Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31561 

information for source selection officials 

than that contained in the overall 

contract evaluation (e.g., when the 

scope of the basic contract is very broad 

and the nature of individual orders 

could be significantly different). This 

evaluation need not consider the 

requirements under paragraph (g) of this 

section unless the contracting officer 

deems it appropriate. 

(e) Past performance evaluations shall 

be prepared for each construction 

contract of $550,000 or more, and for 

each construction contract terminated 

for default regardless of contract value. 

Past performance evaluations may also 

be prepared for construction contracts 

below $550,000. 

(f) Past performance evaluations shall 

be prepared for each architect-engineer 

services contract of $30,000 or more, 

and for each architect-engineer services 

contract that is terminated for default 

regardless of contract value. Past 

performance evaluations may also be 

prepared for architect-engineer services 

contracts below $30,000. 

(g) Past performance evaluations shall 

include an assessment of contractor 

performance against, and efforts to 

achieve, the goals identified in the small 

business subcontracting plan when the 

contract includes the clause at 52.219– 

9, Small Business Subcontracting Plan. 

(h) Agencies shall not evaluate 

performance for contracts awarded 

under Subpart 8.7. 

■ 14. Amend section 42.1503 by 

revising paragraphs (a), (c), (d), and (e) 

to read as follows: 

42.1503 Procedures. 

(a) Agency procedures for the past 

performance evaluation system shall 

generally provide for input to the 

evaluations from the technical office, 

contracting office and, where 

appropriate, end users of the product or 

service. Agency procedures shall 

identify those responsible for preparing 

interim and final evaluations. Those 

individuals identified may obtain 

information for the evaluation of 

performance from the program office, 

administrative contracting office, end 

users of the product or service, and any 

other technical or business advisor, as 

appropriate. Interim evaluations shall be 

prepared as required. 

* * * * * 

(c) Agencies shall submit past 

performance reports electronically to 

the Past Performance Information 

Retrieval System (PPIRS) at 

www.ppirs.gov. The process for 

submitting such reports to PPIRS shall 

be in accordance with agency 

procedures. 

(d) Any past performance information 

systems used for maintaining contractor 

performance information and/or 

evaluations should include appropriate 

management and technical controls to 

ensure that only authorized personnel 

have access to the data. 

(e) Agencies shall use the past 

performance information in PPIRS that 

is within three years (six for 

construction and architect-engineer 

contracts) of the completion of 

performance of the evaluated contract or 

order. 

PART 53—FORMS 

53.236–1 Construction. 

■ 15. Amend section 53.236–1 by 

removing and reserving paragraph (a). 

■ 16. Amend section 53.236–2 by 

revising the section heading as set forth 

below; and removing paragraph (c). The 

revised text reads as follows: 

53.236–2 Architect-engineer services (SF’s 

252 and 330). 

* * * * * 

53.301–1420 and 53.301–1421 [Removed] 

■ 17. Remove sections 53.301–1420 and 

53.301–1421. 

[FR Doc. E9–15436 Filed 6–30–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Parts 4, 9, and 52 

[FAC 2005–34; FAR Case 2008–009; Item 

II; Docket 2009–0020, Sequence 1] 

RIN 9000–AL28 

Federal Acquisition Regulation; FAR 

Case 2008–009, Prohibition on 

Contracting with Inverted Domestic 

Corporations 

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 implement Section 

743 of Division D of the Omnibus 

Appropriations Act, 2009 (Public Law 

111–8). Section 743 of Division D of this 

Act prohibits the award of contracts 

using appropriated funds to any foreign 

incorporated entity that is treated as an 

inverted domestic corporation or to any 

subsidiary of one. 

The Department of Homeland 

Security (DHS) has had its own rule 

prohibiting contracting with inverted 

domestic corporations since December 

2003 (see 48 CFR Subpart 3009.1). The 

DHS rule implements section 835 of the 

Homeland Security Act of 2002 (P.L. 

107–296, 6 U.S.C. 395). 

DATES: Effective Date: July 1, 2009. 

Comment Date: Interested parties 

should submit written comments to the 

Regulatory Secretariat on or before 

August 31, 2009 to be considered in the 

formulation of a final rule. 

ADDRESSES: Submit comments 

identified by FAR case 2008–009, by 

any of the following methods: 

•Regulations.gov: http:// 

www.regulations.gov. 

