Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 70341 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 14, 15, and 52 

[FAC 2005–78; FAR Case 2014–001; Item 

I; Docket No. 2014–0001, Sequence No. 1] 

RIN 9000–AM78 

Federal Acquisition Regulation; 

Incorporating Section K in Contracts 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

standardize the incorporation by 

reference of representations and 

certifications in contracts. 

DATES: Effective: December 26, 2014. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Curtis E. Glover, Sr., Procurement 

Analyst, at (202) 501–1448, for 

clarification of content. For information 

pertaining to status or publication 

schedules, contact the Regulatory 

Secretariat at 202–501–4755. Please cite 

FAC 2005–78, FAR Case 2014–001. 

SUPPLEMENTARY INFORMATION: 

I. Background 

DoD, GSA, and NASA published a 

proposed rule in the Federal Register at 

78 FR 22615 on April 23, 2014, to revise 

the language at FAR subpart 4.12, 

Representations and Certifications, and 

add a new clause at FAR 52.204–19 to 

standardize the incorporation by 

reference of representations and 

certifications in contracts, regardless of 

which contract award form is used. FAR 

clause 52.212–4 has a new paragraph (v) 

to cover this issue for commercial items. 

One respondent submitted comments on 

the proposed rule. 

II. Discussion and Analysis 

The Civilian Agency Acquisition 

Council and the Defense Acquisition 

Regulations Council (the Councils) 

reviewed the comments in the 

development of the final rule. A 

discussion of the comments and the 

changes made to the rule as a result of 

those comments are provided as 

follows: 

A. Analysis of Changes 

One editorial change was made to the 

proposed rule as a result of the public 

comments. 

B. Analysis of Public Comments 

1. Edits 

Comment: The respondent 

recommended adding commas to the 

changes in FAR parts 14 and 15. 

Response: Instead of commas, the 

word ‘‘see’’ was added. 

2. Out of Scope 

Comment: The respondent suggested 

revising the last sentence in the 

introductory paragraph of FAR 4.1202 

(which will become 4.1202(a)) to 

include a reference to either 52.212–1 or 

52.212–3. 

Response: No changes were made for 

the out-of-scope suggestion. 

Comment: The respondent suggested 

that the FAR matrix be revised to 

indicate that 52.204–6, 52.204–7, 

52.204–13, and possibly, 52.204–12 are 

not applicable to commercial items. 

Response: No changes were made for 

the out-of-scope suggestion. 

III. Executive Orders 12866 and 13563 

Executive Orders (E.O.s) 12866 and 

13563 direct agencies to assess all costs 

and benefits of available regulatory 

alternatives and, if regulation is 

necessary, to select regulatory 

approaches that maximize net benefits 

(including potential economic, 

environmental, public health and safety 

effects, distributive impacts, and 

equity). E.O. 13563 emphasizes the 

importance of quantifying both costs 

and benefits, of reducing costs, of 

harmonizing rules, and of promoting 

flexibility. This is not a significant 

regulatory action and, therefore, was not 

subject to review under section 6(b) of 

E.O. 12866, Regulatory Planning and 

Review, dated September 30, 1993. This 

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

804. 

IV. Regulatory Flexibility Act 

DoD, GSA, and NASA have prepared 

a Final Regulatory Flexibility Analysis 

(FRFA) consistent with the Regulatory 

Flexibility Act, 5 U.S.C. 601, et seq. The 

FRFA is summarized as follows: 

The objective of this final rule is to 

standardize the incorporation by reference of 

representations and certifications in 

contracts. 

No issues were raised by the public in 

response to the initial regulatory flexibility 

analysis. There are no reporting, 

recordkeeping, or other compliance 

requirements in the final rule. This final rule 

is an internal procedure requiring the 

contracting officer to acknowledge the small 

entity’s representations and certifications by 

incorporating them by reference in the 

contract award document. 

This final rule does not revise or impact 

the existing representations and certifications 

submitted by small entities; therefore, this 

final rule should have no significant 

economic impact on a substantial number of 

small entities. 

