E9-7030. Federal Acquisition Regulation; FAR Case 2008-026, GAO Access to Contractor Employees

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 871 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA) (Pub. L. 110-417) which allows the Government Accountability Office to interview current contractor employees during the audit of the contractor's records. FAR 52.215-2(d)(1), Audit and Records-Negotiation, is revised to allow for the required access by inserting before the period: “and to interview any current employee regarding such transactions”. FAR 52.214-26(c), Audit and Records-Sealed Bidding is revised to allow for the required access by inserting before the period: “and also the right to interview any current employee regarding such transactions”.

DATES:

Effective Date: March 31, 2009.

Comment Date: Interested parties should submit written comments to the FAR Secretariat on or before June 1, 2009 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FAC 2005-32, FAR case 2008-026, by any of the following methods:

• Regulations.gov: http://www.regulations.gov.

Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2008-026” under the heading “Comment or Submission”. Select the link “Send a Comment or Submission” that corresponds with FAR Case 2008-026. Follow the instructions provided to complete the “Public Comment and Submission Form”. Please include your name, company name (if any), and “FAR Case 2008-026” on your attached document.

• Fax: [phone].
• Mail: General Services Administration, FAR Secretariat (VPR), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

Instructions: Please submit comments only and cite FAC 2005-32, FAR case 2008-026, 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. Suzanne Neurauter, Procurement Analyst, at [phone] for clarification of content. Please cite FAC 2005-32, FAR case 2008-026. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone].

SUPPLEMENTARY INFORMATION:

A. Background

Section 871 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA) (Pub. L. 110-417) added language allowing the Comptroller General to interview current employees regarding transactions being examined during an audit of contracting records. The Act revises 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1) by inserting before the period: “and to interview any current employee regarding such transactions”. To implement the Act, FAR clauses 52.215-2, Audit and Records-Negotiation and 52.214-26, Audit and Records-Sealed Bidding, are amended to add the required statutory language. The statute did not specify that Section 871 apply to commercial item contracts and therefore was not applied to FAR clause 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Order-Commercial Items. Section 34 of the Office of Federal Procurement Policy Act (OFPP), 41 U.S.C. 430, exempts commercial item acquisitions from new provisions of law, such as Section 871, unless (1) the law provides criminal or civilian penalties, (2) the law expressly refers to 41 U.S.C. 430 and states that it applies to commercial item contracts, or (3) the FAR Council makes a written determination that it would not be in the best interest of the Federal Government to exempt commercial item contracts. Thus, this new provision was added to the list of inapplicable laws at FAR 12.503(a).

This is a significant regulatory action and, therefore, was subject to review under Section 6 of Executive Order 12886, 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 Councils do not expect this interim rule to have a significant economic impact on a substantial number of small entities within the meaning of the Regulatory Flexibility Act, at 5 U.S.C. 601, et seq. Only a small number of small businesses are audited by GAO. Currently many GAO audits of small business contractors include contractor employee interviews. This Act is designed to cover those incidents in which contractor employees are not able to be interviewed. Therefore, it is not anticipated that interviewing any current employee regarding such contract transactions will have a significant impact.

Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR Parts 12 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 2005-32, FAR Case 2008-026 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 to implement statutory requirements of Section 871 of the Duncan Hunter National Defense Authorization Act for Fiscal Year 2009 (NDAA) (Pub. L. 110-417) which went into effect October 14, 2008. The Act revises 41 U.S.C. 254d (c)(1) and 10 U.S.C. 2313 (c)(1) by inserting before the period: “and to interview any current employee regarding such transactions”. To implement the Act, the clauses at FAR 52.215-2(d)(1) and 52.214-26(c) are amended to add the required statutory language. The Councils believe that the interim rule in the FAR will provide the contracting officer the relevant regulatory guidance needed when addressing requirements outlined in this rule. 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 12 and 52

• Government procurement

Dated: March 25, 2009.

Al Matera,

Director, Office of Acquisition Policy.

Therefore, DoD, GSA, and NASA amend 48 CFR parts 12 and 52 as set forth below:

1. The authority citation for 48 CFR parts 12 and 52 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).

PART 12—ACQUISITION OF COMMERCIAL ITEMS

2. Amend section 12.503 by adding paragraph (a)(8) to read as follows:

12.503

Applicability of certain laws to Executive agency contracts for the acquisition of commercial items.

(a) * * *

(8) 41 U.S.C. 254d(c)(1) and 10 U.S.C. 2313(c)(1), GAO Access to Contractor Employees, Section 871 of Pub. L. 110-417 (see 52.214-26 and 52.215-2).

* * * * *

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Amend section 52.214-26 by revising the date of the clause and paragraph (c) to read as follows:

52.214-26

Audit and Records—Sealed Bidding.

* * * * *

Audit and Records-Sealed Bidding (MAR 2009)

* * * * *

(c) Comptroller General. In the case of pricing any modification, the Comptroller General of the United States, or an authorized representative, shall have the same rights as specified in paragraph (b) of this clause and also the right to interview any current employee regarding such transactions.

* * * * *

(End of clause)

4. Amend section 52.215-2 by revising the date of the clause and paragraph (d)(1) to read as follows:

52.215-2

Audit and Records—Negotiation.

* * * * *

Audit and Records—Negotiation (MAR 2009)

* * * * *

(d) Comptroller General. (1) The Comptroller General of the United States, or an authorized representative, shall have access to and the right to examine any of the Contractor's directly pertinent records involving transactions related to this contract or a subcontract hereunder and to interview any current employee regarding such transactions.

* * * * *

(End of clause)