Submit comments via the Federal 

eRulemaking portal by inputting ‘‘FAR 

Case 2008–009’’ under the heading 

‘‘Comment or Submission’’. Select the 

link ‘‘Send a Comment or Submission’’ 

that corresponds with FAR Case 2008– 

009. Follow the instructions provided to 

complete the ‘‘Public Comment and 

Submission Form’’. Please include your 

name, company name (if any), and 

‘‘FAR Case 2008–009’’ on your attached 

document. 

• Fax: 202–501–4067. 

• Mail: General Services 

Administration, Regulatory Secretariat 

(VPR), 1800 F Street, NW, Room 4041, 

ATTN: Hada Flowers, Washington, DC 

20405. 

Instructions: Please submit comments 

only and cite FAC 2005–34, FAR case 

2008–009, 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: Ms. 

Meredith Murphy, Procurement 

Analyst, at (202) 208–6925 for 

clarification of content. Please cite FAC 

2005–34, FAR case 2008–009. For 

information pertaining to status or 

publication schedules, contact the 

Regulatory Secretariat at (202) 501– 

4755. 

SUPPLEMENTARY INFORMATION: 

A. Background 

This rule implements section 743 of 

Division D of the Omnibus 

Appropriations Act, 2009 (Public Law 

111–8). Although this is effective for 

Fiscal Year 2009 funds, the Councils 

31562 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

have included the clause requirement 

when using Fiscal Year 2006, 2007, and 

2008 funds, when similar prohibitions 

were included in appropriations acts. 

Section 743 of Division D of this Act 

prohibits the use of Federal 

appropriated funds for Fiscal Year 2009 

to contract with any inverted domestic 

corporation, as defined at section 835(b) 

of the Homeland Security Act of 2002 

(Pub. L. 107–296, 6 U.S.C. 395(b)) or any 

subsidiary of such an entity. 

What is an inverted domestic 

corporation. An inverted domestic 

corporation is one that used to be 

incorporated in the United States, or 

used to be a partnership in the United 

States, but now is incorporated in a 

foreign country, or is a subsidiary whose 

parent corporation is incorporated in a 

foreign country. The reason a 

corporation would do this is to avoid 

United States taxes on business income 

generated in foreign countries. 

Bermuda, Barbados, and the Cayman 

Islands are well known tax havens; the 

statute is not restricted to these 

countries however. A term in wide use 

for these corporations is ‘‘corporate 

expatriate’’. Congress has enacted both 

contract statutes and tax statutes to try 

to discourage corporations from 

expatriating themselves. 

Tax statute. Congress enacted 26 

U.S.C. 7874 to remove the tax benefits 

from the most egregious of these 

transactions, where at least 80 percent 

(80%) of the stock is now held by 

former shareholders or partners and 

where the foreign entity plus companies 

connected to it by 50 percent (50%) or 

more ownership do not have substantial 

business activities in the foreign 

country. The tax consequence is that the 

parent foreign corporation must then 

file a United States income tax return as 

a domestic corporation, not a foreign 

corporation. 

Contracting and appropriations 

statutes. The contracting statutes are 

similar to the tax statute, but not 

identical. Congress, in 6 U.S.C. 395, 

restricted the Department of Homeland 

Security (DHS) from awarding contracts 

to inverted domestic corporations, 

either parent or subsidiary. Congress 

further restricted all executive branch 

agencies in Public Law 111–8, from 

using Fiscal Year 2009 monies ‘‘for any 

Federal Government contract with 

any...inverted domestic corporation...’’. 

This statute borrowed the definition of 

inverted domestic corporation from the 

DHS statute, which in turn is related to 

the tax statute. The FAR is 

implementing Public Law 111–8 by 

further reliance on the tax statute and 

Internal Revenue Service regulations, as 

the Councils do not believe that 

Congress intended to set up two 

different statutory schemes for handling 

inverted domestic corporations. A 

foreign corporation that has to file a tax 

return as a domestic corporation is 

automatically going to be an inverted 

domestic corporation for contracting 

purposes as well. The Councils note that 

there is an important difference between 

the tax statute and the other statutory 

definitions: the tax statute only applies 

to incorporations completed after March 

4, 2003. An incorporation that took 

place on or before March 4, 2003, will 

not escape the contracting and fiscal 

ban. 