Interested parties may obtain a copy 

of the FRFA from the Regulatory 

Secretariat. The Regulatory Secretariat 

has submitted a copy of the FRFA to the 

Chief Counsel for Advocacy of the Small 

Business Administration. 

V. Paperwork Reduction Act 

The final rule does not contain any 

information collection requirements that 

require the approval of the Office of 

Management and Budget under the 

Paperwork Reduction Act (44 U.S.C. 

chapter 35). 

List of Subjects in 48 CFR Parts 4, 14, 

15, and 52 

Government procurement. 

Dated: November 17, 2014. 

William Clark, 

Acting Director, Office of Government-wide 

Acquisition Policy, Office of Acquisition 

Policy, Office of Government-wide Policy. 

Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 4, 14, 15, and 52 

as set forth below: 

■ 1. The authority citation for 48 CFR 

parts 4, 14, 15, and 52 continues to read 

as follows: 

Authority: 40 U.S.C. 121(c); 10 U.S.C. 

chapter 137; and 51 U.S.C. 20113. 

PART 4—ADMINISTRATIVE MATTERS 

■ 2. Amend section 4.1200 by— 

■ a. Removing from the end of 

paragraph (a) the word ‘‘and’’; 

■ b. Removing from the end of 

paragraph (b) the period and adding ‘‘; 

and’’ in its place; and 

■ c. Adding paragraph (c) to read as 

follows: 

4.1200 Scope. 

* * * * * 

(c) Incorporate by reference the 

contractor’s representations and 

certifications in the awarded contract. 

■ 3. Amend section 4.1201 by adding 

paragraph (d) to read as follows: 

4.1201 Policy. 

* * * * * 

(d) The contracting officer shall 

incorporate the representations and 

certifications by reference in the 

contract (see 52.204–19, or for 

acquisitions of commercial items see 

52.212–4(v)). 

■ 4. Amend section 4.1202 by— 


tkelley on DSK3SPTVN1PROD with RULES3
70342 Federal Register / Vol. 79, No. 227 / Tuesday, November 25, 2014 / Rules and Regulations 

■ a. Redesignating paragraphs (a) 

through (cc) as paragraphs (a)(1) through 

(29), respectively; 

■ b. Designating the introductory 

paragraph as paragraph (a); and 

■ c. Adding a new paragraph (b) to read 

as follows: 

4.1202 Solicitation provision and contract 

clause. 

* * * * * 

(b) The contracting officer shall insert 

the clause at 52.204–19, Incorporation 

by Reference of Representations and 

Certifications, in solicitations and 

contracts. 

PART 14—SEALED BIDDING 

■ 5. Amend section 14.201–1 by adding 

a sentence at the end of paragraph (c) to 

read as follows: 

14.201–1 Uniform contract format. 

* * * * * 

(c) * * * The representations and 

certifications shall be incorporated by 

reference in the contract by using 

52.204–19 (see 4.1202(b)) or for 

acquisitions of commercial items see 

52.212–4(v). 

* * * * * 

PART 15—CONTRACTING BY 

NEGOTIATION 

■ 6. Amend section 15.204–1 by 

revising the last sentence of paragraph 

(b) to read as follows: 

15.204–1 Uniform contract format. 

* * * * * 

(b) * * * The representations and 

certifications are incorporated by 

reference in the contract by using 

52.204–19 (see 4.1202(b)) or for 

acquisitions of commercial items see 

52.212–4(v). 

* * * * * 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

52.204–8 [Amended] 

■ 7. Amend section 52.204–8 by 

removing from the introductory text 

‘‘4.1202’’ and adding ‘‘4.1202(a)’’ in its 

place. 

■ 8. Add section 52.204–19 to read as 

follows: 

52.204–19 Incorporation by Reference of 

Representations and Certifications. 

As prescribed in 4.1202(b), insert the 

following clause. 

Incorporation by Reference of 

Representations and Certifications (DEC 

2014) 

The Contractor’s representations and 

certifications, including those completed 

electronically via the System for Award 

Management (SAM), are incorporated by 

reference into the contract. 

