and 41 U.S.C. 418b, and 

publication for public comments is not 

required. 

The Councils will consider comments 

from small entities concerning the 

existing regulations in the part affected 

by this rule in accordance with 5 U.S.C. 

610. Interested parties must submit such 

comments separately and should cite 5 

U.S.C. 610 (FAC 2005–46, FAR Case 

2009–020) in all 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. chapter 35, 

et seq. 

List of Subjects in 48 CFR Part 19 

Government procurement. 

Dated: September 21, 2010. 

Edward Loeb, 

Director, Acquisition Policy Division. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR part 19 as set forth 

below: 

PART 19—SMALL BUSINESS 

PROGRAMS 

■ 1. The authority citation for 48 CFR 

part 19 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). 

■ 2. Amend section 19.804–2 by— 

■ a. Revising paragraph (b)(1); and 

■ b. Redesignating paragraph (b)(2) as 

paragraph (b)(3); and adding a new 

paragraph (b)(2). 

■ The revised and added text reads as 

follows: 

19.804–2 Agency offering. 

* * * * * 

(b)(1) An agency offering a 

construction requirement for which no 

specific offeror is nominated should 

submit it to the SBA District Office for 

the geographical area where the work is 

to be performed. 

(2) An agency offering a construction 

requirement on behalf of a specific 

offeror should submit it to the SBA 

District Office servicing that concern. 

* * * * * 

[FR Doc. 2010–24163 Filed 9–28–10; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 23 and 52 

[FAC 2005–46; FAR Case 2009–028; Item 

VI; Docket 2010–0097, Sequence 1] 

RIN 9000–AL64 

Federal Acquisition Regulation; 

Encouraging Contractor Policies To 

Ban Text Messaging While Driving 

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 (the 

Councils) are issuing an interim rule 

amending the Federal Acquisition 

Regulation (FAR) to implement 

Executive Order 13513, issued on 

October 1, 2009, entitled ‘‘Federal 

Leadership on Reducing Text Messaging 

while Driving.’’ This Executive Order 

was issued to demonstrate Federal 

leadership in improving safety on the 

nation’s roads and highways, and to 

enhance the efficiency of Federal 

contracting. The purpose of this policy 

is to prevent the unsafe practice of text 

messaging by Federal contractors while 

driving in connection with Government 

business. This policy further promotes 

economy and efficiency in Federal 

procurement, and seeks to prohibit the 

disruption of Government business and 

Federal procurement, as a result of 

unsafe text messaging practices. 

DATES: Effective Date: September 29, 

2010. 

Applicability Date: The rule applies to 

solicitations issued and contracts 

awarded on or after September 29, 2010. 

However, contracting officers are 

encouraged to modify existing contracts, 

in accordance with FAR 1.108(d)(3), to 

include the FAR clause. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

November 29, 2010 to be considered in 

the formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAC 2005–46, FAR Case 

2009–028, by any of the following 

methods: 

• Regulations.gov: http:// 

www.regulations.gov. Submit comments 

via the Federal eRulemaking portal by 

inputting ‘‘FAR Case 2009–028’’ under 

the heading ‘‘Enter Keyword or ID’’ and 

selecting ‘‘Search.’’ Select the link 

‘‘Submit a Comment’’ that corresponds 

with ‘‘FAR Case 2009–028.’’ Follow the 

instructions provided at the ‘‘Submit a 

Comment’’ screen. Please include your 

name, company name (if any), and ‘‘FAR 

Case 2009–028’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(MVCB), 1800 F Street, NW., Room 

4041, Attn: Hada Flowers, Washington, 

DC 20405. 

Instructions: Please submit comments 

only and cite FAC 2005–46, FAR Case 

2009–028, in all correspondence related 

to this case. All comments received will 

be posted without change to http:// 

www.regulations.gov, including any 

personal and/or business confidential 

information provided. 

FOR FURTHER INFORMATION CONTACT: For 

clarification of content, contact Mr. 

William Clark, Procurement Analyst, at 

(202) 219–1813. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at (202) 501–4755. Please 

cite FAC 2005–46, FAR Case 2009–028. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This interim rule revises the Federal 

Acquisition Regulation to implement 

Executive Order 13513, issued on 

October 1, 2009 (74 FR 51225, October 

6, 2009), entitled ‘‘Federal Leadership 

on Reducing Text Messaging while 

Driving.’’ 

Text messaging while driving causes 

drivers to take their eyes off the road 

and at least one hand off the steering 

wheel, endangering both themselves 

and others. In order to implement the 

Executive order, this interim rule 

creates a new subpart in FAR part 23 

and an associated clause to encourage 

Federal contractors and subcontractors 

to adopt and enforce policies that ban 

text messaging while driving— 


erowe on DSK5CLS3C1PROD with RULES3