Statutory definition of inverted 

domestic corporation. Section 835(b) 

defines an inverted domestic 

corporation to mean a foreign 

incorporated entity that, pursuant to a 

plan (or a series of related transactions) 

(1) directly or indirectly acquires 

substantially all of the properties held 

directly or indirectly by a domestic 

corporation or substantially all of the 

properties constituting a trade or 

business of a domestic partnership; (2) 

acquires at least eighty percent (80%) of 

the stock (by vote or value) of the entity 

held (a) in the case of an acquisition 

with respect to a domestic corporation, 

by former shareholders of the domestic 

corporation by reason of holding stock 

in the domestic corporation; or (b) in the 

case of an acquisition with respect to a 

domestic partnership, by former 

partners of the domestic partnership by 

reason of holding a capital or profits 

interest in the domestic partnership; 

and (3) after the acquisition, the 

expanded affiliated group that includes 

the entity does not have substantial 

business activities in the foreign country 

in which or under the law of which the 

entity is created or organized when 

compared to the total business activities 

of such expanded affiliated group. 

Which contractors are inverted 

domestic corporations. The Councils do 

not have this information. The Councils 

and Government contracting officers by 

law do not have access to tax return 

information. We cannot determine 

whether a contractor’s status and history 

mean it falls under the statutory 

requirements. Each contractor will have 

to analyze its own history and current 

status. This should be very easy to 

determine for sole proprietorships, 

partnerships, and domestic corporations 

without a foreign parent, as none of 

these could be inverted domestic 

corporations. It will also be easy for a 

foreign corporation which filed last 

year’s income tax return as a domestic 

corporation and its subsidiaries, which 

automatically fall under the contracting 

ban. The harder case will be for foreign 

corporations that were domestic 

corporations or partnerships before 

2004, and their subsidiaries. A list of 

high profile inversions occurring before 

February 2002 can be found in an article 

(Mihir A. Desai and James R. Hines, Jr., 

‘‘Expectations and Expatriations: 

Tracing the Causes and Consequences of 

Corporate Inversions,’’ 55 National Tax 

Journal 409, 418–20 (2002)): Triton 

Energy, Tyco, Fruit of the Loom, 

Transocean, Everest Reinsurance, Foster 

Wheeler, Cooper Industries, Global 

Marine, Ingersoll Rand, Nabors 

Industries, and Noble Drilling. The 

Councils do not know whether these 

corporations would fall under the 

contracting ban (because of the 80 

percent (80%) rule and the substantialbusiness test). 

Funds covered. Section 743 of Public 

Law 111–8 contains the words ‘‘None of 

the funds appropriated or otherwise 

made available by this or any other Act 

may be used for any Federal 

Government contract...’’. The 

Government Accountability Office 

(GAO) has stated that ‘‘The words ‘or 

any other Act’ in a provision addressing 

funds appropriated in or made available 

by ‘this or any other act’ are not words 

of futurity. They merely refer to any 

other appropriations act for the same 

fiscal year.’’ Volume One of the GAO 

Red Book at page 2–36. This means 

Section 743 does not apply to future 

fiscal years, unless Congress extends it 

in future legislation. However, it does 

apply to all Fiscal Year 2009 monies, 

whether the agency appropriations are 

directly covered by Public Law 111–8 or 

by a different 2009 appropriations act. 

FAR coverage. The Councils are 

considering the prohibition as a 

prohibited business practice and have 

chosen to place coverage in the FAR 

Subpart entitled Responsible 

Prospective Contractors, 9.1. In addition 

to the definition of inverted domestic 

corporation and the prohibition on 

contracting with one, newly added FAR 

section 9.108 includes the limited 

Secretarial waiver authority granted by 

the statute and a representation 

requirement to be included in 

solicitations for goods and services. 

The new solicitation provision at 

52.209–2, Prohibition on Contracting 

with Inverted Domestic Corporations— 

Representation, provides the relevant 

definition and the condition that, by 

submission of its offer, the offeror 

represents that it is not an inverted 

domestic corporation or a subsidiary of 

an inverted domestic corporation. If the 

offeror cannot affirmatively make the 

representation, then it is not allowed to 

submit an offer absent a Secretarial 

waiver that contracting with the 

Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 31563 

inverted domestic corporation or its 

subsidiary is in the interest of national 

security. 

