E8-21381. Federal Acquisition Regulation; FAR Case 2007-022, Subcontractor Requests for Bonds

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) have agreed on a final rule amending the Federal Acquisition Regulation (FAR) to clarify that the clause “Prospective Subcontractor Requests for Bonds” does not apply to commercial items.

DATES:

Effective Date: September 17, 2008.

FOR FURTHER INFORMATION CONTACT:

Mr. Michael Jackson, Procurement Analyst, at [phone] for clarification of content. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone]. Please cite FAC 2005-27, FAR case 2007-022.

SUPPLEMENTARY INFORMATION:

A. Background

The FAR clause at FAR 52.228-12, Prospective Subcontractor Requests for Bonds, implemented Section 806(a)(3) of Public Law 102-190, as amended, which specifies that, upon the request of a prospective subcontractor or supplier offering to furnish labor or material for the performance of a construction contract for which a payment bond has been furnished to the United States pursuant to the Miller Act, the contractor shall promptly provide a copy of such payment bond to the requestor. In conjunction with performance bonds, payment bonds are used in Government construction contracts to secure fulfillment of the contractor's obligations under the contract and to assure that the contractor makes all payments, as required by law, to persons furnishing labor or material in performance of the contract. The FAR clause at 52.228-12, which has an effective date of October 1, 1995, reflects the addition of Section 806(a)(3) of Pub L. 102-190, as amended by Sections 2091 and 8105 of Pub. L. 103-355, at FAR 12.503(a) and 12.504(a). When the implementation of FAR 28.106-4 occurred, the appropriate incorporation of the FAR clause at 52.228-12, Prospective Subcontractor Requests for Bonds, was accomplished, but not the incorporation of the associated statutory citation in FAR 12.503 and 12.504.

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 and Pub. L. 98-577, and publication for public comments is not required. However, the Councils will consider comments from small entities concerning the affected FAR Part 12 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 2005-27, FAR case 2007-022), in 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. 3501, et seq.

List of Subjects in 48 CFR Part 12

• Government procurement

Dated: September 9, 2008.

Al Matera,

Director, Office of Acquisition Policy.

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

PART 12—ACQUISITION OF COMMERCIAL ITEMS

1. The authority citation for 48 CFR part 12 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 12.503 by revising the section heading and adding paragraph (a)(7) to read as follows:

12.503

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

(a) * * *

(7) Section 806(a)(3) of Pub. L. 102-190, as amended by Sections 2091 and 8105 of Pub. L. 103-355, Payment Protections for Subcontractors and Suppliers (see 28.106-6).

3. Amend section 12.504 by adding paragraph (a)(13) to read as follows:

12.504

Applicability of certain laws to subcontracts for the acquisition of commercial items.

(a) * * *

(13) Section 806(a)(3) of Pub. L. 102-190, as amended by Sections 2091 and 8105 of Pub. L. 103-355, Payment Protections for Subcontractors and Suppliers (see 28.106-6).