06-6471. Federal Acquisition Regulation; FAR Case 2006-012; Contract Terms and Conditions Required to Implement Statute or Executive Orders-Commercial Items

AGENCIES:

Department of Defense (DoD), General Services Administration (GSA), and National Aeronautics and Space Administration (NASA).

ACTION:

Proposed rule.

SUMMARY:

The Civilian Agency Acquisition Council and the Defense Acquisition Regulations Council (Councils) are proposing to amend the Federal Acquisition Regulation (FAR) to update the required contract clauses that implement provisions of law or executive orders for acquisitions of commercial items.

DATES:

Interested parties should submit written comments to the FAR Secretariat on or before September 25, 2006 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FAR case 2006-012 by any of the following methods:

• ederal eRulemaking Portal: http://acquisition.gov. Follow the instructions for submitting comments.
• Agency Web site: http:// acquisition.gov/far/ProposedRules/proposed.htm. Click on the FAR case number to submit comments.
• E-mail: [e-mail]. Include FAR case 2006-012 in the subject line of the message.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (VIR), 1800 F Street, NW, Room 4035, ATTN: Laurieann Duarte, Washington, DC 20405.

Instructions: Please submit comments only and cite FAR case 2006-012 in all correspondence related to this case. All comments received will be posted without change to http://acquisition.gov/​far/​ProposedRules/​proposed.htm, including any personal and/or business confidential information provided.

FOR FURTHER INFORMATION CONTACT:

For clarification of content, contact Mr. Michael O. Jackson, Procurement Analyst, at [phone]. Please cite FAR case 2006-012. For information pertaining to status or publication schedules, contact the FAR Secretariat at [phone].

SUPPLEMENTARY INFORMATION:

A. Background

In accordance with Section 8002 of Public Law 103-355 (41 U.S.C. 264, note), contract clauses applicable to acquisitions of commercial items are limited, to the maximum extent practicable, to clauses that are—

(1)-Required to implement provisions of law or executive orders applicable to the acquisition of commercial items; or

(2)-Determined to be consistent with customary commercial practice.

The clause at FAR 52.212-5, Contract Terms and Conditions Required to Implement Statutes or Executive Orders —Commercial Items, incorporates, by reference, the contract clauses that the contracting officer may select to implement provisions of law or executive orders for acquisitions of commercial items. The clause at FAR 52.219-16, Liquidated Damages—Subcontracting Plan, is a contract clause that is required to implement 15 U.S.C. 637(d)(4)(F)(i). However, the clause at FAR 52.219-16 is not included in the list of clauses for commercial contracts in FAR 52.212-5. This proposed rule will incorporate the clause at FAR 52.219-16 in the list of clauses for commercial contracts that the contracting officer may select.

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-

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The Councils do not expect this proposed rule 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 the rule merely clarifies existing language and does not change existing policy. Therefore, an Initial Regulatory Flexibility Analysis has not been performed. The Councils will consider comments from small entities concerning the affected FAR clause at 52.212-5 in accordance with 5 U.S.C. 610. Interested parties must submit such comments separately and should cite FAR case 2006-012.

C. Paperwork Reduction Act

The Paperwork Reduction Act does not apply because the proposed 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 52

• Government procurement

Dated: July 19, 2006.

Ralph De Stefano

Director, Contract Policy Division.

Therefore, DoD, GSA, and NASA propose amending 48 CFR Part 52 as set forth below:

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES-

1. The authority citation for 48 CFR part 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).

2. Amend section 52.212-5 by redesignating paragraphs (b)(10) through (b)(35) as (b)(11) through (b)(36), respectively, and adding a new (b)(10) to read as follows:

52.212-5 Contract Terms and Conditions Required to Implement Statues or Executive Orders—Commercial Items.

* * * * *

(b) * * *

* * * * *

(10) 52.219-16, Liquidated Damages-Subcontracting Plan [Date](15 U.S.C. 637(d)(4)(F)(i)).