Contracting officers should rigorously 

examine circumstances known to them 

that would lead a reasonable business 

person to question the contractor selfcertification, as the appropriation 

restriction applies to accountable 

Government officers, and if willfully 

and knowingly violated, may result in 

criminal penalties. 

The Act does not require flow down 

of the representation provision. Section 

743 addresses only contracts entered 

into by Executive agencies. However, 

the Councils are taking public 

comments on this issue. 

Applicability to commercial item 

contracts. Section 8003 of Public Law 

103–355 (41 U.S.C. 430) is intended to 

limit the applicability of procurement 

laws to commercial items. Section 430 

only permits exemption from a covered 

law, which is ‘‘any provision of law 

that...sets forth policies, procedures, 

requirements, or restrictions for the 

procurement of property or services by 

the Federal Government.’’ Also, 

exemption under section 430 is not 

permitted if the provision of law 

contains criminal or civil penalties. In 

any event, the law may be applied if the 

Federal Acquisition Regulatory Council 

makes a written determination that it is 

not in the best interest of the Federal 

Government to exempt commercial item 

contracts from the covered law. 

Therefore, given that Section 743 of 

Division D of the Omnibus 

Appropriations Act, 2009 (Public Law 

111–8) prohibits the use of funds for any 

Federal Government contract with an 

inverted domestic corporation or to any 

subsidiary of one, the FAR Council has 

determined that the rule applies to 

contracts for commercial items. 

Applicability to Commercially 

Available Off-The-Shelf (COTS) item 

contracts. Section 4203 of Public Law 

104–106, the Clinger-Cohen Act of 1996 

(41 U.S.C. 431), governs the 

applicability of laws to the procurement 

of commercially available off-the-shelf 

(COTS) items, and is intended to limit 

the applicability of laws to them. 

Clinger-Cohen provides that if a 

provision of law contains criminal or 

civil penalties, or if the Administrator 

for Federal Procurement Policy makes a 

written determination that it is not in 

the best interest of the Federal 

Government to exempt COTS item 

contracts, the provision of law will 

apply. The same applies for 

subcontracts for COTS items. 

Therefore, given the requirements of 

Section 743 of Division D of the 

Omnibus Appropriations Act of 2009 

(Public Law 111–8) which prohibits the 

use of funds for any Federal 

Government contract with an inverted 

domestic corporation or to any 

subsidiary of one, and the intent of the 

law, the Administrator of the Office of 

the Federal Procurement Policy, has 

determined that it is in the best interest 

of the Federal Government to apply this 

law to Commercially Available Off-TheShelf (COTS) item contracts and 

subcontracts, as defined at FAR 2.101. 

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, 1993. This rule is 

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

B. Regulatory Flexibility Act 

The interim rule is not expected to 

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 will only impact an 

offeror that is an inverted domestic 

corporation and wants to do business 

with the Government. It is expected that 

the number of entities impacted by this 

rule will be minimal. Small business 

concerns are unlikely to have been 

incorporated in the U.S. and then 

reincorporated in a tax haven; the major 

players in these transactions are 

reportedly the very large multinational 

corporations. 

Therefore, an Initial Regulatory 

Flexibility Analysis has not been 

performed. The Councils will consider 

comments from small entities 

concerning the affected FAR Parts 4, 9, 

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 2005–34, FAR 

case 2008–009), 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. 

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 because it 

implements section 743 of Division D of 

Public Law 111–8, which is currently in 

effect. 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, 9, 

and 52 

Government procurement. 

Dated: June 25, 2009. 

Al Matera, 

Director, Office of Acquisition Policy. 

■ Therefore, DoD, GSA, and NASA 

amend 48 CFR parts 4, 9, and 52 as set 

forth below: 

■ 1. The authority citation for 48 CFR 

parts 4, 9, and 52 continues to read as 

follows: 

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

chapter 137; and42 U.S.C. 2473(c). 

PART 4—ADMINISTRATIVE MATTERS 

■ 2. Amend section 4.1202 by 

redesignating paragraphs (f) through (cc) 

as (g) through (dd) respectively, and 

adding a new paragraph (f) to read as 

follows: 

4.1202 Solicitation provision and contract 

clause. 

