2010-12334. Federal Acquisition Regulation; FAR Case 2009-027, Personal Identity Verification of Contractor Personnel

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 provide additional regulatory coverage in Subpart 4.13 and in clause 52.204-9 to reinforce the requirement of collecting from contractors all forms of Government provided identification once they are no longer needed to support a contract.

DATES:

Interested parties should submit written comments to the Regulatory Secretariat on or before July 23, 2010 to be considered in the formulation of a final rule.

ADDRESSES:

Submit comments identified by FAR case 2009-027 by any of the following methods:

• Regulations.gov: http://www.regulations.gov. Submit comments via the Federal eRulemaking portal by inputting “FAR Case 2009-027” under the heading “Enter Keyword or ID” and selecting “Search”. Select the link “Submit a Comment” that corresponds with “FAR Case 2009-027”. Follow the instructions provided at the “ Submit a Comment” screen. Please include your name, company name (if any), and “FAR Case 2009-027” on your attached document.
• Fax: [phone].
• Mail: General Services Administration, Regulatory Secretariat (MVCB), 1800 F Street, NW., Room 4041, ATTN: Hada Flowers, Washington, DC 20405.

Instructions: Please submit comments only and cite FAR case 2009-027, 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. For information pertaining to status or publication schedules, contact the Regulatory Secretariat at [phone]. Please cite FAR case 2009-027.

SUPPLEMENTARY INFORMATION:

A. Background

Department of Defense Inspector General Audit Report No. D02009-005, titled Controls Over the Contractor Common Access Card (CAC) Life Cycle, was performed to determine whether Government controls were in place over contractor CACs. A CAC is the DoD term for a Personal Identity Verification (PIV) card. A PIV card is required in order to gain access to a Federal facility. The most prevalent issue of the audit report, and the one that the Councils are undertaking with this case, was that the CACs were not adequately accounted for after contract performance.

The Councils are proposing to amend the FAR by inserting new paragraphs (d)(1) and (2) under section 4.1301, Policy. Paragraph (d)(1) will provide policy on recovering PIVs. The text in paragraph (d)(1) states that agency procedures shall ensure that Government contractors account for all forms of Government-provided identification issued to Government contractors under a contract, and return such identification to the issuing agency at the earliest of any of the following, unless otherwise determined by the agency: when no longer needed for contract performance; upon completion of a contractor employee’s employment; upon contract completion or termination. The text in paragraph (d)(2) states that the contracting officer may delay final payment under a contract if the contractor fails to comply with these requirements.

The Councils are also proposing to modify FAR clause 52.204-9, Personal Identity Verification of Contractor Personnel to be consistent with Part 4.

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 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 requirements of the actions required and the clause are not significantly burdensome. Currently, it is a common business practice to have procedures in place to revoke/return access cards when no longer in use by the contractor. An Initial Regulatory Flexibility Analysis has, therefore, not been performed. We invite comments from small businesses and other interested parties. The Councils will consider comments from small entities concerning the affected FAR Parts 4 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. (FAR case 2009-027), in correspondence.

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. Chapter 35, et seq.

List of Subjects in 48 CFR Parts 4 and 52

Government procurement.

Dated: May 17, 2010.

Edward Loeb,

Acting Director, Acquisition Policy Division.

Therefore, DoD, GSA, and NASA propose amending 48 CFR parts 4 and 52 as set forth below:

1. The authority citation for 48 CFR parts 4 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 4—ADMINISTRATIVE MATTERS

2. Amend section 4.1301 by adding paragraphs (d)(1) and (d)(2) to read as follows:

4.1301

Policy.

(d)(1) Agency procedures shall ensure that Government contractors account for all forms of Government-provided identification issued to Government contractors under a contract, i.e., the Personal Identity Verification (PIV) cards or other similar badges, and shall ensure that contractors return such identification to the issuing agency as soon as any of the following occurs, unless otherwise determined by the agency:

(i) When no longer needed for contract performance.

(ii) Upon completion of a contractor employee’s employment.

(iii) Upon contract completion or termination.

(2) The contracting officer may delay final payment under a contract if the contractor fails to comply with these requirements.

PART 52—SOLICITATION PROVISIONS AND CONTRACT CLAUSES

3. Amend section 52.204-9 by:

a. Revising the date of the clause;

b. Redesignating paragraph (b) as paragraph (d), and adding new paragraphs (b) and (c); and revising the newly designated paragraph (d).

The added and revised text reads as follows:

52.204-9

Personal Identity Verification of Contractor Personnel.

PERSONAL IDENTITY VERIFICATION OF CONTRACTOR PERSONNEL (DATE)

(b) The Contractor shall account for all forms of Government-provided identification issued to the Contractor under this contract. The contractor shall return such identification to the issuing agency at the earliest of any of the following, unless otherwise determined by the Government:

(1) When no longer needed for contract performance.

(2) Upon completion of the Contractor employee’s employment.

(3) Upon contract completion or termination.

(c) The contracting officer may delay final payment under a contract if the contractor fails to comply with these requirements.

(d) The Contractor shall insert the substance of this clause, including this paragraph (d), in all subcontracts when the subcontractor is required to have routine physical access to a Federally-controlled facility and/or routine access to a Federally-controlled information system.

(End of clause)