(End of clause) 

■ 9. Amend section 52.212–4 by 

revising the date of the clause; and 

adding paragraph (v) to read as follows: 

52.212–4 Contract Terms and 

Conditions—Commercial Items. 

* * * * * 

Contract Terms And Conditions— 

Commercial Items (DEC 2014) 

* * * * * 

(v) Incorporation by reference. The 

Contractor’s representations and 

certifications, including those completed 

electronically via the System for Award 

Management (SAM), are incorporated by 

reference into the contract. 

* * * * * 

[FR Doc. 2014–27657 Filed 11–24–14; 8:45 am] 

BILLING CODE 6820–EP–P 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 22 and 53 

[FAC 2005–78; FAR Case 2014–011; Item 

II; Docket No. 2014–0011; Sequence No. 1] 

RIN 9000–AM83 

Federal Acquisition Regulation: 

Streamlining Claims Processing 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA). 

ACTION: Final rule. 

SUMMARY: DoD, GSA, and NASA are 

issuing a final rule amending the 

Federal Acquisition Regulation (FAR) to 

implement the Streamlining Claims 

Processing for Federal Contractor 

Employees Act which amends the 

United States Code (U.S.C.) to transfer 

certain functions from the Government 

Accountability Office (GAO) to the 

Department of Labor (DOL) relating to 

the processing of claims for the payment 

of workers who were not paid 

appropriate wages under certain 

provisions of the U.S.C. 

DATES: Effective: December 26, 2014. 

FOR FURTHER INFORMATION CONTACT: Mr. 

Edward Loeb, Procurement Analyst, at 

202–501–0650 for clarification of 

content. For information pertaining to 

status or publication schedules, contact 

the Regulatory Secretariat at 202–501– 

4755. Please cite FAC 2005–78, FAR 

Case 2014–011. 

SUPPLEMENTARY INFORMATION: 

I. Background 

The Streamlining Claims Processing 

for Federal Contractor Employees Act 

(the Act) (Pub. L. 113–50) was enacted 

on November 21, 2013. The Act 

transfers certain administrative 

authorities relating to the processing of 

claims for the payment of workers who 

were not paid appropriate wages under 

certain provisions of title 40 U.S.C. from 

the GAO to the DOL. One of the specific 

functions transferred to the DOL at 40 

U.S.C. 3144 and 3703 is the authority to 

pay certain wages. FAR part 22, 

Application of Labor Laws to 

Government Acquisitions, which 

addresses the withholding or 

suspending of contract payments and 

the disposition of such payments, 

requires revision to be consistent with 

the Act. Specifically, FAR 22.406–9, 

Withholding from or suspension of 

contract payments, at paragraph (c), 

includes instructions regarding the 

disposition of contract payments that 

have been withheld or suspended. Also, 

FAR 22.406–11, Contract terminations, 

includes instructions for submitting 

reports when terminations result from 

violation of labor standards clauses. 

This final rule revises these FAR 

sections to appropriately reflect the 

administrative authorities of the DOL, 

and to provide a link to the DOL Web 

site and guidance for disbursement of 

withheld funds. Reference to Standard 

Form (SF) 1093, Schedule of 

Withholdings Under the Construction 

Wage Rate Requirements Statute (40 

U.S.C. Chapter 31, Subchapter IV, 

Section 3144) and/or the Contract Work 

Hours and Safety Standards Statute (40 

U.S.C. Chapter 37, Section 3703), is 

deleted. The SF 1093 was previously 

used to disburse funds to the GAO and 

is now obsolete. 

II. Publication of This Final Rule for 

Public Comment Is Not Required by 

Statute 

‘‘Publication of proposed 

regulations’’, 41 U.S.C. 1707, is the 

statute which applies to the publication 

of the Federal Acquisition Regulation. 

Paragraph (a)(1) of the statute requires 

that a procurement policy, regulation, 

procedure or form (including an 

amendment or modification thereof) 

must be published for public comment 

if it relates to the expenditure of 

appropriated funds, and has either a 

significant effect beyond the internal 

operating procedures of the agency 

issuing the policy, regulation, procedure 

or form, or has a significant cost or 


tkelley on DSK3SPTVN1PROD with RULES3