* * * * * 

(f) 52.209–2, Prohibition on 

Contracting with Inverted Domestic 

Corporations—Representation. 

* * * * * 

PART 9—CONTRACTOR 

QUALIFICATIONS 

■ 3. Amend section 9.104–1 by revising 

paragraph (g) to read as follows: 

9.104–1 General standards. 

* * * * * 

(g) Be otherwise qualified and eligible 

to receive an award under applicable 

laws and regulations (see also inverted 

domestic corporation prohibition at 

FAR 9.108). 

■ 4. Add sections 9.108 through 9.108– 

5 to read as follows: 

9.108 Prohibition on contracting with 

inverted domestic corporations. 

9.108–1 Definition. 

Inverted domestic corporation, as 

used in this section, means a foreign 

incorporated entity which is treated as 

an inverted domestic corporation under 

6 U.S.C. 395(b), i.e., a corporation that 

used to be incorporated in the United 

States, or used to be a partnership in the 

United States, but now is incorporated 

in a foreign country, or is a subsidiary 

whose parent corporation is 

incorporated in a foreign country, that 

31564 Federal Register / Vol. 74, No. 125 / Wednesday, July 1, 2009 / Rules and Regulations 

meets the criteria specified in 6 U.S.C. 

395(b), applied in accordance with the 

rules and definitions of 6 U.S.C. 395(c). 

9.108–2 Relationship with the Internal 

Revenue Code and Treasury regulations. 

(a) Inverted domestic corporations are 

covered not only in the Department of 

Homeland Security statute at 6 U.S.C. 

395, but also are similarly covered in 

the Internal Revenue Code at 26 U.S.C. 

7874. A foreign corporation is treated as 

an inverted domestic corporation for 

U.S. Federal income tax purposes, 

rather than as a foreign corporation, if— 

(1) At least 80 percent (80%) of the 

stock is now held by former 

shareholders of the domestic 

corporation or partners of the domestic 

partnership; and 

(2) The foreign entity plus companies 

connected to it by 50 percent (50%) or 

more ownership do not have substantial 

business activities in the foreign 

country. 

(b) A foreign corporation that is 

treated as an inverted domestic 

corporation for U.S. Federal income tax 

purposes, is also treated as one for 

purposes of this section. 

(c) A foreign entity that escapes the 

tax consequence of 26 U.S.C. 7874 only 

because the inversion transactions were 

completed on or before the March 4, 

2003, date in section 7874, is 

nevertheless treated as an inverted 

domestic corporation for purposes of 6 

U.S.C. 395 (which does not have a 

limiting date) and therefore also for 

purposes of this section. 

9.108–3 Prohibition. 

(a) Section 743 of Division D of the FY 

2009 Omnibus Appropriations Act 

(Public Law 111–8) prohibits the use of 

2009 appropriated funds for contracting 

with any foreign incorporated entity 

that is treated as an inverted domestic 

corporation, or with a subsidiary of such 

a corporation. The same restriction was 

also contained in the Fiscal Year 2006 

through 2008 appropriations acts. In 

order to be eligible for contract award 

when using Fiscal Year 2006 through 

Fiscal Year 2009 funds, an offeror must 

represent that it is not an inverted 

domestic corporation or subsidiary. Any 

offeror that cannot so represent is 

ineligible for award of a contract using 

such appropriated funds. 

(b) Contracting officers should 

rigorously examine circumstances 

known to them that would lead a 

reasonable business person to question 

the contractor self—certification and, 

after consultation with legal counsel, 

take appropriate action where that 

questionable self-certification cannot be 

verified. 

9.108–4 Waiver. 

Any agency head may waive the 

requirement of subsection 9.108–3 for a 

specific contract if the agency head 

determines in writing that the waiver is 

required in the interest of national 

security, documents the determination, 

and reports it to the Congress. 

9.108–5 Solicitation provision. 

When using funds appropriated in 

Fiscal Year 2006 through Fiscal Year 

2009, the contracting officer shall 

include the provision at 52.209–2, 

Prohibition on Contracting with 

Inverted Domestic Corporations— 

Representation, in each solicitation 

issued after July 1, 2009 for the 

acquisition of products or services (see 

FAR 52.212–3 for solicitations issued 

under Part 12), unless waived in 

accordance with FAR 9.108–4. 

PART 52—SOLICITATION PROVISIONS 

AND CONTRACT CLAUSES 

■ 5. Add section 52.209–2 to read as 

follows: 

52.209–2 Prohibition on Contracting with 

Inverted Domestic Corporations— 

Representation. 

As prescribed in 9.108–5, insert the 

following provision: 

PROHIBITION ON CONTRACTING WITH 

INVERTED DOMESTIC CORPORATIONS— 

REPRESENTATION (JUL 2009) 

(a) Definition. Inverted domestic 

corporation means a foreign incorporated 

entity which is treated as an inverted 

domestic corporation under 6 U.S.C. 395(b), 

i.e., a corporation that used to be 

incorporated in the United States, or used to 

be a partnership in the United States, but 

now is incorporated in a foreign country, or 

is a subsidiary whose parent corporation is 

incorporated in a foreign country, that meets 

the criteria specified in 6 U.S.C. 395(b), 

applied in accordance with the rules and 

definitions of 6 U.S.C. 395(c). 

(b) Relation to Internal Revenue Code. A 

foreign entity that is treated as an inverted 

domestic corporation for purposes of the 

Internal Revenue Code at 26 U.S.C. 7874 (or 

would be except that the inversion 

transactions were completed on or before 

March 4, 2003), is also an inverted domestic 

corporation for purposes of 6 U.S.C. 395 and 

for this solicitation provision (see FAR 

9.108). 

(c) Representation. By submission of its 

offer, the offeror represents that it is not an 

inverted domestic corporation and is not a 

subsidiary of one. 

(End of provision) 

■ 6. Amend section 52.212–3 by— 

■ a. Revising the date of the provision; 

■ b. In paragraph (a), adding, in 

alphabetical order, the definition 

‘‘Inverted domestic corporation’’; 

■ c. Removing from paragraph (b)(2) ‘‘(c) 

through (m)’’ and adding ‘‘(c) through 

(n)’’ in its place; 

■ d. Adding paragraph (n). 

The revised and added text reads as 

follows: 

52.212–3 Offeror Representations and 

Certifications—Commercial Items. 

* * * * * 

OFFEROR REPRESENTATIONS AND 

CERTIFICATIONS—COMMERCIAL ITEMS 

(JUL 2009) 

* * * * * 

(a) * * * 

* * * * * 

Inverted domestic corporation means a 

foreign incorporated entity which is treated 

as an inverted domestic corporation under 6 

U.S.C. 395(b), i.e., a corporation that used to 

be incorporated in the United States, or used 

to be a partnership in the United States, but 

now is incorporated in a foreign country, or 

is a subsidiary whose parent corporation is 

incorporated in a foreign country, that meets 

the criteria specified in 6 U.S.C. 395(b), 

applied in accordance with the rules and 

definitions of 6 U.S.C. 395(c). 

* * * * * 

(n) Prohibition on Contracting with 

Inverted Domestic Corporations. (1) Relation 

to Internal Revenue Code. A foreign entity 

that is treated as an inverted domestic 

corporation for purposes of the Internal 

Revenue Code at 26 U.S.C. 7874 (or would 

be except that the inversion transactions 

were completed on or before March 4, 2003), 

is also an inverted domestic corporation for 

purposes of 6 U.S.C. 395 and for this 

solicitation provision (see FAR 9.108). 

(2) Representation. By submission of its 

offer, the offeror represents that it is not an 

inverted domestic corporation and is not a 

subsidiary of one. 

* * * * * 

[FR Doc. E9–15434 Filed 6–30–09; 8:45 am] 

BILLING CODE 6820–EP–S 

DEPARTMENT OF DEFENSE 

GENERAL SERVICES 

ADMINISTRATION 

NATIONAL AERONAUTICS AND 

SPACE ADMINISTRATION 

48 CFR Part 9 

[FAC 2005–34; FAR Case 2008–028; Item 

III; Docket 2009–0021; Sequence 1] 

RIN 9000–AL33 

Federal Acquisition Regulation; FAR 

Case 2008–028, Role of Interagency 

Committee on Debarment and 

Suspension 

AGENCIES: Department of Defense (DoD), 

General Services Administration (GSA), 

and National Aeronautics and Space 

Administration (NASA).